Criminal law - Conviction - Simple offence included on District Court indictment - District Court lacked jurisdiction to deal with simple offence - Proper construction of s 169 Criminal Procedure Act 2004 (WA) - Application under s 169(3) Criminal Procedure Act - Nature and scope of the court's discretion - Something more than mere fact of jurisdictional error required

Criminal law - Sentence - Objective seriousness of offences - Whether findings of sentencing judge open on the evidence - Turns on own facts

Criminal law - Sentence - Delay of 19 months between charging and sentencing - Whether sentencing judge erred in finding that the delay 'means very little' in terms of the appropriate sentence - Turns on own facts

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a)

Criminal Code (WA), s 62, s 63, s 65, s 67, s 317(1), s 444

Criminal Procedure Act 2004 (WA), s 3(1), s 23(1), s 85(1), s 147(1), s 169, cl 2(1) of sch 1

District Court of Western Australia Act 1969 (WA), s 8(1), s 42(1), s 43(1)

Interpretation Act 1984 (WA), s 5, s 9, s 19(1)(a), s 67

Sentencing Act 1995 (WA), s 6, s 7, s 32, s 33

Altham v The Queen (1992) 62 A Crim R 126

Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198

Bounds v The Queen [2006] HCA 39; (2006) 228 ALR 190

Bounds v The Queen [2005] WASCA 1

Boxer v The Queen (1995) 14 WAR 505

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Chan v The Queen (1989) 38 A Crim R 337

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

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

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

Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396

Lovegrove v The Queen [1961] Tas SR 106

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

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

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

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

Pedersen v The State of Western Australia [2010] WASCA 175

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Harrison [1997] UKHL 5; (1909) 2 Cr App R 94

R v Hill [1979] VicRp 33; [1979] VR 311

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Todd (1982) 2 NSWLR 517

Schugman v Menz [1970] SASR 381

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

Staveley v Rowe [2010] WASC 35

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

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

Weston v The Queen [2000] WASCA 188

Wilson v The State of Western Australia [2010] WASCA 82

1 BUSS JA: Each of the appellants has appealed against his conviction for taking part in an unlawful assembly, contrary to s 63 of the Criminal Code (WA) (the Code). Also, each of them has made an application to this court under s 169(3) of the Criminal Procedure Act 2004 (WA) (the CPA) in relation to his conviction for that offence. Further, each of them has appealed against the sentences he received for taking part in the unlawful assembly and for other related offences.

The background facts and the circumstances of the offending

2 The background facts and the circumstances of the offending are set out in the reasons of Murphy JA, with whom Hall J has expressed his agreement. I will not repeat them except to the extent necessary to explain my reasons.

Indictment DER 9 of 2009 dated 11 June 2010

3 The appellant in appeals CACR 109 and 180 of 2010 (Mr Ward) and the appellant in appeals CACR 110 and 181 of 2010 (Mr Wungundin) were jointly charged with Pedro Sam Palacios, Keith Montgomery Tataya and Brett Rastus on indictment DER 9 of 2009 dated 11 June 2010. The indictment contained 13 counts, all of which related to offending that occurred at about and after midnight on 28 November 2008. The offending arose out of a feud between two Aboriginal groups in Derby which erupted earlier in the night on 28 November 2008. The indictment dated 11 June 2010 included four counts relating to Mr Ward and five counts relating to Mr Wungundin.

4 On 22 June 2010, Mr Ward was convicted, on his pleas of guilty in the District Court before Murray J, on four counts in the indictment dated 11 June 2010. These counts alleged that:

(a) On 29 November 2008 at Derby, Mr Ward took part in an unlawful assembly, contrary to s 63 of the Code: count 1.

(b) On 29 November 2008 at 3 Nuytsia Way, Derby, Mr Ward wilfully and unlawfully damaged a house and fencing, contrary to s 444 of the Code: count 6.

(c) On 29 November 2008 at 38 Marmion Street, Derby, Mr Ward wilfully and unlawfully damaged a motor vehicle, contrary to s 444 of the Code: count 8.

(d) On 29 November 2008 at 14A Baobab Street, Derby, Mr Ward wilfully and unlawfully damaged a motor vehicle, contrary to s 444 of the Code: count 11.

5 The sentencing judge sentenced Mr Ward to 6 months' immediate imprisonment on count 1 (unlawful assembly) and 18 months' immediate imprisonment on each of counts 6, 8 and 11 (wilful and unlawful damage). The sentences were ordered to be served concurrently. The total effective sentence was therefore 18 months' immediate imprisonment. A parole eligibility order was made.

6 Mr Ward appeals to this court against his conviction on count 1 (unlawful assembly) and against the sentencing decision generally.

Appeals CACR 110 and 181 of 2010: Mr Wungundin

7 Also on 22 June 2010, Mr Wungundin was convicted, on his pleas of guilty in the District Court before Murray J, on five counts in the indictment dated 11 June 2010. These counts alleged that:

(a) On 29 November 2008 at Derby, Mr Wungundin took part in an unlawful assembly, contrary to s 63 of the Code: count 5.

(b) On 29 November 2008 at 3 Nuytsia Way, Derby, Mr Wungundin wilfully and unlawfully damaged a house and fencing, contrary to s 444 of the Code: count 7.

(c) On 29 November 2008 at 38 Marmion Street, Derby, Mr Wungundin wilfully and unlawfully damaged a motor vehicle, contrary to s 444 of the Code: count 10.

(d) On 29 November 2008 at 14A Baobab Street, Derby, Mr Wungundin wilfully and unlawfully damaged a motor vehicle, contrary to s 444 of the Code: count 12.

(e) On 29 November 2008 at 38 Marmion Street, Derby, Mr Wungundin unlawfully assaulted Raymond George Shadforth and thereby did him bodily harm, contrary to s 317(1) of the Code: count 13.

8 The sentencing judge sentenced Mr Wungundin to 6 months' immediate imprisonment on count 5 (unlawful assembly), 18 months' immediate imprisonment on each of counts 7, 10 and 12 (wilful and unlawful damage), and 2 years' immediate imprisonment on count 13 (unlawful assault occasioning bodily harm). The sentences were ordered to be served concurrently. The total effective sentence was therefore 2 years' immediate imprisonment. A parole eligibility order was made.

9 Mr Wungundin appeals to this court against his conviction on count 5 (unlawful assembly) and against the sentencing decision generally.

The appeals by Mr Ward and Mr Wungundin are related appeals

10 The sentencing judge dealt with Mr Ward and Mr Wungundin (and the other offenders) together.

11 The appeals by Mr Ward and Mr Wungundin were also heard together by this court.

12 Section 62 of the Code defines 'unlawful assembly', 'riot' and 'riotously assembled'. Section 63 creates the offence of taking part in an unlawful assembly. Section 65 creates the more serious offence of taking part in a riot. If as a result of persons being riotously assembled any property is unlawfully destroyed or damaged, each person among those so assembled is guilty of a crime and is liable to imprisonment for 10 years: s 67(1). If the property is destroyed or damaged by fire, each person is liable to imprisonment for 14 years: s 67(2).

13 At the material time, s 62 and s 63 provided:

1. Unlawful assembly, riot, riotously assembled, meanings of

(1) When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear, on reasonable grounds, that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

(3) An assembly of 3 or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to enter the house in order to commit an indictable offence therein is not an unlawful assembly.

(4) When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.

Any person who takes part in an unlawful assembly is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

14 At the material time, s 317(1) of the Code provided, 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 or in circumstances of racial aggravation, to imprisonment for 7 years; or

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

The applicable maximum penalty in the case of Mr Wungundin was 5 years' imprisonment.

15 At the material time, s 444 of the Code provided, relevantly:

Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable -

(a) if the property is destroyed or damaged by fire, to imprisonment for 14 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 20 years; or

(b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years.

Section 444(b) applied to Mr Ward and Mr Wungundin. The applicable maximum penalty was 10 years' imprisonment.

The appeals against conviction: the ground of appeal

16 Each of Mr Ward and Mr Wungundin appeals against conviction on one (identical) ground.

17 The ground alleges that the offence created by s 63 of the Code (unlawful assembly) is a simple offence, the District Court does not have jurisdiction to deal with simple offences, and, in consequence, there has been a miscarriage of justice.

18 On 1 November 2010, Mazza J granted leave to appeal on this ground.

Appeals against conviction: the State's concession

19 At the hearing of the appeals, the State conceded that the offence created by s 63 of the Code is a simple offence and the District Court does not have jurisdiction to deal with simple offences.

20 However, counsel for the State submitted that, by s 169(2) of the CPA, the District Court's determination of the counts in the indictment that alleged a contravention of s 63 continues to have full force and effect. It was further submitted by counsel that there has been no miscarriage of justice requiring a variation of that determination pursuant to s 169(4) of the CPA.

Appeals against conviction: the contentions of Mr Ward and Mr Wungundin

21 It was contended on behalf of Mr Ward and Mr Wungundin that their convictions for contravention of s 63 of the Code were 'nullities'.

22 Their counsel submitted that there will be a miscarriage of justice where a court, without jurisdiction, enters a judgment of conviction and makes consequential orders against a person.

23 Counsel for Mr Ward and Mr Wungundin argued that s 169 of the CPA does not invest any (additional) jurisdiction in a court. Section 169 does not, so it was argued, deal with the 'very drastic situation of a nullity' (appeal ts 15).

24 According to counsel, s 169(2) does not cure what was, it was submitted, a fundamental error, namely, the absence of jurisdiction. Counsel submitted that s 169 merely makes lawful any steps taken pursuant to or in reliance on a conviction or other order made without jurisdiction until such time as the conviction or other order is set aside.

Section 169 of the CPA

25 Section 169 of the CPA provides:

(1) In this section, unless the contrary intention appears -

jurisdictional error, in relation to a charge against a person being dealt with by a court, means an error of fact or law that is material to whether the court has jurisdiction to deal with the charge.

(2) If a court that does not have jurisdiction to deal with a charge against a person determines the charge as a result of a jurisdictional error -

(a) the court's determination has full force and effect; and

(b) anything done as a result of the determination is lawful.

(3) If a court that does not have jurisdiction to deal with a charge against a person determines a charge as mentioned in subsection (2), a party to the prosecution or the Attorney General may apply to -

(a) that court; or

(b) if the determination is subject to an appeal, the court dealing with the appeal,

for an order varying or setting aside the determination.

(4) The court to which such an application is made may either -

(a) refuse the application; or

(b) vary the determination and any sentence imposed or other order made as a result of the determination; or

(c) set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person,

(5) If a court is dealing with an appeal in relation to the determination, subsection (4) is in addition to the court's powers on the appeal.

26 By s 8(1) of the District Court of Western Australia Act 1969 (WA) (the District Court Act), the District Court of Western Australia has, relevantly, the criminal jurisdiction conferred on it by that Act. Section 42(1) provides, relevantly, that the District Court has 'all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence'. By s 43(1), the District Court's criminal jurisdiction must be exercised subject to the Code and the CPA.

27 Section 5 of the Interpretation Act 1984 (WA) provides that, in the Act and every other written law, 'indictable offence' has the meaning given by s 67. By s 67, relevantly:

(1) Offences are of 2 kinds: indictable offences and simple offences.

(1a) An offence designated as a crime or as a misdemeanour is an indictable offence.

(2) An offence not otherwise designated is a simple offence.

(3) The procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004.

28 Section 63 of the Code does not designate the offence it creates (namely, taking part in an unlawful assembly) as a crime or a misdemeanour. The offence is therefore a simple offence: s 67(1a) and s 67(2) of the Interpretation Act.

29 Section 3(1) of the CPA includes the following definitions which apply in that Act, unless the contrary intention appears:

charge means a written allegation in a prosecution notice or indictment that a person has committed an offence;

...

indictable offence means a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily;

indictment means a document that contains one or more indictable charges, complies with section 85(2), and is lodged with a superior court;

...

offence means an indictable offence or a simple offence;

...

prosecution notice means a document that contains one or more charges, complies with section 23(2), and is lodged with a court of summary jurisdiction;

...

simple offence means an offence that is not an indictable offence.

30 Part 3 of the CPA comprises s 18 - s 79, and applies to and in relation to prosecutions in courts of summary jurisdiction. Section 23 is concerned with the formal requirements of prosecution notices. By s 23(1), sch 1 to the CPA has effect in relation to prosecution notices and charges in them.

31 Part 4 of the CPA comprises s 80 - s 124, and operates in respect of prosecutions for indictable offences in the Supreme Court or the District Court. Section 85 is concerned with the formal requirements and service of indictments. By s 85(1), sch 1 to the CPA has effect in relation to indictments and charges in them.

32 Clause 2(1) of sch 1 to the CPA states that a prosecution notice or indictment must not allege both an indictable offence and a simple offence.

33 The indictment dated 11 June 2010 was defective. It infringed cl 2(1) of sch 1 to the CPA in that it alleged both indictable offences and simple offences.

34 Count 1 (unlawful assembly) against Mr Ward and count 5 (unlawful assembly) against Mr Wungundin should have been the subject of charges in a prosecution notice. If that had occurred, and Mr Ward and Mr Wungundin had requested the District Court under s 32 of the Sentencing Act 1995 (WA) to deal with those charges when they were to be sentenced for the indictable offences, the sentencing judge would have had jurisdiction under s 33 of that Act, subject to the consent of the State, to deal with the charges of taking part in an unlawful assembly.

35 However, the charges were not in a prosecution notice (and therefore no such request could be made), and, in the circumstances, the allegation in the sole ground of the appeals against conviction that the District Court did not have jurisdiction to deal with the offences against s 63 of the Code has been made out.

36 I turn now to consider the proper construction and application of s 169(2) of the CPA.

37 By s 169(2), if a court that does not have jurisdiction to deal with a charge against a person 'determines' the charge as a result of a jurisdictional error (as defined in s 169(1)):

(a) the court's 'determination' has 'full force and effect'; and

(b) anything done as a result of the 'determination' is lawful.

38 The term 'determine', in the context of determining a charge, is defined in s 3(1) of the CPA to mean:

(a) to convict the accused of the charge;

(b) to acquit the accused of the charge; or

(c) to enter judgment on the charge under section 128(2) or (3).

Other parts of speech and grammatical forms of the term 'determine' have corresponding meanings in the CPA. See s 9 of the Interpretation Act.

(a) the District Court did not have jurisdiction to deal with the charges against Mr Ward and Mr Wungundin of taking part in an unlawful assembly;

(b) the sentencing judge determined those charges in that he entered judgments of conviction against Mr Ward and Mr Wungundin pursuant to s 147(1) of the CPA upon their entering pleas of guilty;

(c) the sentencing judge determined the charges as a result of a 'jurisdictional error' (as defined in s 169(1) of the CPA) in that neither the District Court Act nor any other statutory provision authorises or empowers the District Court to deal with a person who has been charged with a simple offence, except pursuant to s 32 and s 33 of the Sentencing Act, and those provisions were not engaged in the present case.

40 However, in the circumstances I have just described, s 169(2) mandates that the court's determination (that is, in the present case, the judgments of conviction entered by the sentencing judge) have 'full force and effect'.

41 The expression 'force and effect' is a doublet that has become part of the legal idiom in such phrases as in full force and effect and of no force or effect. Neither expression is a term of art. See, Garner BA, A Dictionary of Modern Legal Usage, (2nd ed, 1995) where the author notes:

Either synonym would suffice just as well as the doublet; but the emphasis gained by force and effect may justify use of the phrase, more likely in DRAFTING (contracts and statutes) than in judicial opinions (366). (original emphasis)

42 The phrase 'full force and effect', in s 169(2)(a), connotes that, notwithstanding the jurisdictional error, the court's determination of the charge is valid and effective. Section 169(2)(a) expressly and unambiguously confers validity and efficacy on the court's determination. Despite the jurisdictional error, the determination is not void or of no effect.

43 Section 169(2)(b) supplements s 169(2)(a) by mandating that anything done 'as a result of' the determination is lawful.

44 It follows, from my construction of and conclusions in relation to s 169(2), that the judgments of conviction entered against Mr Ward and Mr Wungundin on the charges of taking part in an unlawful assembly are valid and effective, and are not void or of no effect. It also follows that the trial judge's sentencing decisions in relation to those charges, being decisions made 'as a result of' entering the judgments of conviction, are lawful.

45 Accordingly, the complaint in the sole ground of the appeals against conviction about absence of jurisdiction did not, of itself, occasion a miscarriage of justice, as alleged in the ground, and the appeals against conviction should be dismissed.

46 At the hearing of the appeals, counsel for Mr Ward and Mr Wungundin made an oral application on behalf of each of them pursuant to s 169(3) of the CPA. The applications were relied on in the alternative to counsel's primary submission that the convictions are 'nullities'. Counsel for the State was not relevantly prejudiced by the late applications. The court therefore permitted the applications to be made, and it received submissions.

47 Counsel for Mr Ward and Mr Wungundin frankly acknowledged the difficulty he faced, on the facts of the present case, with the applications under s 169(3). Counsel said:

[T]he application is fundamentally an application that the conviction itself was a nullity, rather than a section [169(3)] application, because there's no particular prejudice in terms of the way in which the [appellants] were dealt with and in relation to anything that flowed from that, excepting what is complained about in the sentence appeal (appeal ts 14).

48 By s 169(3), if a court that does not have jurisdiction to deal with a charge against a person determines the charge as a result of 'jurisdictional error' (as defined in s 169(1)), a 'party' to the prosecution or the Attorney General may apply to that court or, if the determination is subject to an appeal, the court dealing with the appeal, for an order varying or setting aside the determination. The term 'party', in relation to a charge, is defined in s 3(1) of the CPA to mean the prosecutor (as defined in s 3(1)) or the accused (as defined in s 3(1)).

49 The apparent reason for the Parliament conferring standing on each of the prosecutor and the accused to make application for an order varying or setting aside the determination in question is that the term 'determine', in relation to a charge, is defined in s 3(1) to include the conviction of the accused of the charge or the acquittal of the accused of the charge. The apparent reason for the Parliament conferring standing on the Attorney General is that the public interest may require an application to be made under s 169(3), even though no application has been made or is contemplated by the prosecutor or the accused.

50 Section 169(4) confers a broad and general power on the court hearing an application under s 169(3). In particular, the court may:

(a) refuse the application; or

(b) vary the determination and any sentence imposed or other order made as a result of the determination; or

(c) set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person.

Also, the court may make any necessary consequential orders.

51 Section 169 does not expressly state the matters which the court hearing an application under s 169(3) is entitled or bound to take into account in deciding the application and the relief, if any, to be granted pursuant to it. The factors which the court is entitled or bound to consider are to be ascertained by implication from the subject matter, scope and purpose of s 169 in the context of the CPA as a whole. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).

52 The evident purpose of the Parliament, in conferring a broad and general power on the court under s 169(3), was to enable the court to achieve justice in the particular case. The achievement of justice in the particular case includes justice from the accused's perspective and justice from the prosecutor's perspective.

53 Although the court's power is broad and general, an applicant under s 169(3) must establish a proper basis for its exercise.

54 It is not possible to define or specify, with precision, the circumstances in which the achievement of justice in a particular case will require the court to vary under s 169(4)(b), or set aside under s 169(4)(c), the determination and any sentence imposed or other order made as a result of the determination. Everything depends on the facts of the particular case. An evaluative judgment is involved. The facts in question must be analysed and weighed. However, in general, a court hearing an application made under s 169(3) will be most unlikely to vary or set aside the determination, or any sentence imposed or order made as a result of the determination, unless it is persuaded that the accused or the prosecutor has suffered or will suffer material prejudice in consequence of the charge having been determined by a court that did not have jurisdiction, instead of a court that did have jurisdiction, to deal with it.

55 In my opinion, the applications by Mr Ward and Mr Wungundin under s 169(3) should be dismissed. The achievement of justice in their cases does not require that, by reason of the relevant 'jurisdictional error' (as defined in s 169(1) and as identified by me at [39] above), the judgments of convictions entered by the sentencing judge in respect of the offences of taking part in an unlawful assembly, or the sentences his Honour imposed for those offences, be varied or set aside. No miscarriage of justice has occurred. My reasons for these conclusions are as follows.

56 First, the jurisdictional error appears to have arisen as a result of an inadvertent error made within the Office of the Director of Public Prosecutions. The original indictment DER 9 of 2009 dated 8 December 2009 and a substituted indictment DER 9 of 2009 dated 31 May 2010 alleged, relevantly, that Mr Ward and Mr Wungundin had taken part in a riot causing the unlawful damage of property, contrary to s 67 of the Code. The offence created by s 67 is an indictable (and not a simple) offence. After negotiations between the Office of the Director of Public Prosecutions and the solicitors for Mr Ward and Mr Wungundin, the final form of indictment DER 9 of 2009 dated 11 June 2010 substituted the offence of taking part in an unlawful assembly, contrary to s 63 of the Code, for the offence of taking part in a riot causing the unlawful damage of property, contrary to s 67.

57 Secondly, at all material times Mr Ward and Mr Wungundin were represented by solicitors in negotiations with the Office of the Director of Public Prosecutions in relation to the counts in the original and the substituted indictments. Also, Mr Ward and Mr Wungundin were represented by counsel at the sentencing hearing before the sentencing judge.

58 Thirdly, if the point as to jurisdiction had been adverted to by the prosecutor or defence counsel before his Honour dealt with the charges of taking part in an unlawful assembly, and those charges had been made the subject of a prosecution notice instead of the indictment, it is likely, on the basis of the objective facts and circumstances of the case, that Mr Ward and Mr Wungundin would have made a request under s 32 of the Sentencing Act, and his Honour would have dealt with those charges, with the consent of the State, under s 33 of that Act.

59 Fourthly, Mr Ward and Mr Wungundin have not suffered any substantive or procedural prejudice or unfairness as a result of his Honour having imposed sentences on all of the charges against them. For example, there is no proper foundation for asserting that the sentencing outcome would have been more favourable to Mr Ward and Mr Wungundin if they had been dealt with in a court of summary jurisdiction.

60 Fifthly, the sentence imposed on each of Mr Ward and Mr Wungundin for the offence of taking part in an unlawful assembly was 6 months' immediate imprisonment. This sentence was less than the other individual sentences imposed on them. All of the sentences were ordered to be served concurrently. The total effective sentence in the case of Mr Ward was 18 months' immediate imprisonment, and the total effective in the case of Mr Wungundin was 2 years' immediate imprisonment.

The appeals against sentence: proposed grounds of appeal

61 Mr Ward's proposed grounds of appeal against sentence read:

1. The learned sentencing Judge erred in his assessment of the objective seriousness of the unlawful assembly offence and the property damage offences, namely,

(a) in finding that the applicant acted with a common purpose to fight or cause property damage when the finding was not open on the evidence,

(b) in finding that the applicant actively recruited others when the finding was not available on the evidence.

1. The learned sentencing Judge erred in failing to take into account or in failing to adequately take into account the delay between charging and sentencing.

62 Mr Wungundin's proposed grounds of appeal are identical to those of Mr Ward, except that Mr Wungundin relies on an additional ground 1(c) in relation to the offence of assault occasioning bodily harm. Ground 1(c) alleges that his Honour erred in his assessment of the objective seriousness of the assault occasioning bodily harm offence 'in finding that [Mr Wungundin] was responsible for others that shortly after attacked the victim Shadforth'.

63 Originally, Mr Ward and Mr Wungundin relied on another ground of appeal, but this other ground was abandoned by their counsel at the hearing of the appeals.

64 Each of the surviving grounds of appeal alleges an express error. No implied or inferred error is asserted.

65 I agree with Murphy JA that ground 1(a) is without merit. Subject to the observations set out below, I agree generally with his Honour's reasons.

66 A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill [1979] VicRp 33; [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ). The plea also negatives all defences. See Schugman v Menz [1970] SASR 381, 381 - 382 (Bray CJ). A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's depositions or witness statements. See Hill (312). It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence.

67 It is an element of the offence of taking part in an unlawful assembly, contrary to s 63 of the Code, that the persons have assembled with intent to carry out some common purpose. Also, it is an element of the offence that the persons assemble in such a manner, or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear, on reasonable grounds, that the persons so assembled will, relevantly, tumultuously disturb the peace or provoke other persons to do so.

68 The distinction between the offence of taking part in an unlawful assembly, contrary to s 63, and taking part in a riot causing the unlawful damage of property, contrary to s 67 of the Code, lies in the apprehension or fear of a tumultuous breach of the peace, in the case of an unlawful assembly, as distinct from an actual tumultuous breach of the peace and the actual unlawful damage of property, in the case of a riot causing the unlawful damage of property.

69 In the present case, Mr Ward and Mr Wungundin, by pleading guilty to the offence of taking part in an unlawful assembly, accepted the elements of the offence including, relevantly, that each of them assembled with intent to carry out some common purpose. After committing the offence of taking part in an unlawful assembly, each of Mr Ward and Mr Wungundin then committed three criminal damage offences and Mr Wungundin also committed the offence of unlawful assault occasioning bodily harm. The common purpose with which the Mowanjum group (including Mr Ward and Mr Wungundin) were unlawfully assembled was of significant relevance to the sentencing judge's assessment of the seriousness of that offence and the seriousness of the other offences that flowed from the initial unlawful assembly.

70 His Honour was entitled, on the material before him, to find, beyond reasonable doubt, that the common purpose of the unlawful assembly was to fight or cause property damage. I refer, in particular to the following:

(a) the two Aboriginal groups in question were engaged in a feud;

(b) earlier on the night of the offending, a fight had occurred at the Spinifex Hotel in Derby where members of one group had been injured;

(c) some members of the Mowanjum group were recruited as reinforcements;

(d) after the reinforcements were recruited, the Mowanjum group went directly to the house at 3 Nuytsia Way, Derby;

(e) numerous members of the Mowanjum group were armed with sticks and other weapons; and

(f) members of the Mowanjum group were yelling abuse and calling for people to come out and fight.

71 The sentencing judge was also entitled, on the material before him, to find, beyond reasonable doubt, that each of Mr Ward and Mr Wungundin took part in the unlawful assembly with intent to carry out the common purpose to fight or cause property damage. I refer to the evidence set out in the reasons of Murphy JA at [148] - [157] below.

72 In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Gibbs CJ (Mason J agreeing) stated several propositions in relation to the sentencing of offenders. First, it was 'fundamental and important' that 'no one should be punished for an offence of which he has not been convicted' (389). Secondly, a sentencing judge is entitled, in imposing a sentence, to consider all of the offender's conduct, including that which would aggravate the offence, but 'cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence' (389). Thirdly, 'where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty' (392). See also R v Harrison [1997] UKHL 5; (1909) 2 Cr App R 94, 95 - 96 (Channell J); Lovegrove v The Queen [1961] Tas SR 106, 107 - 108 (Burbury CJ, Crawford & Cox JJ agreeing); R v Boney [1986] 1 Qd R 190, 207 - 210 (McPherson J); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

73 In the present case, the applicable common law principle is embodied generally within the first proposition and specifically within the third proposition from the reasons of Gibbs CJ in De Simoni, which I have set out at [72] above. The applicable principle, expressed specifically in terms relevant to these appeals, is that where the State has charged an offender with, and the offender has pleaded guilty to, an offence less serious than the facts warrant, the offender cannot be sentenced on the basis of the facts that would have rendered him or her liable to be charged with, and found guilty of, the more serious offence.

74 By s 6(1) of the Sentencing Act, a sentence imposed on an offender must be commensurate with the seriousness of the offence.

75 Section 6(2) provides that the seriousness of an offence must be determined by taking into account:

(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.

76 Section 6(2) distinguishes between 'the circumstances of the commission of the offence, including the vulnerability of any victim of the offence' (s 6(2)(b)), 'any aggravating factors' (s 6(2)(c)) and 'any mitigating factors' (s 6(2)(d)). However, the distinctions between the circumstances of the commission of the offence on the one hand, and any aggravating factors or any mitigating factors on the other, are not rigid. For example, some of the circumstances of the commission of an offence may be aggravating factors.

77 By s 7 of the Sentencing Act:

(1) Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.

(2) An offence is not aggravated by the fact that -

(a) the offender pleaded not guilty to it;

(b) the offender has a criminal record; or

(c) a previous sentence has not achieved the purpose for which it was imposed.

(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

78 Section 7 contains some limited degree of statutory guidance as to the matters which may, or must, or must not, be considered to be aggravating, but in general the identification of aggravating factors is to be made in accordance with the statutory provisions creating the relevant offence and the relevant common law principles. See Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [39] (Wheeler JA).

79 Section 6(1) and s 6(2) read with s 7(1) do not evince a Parliamentary intention to abrogate, modify or exclude the common law principles enunciated by Gibbs CJ in De Simoni, which I have reproduced at [72] above.

80 In the present case, the sentencing judge did not impose sentence on Mr Ward or Mr Wungundin on the basis of facts that would have rendered him liable to be charged with, and found guilty of, the more serious offence of taking part in a riot, contrary to s 65, or of taking part in a riot causing the unlawful damage of property, contrary to s 67. I refer to the reasons advanced by Murphy JA at [162] - [163] below.

81 I agree with Murphy JA's conclusions and, generally, with his reasons in relation to ground 1(b).

82 Section 31(3) of the Criminal Appeals Act 2004 (WA) provides that unless under s 31(4) this court allows an appeal against sentence, it must dismiss the appeal. By s 31(4)(a), this court may allow the appeal if, in its opinion, a different sentence should have been imposed.

83 I am satisfied that, even if (contrary to my opinion) the sentencing judge made the error alleged in ground 1(b), when each sentence is examined from the perspective of the maximum available sentence, the standards of sentencing customarily observed with respect to the offence in question, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the relevant appellant, the sentence was just and reasonable.

84 There is no tariff for offending against s 444(b) of the Code because of the great variation in the facts and circumstances of these offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. The limits of the guidance afforded by any comparable cases are flexible. Comparable cases can provide only general guidance. It is sufficient, in the present case, to refer to Weston v The Queen [2000] WASCA 188.

85 I agree with Murphy JA's conclusions and, generally, with his reasons in relation to ground 1(c).

86 I am satisfied that, even if (contrary to my opinion) his Honour made the error alleged in ground 1(c), when the sentence imposed on Mr Wungundin is examined from the perspective of the maximum available sentence, the standards of sentencing customarily observed with respect to the offence in question, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and his personal circumstances, the sentence imposed was just and reasonable.

87 As to the range of sentences that have been imposed for offending against s 317(1)(b), see the review I carried out in The State of Western Australia v Cheeseman [2011] WASCA 15 [73] - [79]. I merely note Wheeler JA's observation in Holden v The State of Western Australia [2009] WASCA 50 that it is difficult to discern a tariff for assault occasioning bodily harm because of the great variation in circumstances in such cases [43].

88 I agree with Murphy JA that ground 2 is without merit. Subject to the observations set out below, I agree generally with his Honour's reasons.

89 An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.

90 Ground 2, as drawn, does not allege a sentencing error to the extent that it asserts an error by the sentencing judge in failing 'to adequately take into account' the delay between charging and sentencing. This is, in substance, a complaint about the weight given to a relevant sentencing

consideration. There is no reasonable basis for concluding that the weight which his Honour accorded to any delay that was not attributable to the normal operation of the criminal justice system, amounted to a failure to exercise the sentencing discretion.

91 I would dismiss the appeals against conviction, the applications under s 169(3) of the CPA and the applications for leave to appeal against sentence.

92 In this matter there are four appeals. Two appeals are by Mr Ward (CACR 109 and 180 of 2010) and two are by Mr Wungundin (CACR 110 and 181 of 2010). The appeals cover in essence the same subject matter and most of the issues raised are common to both appeals. They relate to the conviction and sentencing of Mr Ward and Mr Wungundin by Murray J on 22 June 2010.

93 The events which led to the convictions and sentencing of Mr Ward and Mr Wungundin occurred in the early hours of the morning on 29 November 2008, in Derby. In relation to the events of that night, each of Mr Ward and Mr Wungundin was charged with, and pleaded guilty to, one count of unlawful assembly under s 63 of the Criminal Code (WA) and three counts of criminal damage under s 444 of the Criminal Code. Each was sentenced to 6 months' imprisonment for the unlawful assembly count. They were sentenced to 18 months' imprisonment for each of the criminal damage charges. In addition, Mr Wungundin was charged with, and pleaded guilty to, assault occasioning bodily harm, under s 317(1) of the Criminal Code, for which he received a sentence of 2 years' imprisonment.

94 The sentences were ordered to be served concurrently, and there was an order for eligibility for parole.

95 Each appellant appeals against conviction of unlawful assembly (but not the other counts) and each appellant appeals against sentence on substantially the same grounds. The appeals against sentence depend upon, first, the grant of leave to appeal. Prior to the hearing, the appellants had already obtained leave to appeal against their convictions of unlawful assembly.

96 For the reasons given below, I would dismiss the appeals against conviction and refuse leave in respect of the appeals against sentencing.

97 It is convenient to note, at the outset, the nature of the offence of unlawful assembly and, in light of some of the submissions in the appeal, to compare it with the offence of riot.

98 Unlawful assembly, defined by s 62(1) of the Criminal Code occurs, relevantly, where three or more persons, with intent to carry out a common purpose, assemble, or being assembled conduct themselves, in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds, that those assembled will tumultuously disturb the peace. The common purpose of the original assembly need not be unlawful: s 62(2). By s 63, a person taking part in an unlawful assembly is guilty of an offence and liable to 12 months' imprisonment or a fine of $12,000.

99 By s 62(4), a riot occurs where the unlawful assembly begins to act in a tumultuous manner so as to disturb the peace. The essential ingredient of a riot is that an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace. This requires proof of tumultuous behaviour amounting to use of force, or acts of violence: Boxer v The Queen (1995) 14 WAR 505, 514. See also Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, 210.

100 By s 65, a person taking part in a riot is guilty of a crime and liable to imprisonment for 5 years. Section 65 also provides for a summary conviction penalty. By s 67(1), if property is damaged or destroyed as a result of persons being riotously assembled, each person amongst the assembled group is guilty of a crime and liable to imprisonment for 10 years.

The appeals against the conviction of unlawful assembly

101 Each of Mr Ward and Mr Wungundin allege that the District Court did not have jurisdiction to deal with the offence of unlawful assembly under s 63 of the Criminal Code and, as a consequence, there has been a miscarriage of justice.

102 It is alleged that an offence under s 63 of the Criminal Code is not designated as a crime or misdemeanour, and that it is accordingly a

'simple offence' and is not an 'indictable offence': s 67(2) Interpretation Act 1984 (WA).

103 Section 8(1) of the District Court of Western Australia Act 1969 (WA) provides that the District Court has the 'criminal jurisdiction conferred on it by this Act'. By s 42(1) of that Act, the District Court has (save for indictable offences where the maximum term for imprisonment is life) 'all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence'. There is no express provision conferring jurisdiction in respect of simple offences.

104 The appellants refer to the decision of this court in Bounds v The Queen [2005] WASCA 1 where this court held, in effect, that on the basis of the legislation there considered (and neither party suggests that there are material differences here), the District Court had no jurisdiction to try a simple offence and that to the extent that the indictment included a simple offence (count 2 in that case) the indictment was invalid. On the appeal to the High Court in relation to other matters, in Bounds v The Queen [2006] HCA 39; (2006) 228 ALR 190, the majority observed [7] and [10]:

The Court of Criminal Appeal (Murray, Steytler and McKechnie JJ) held that the conviction on count 2 should be quashed. The members of the Court expressed this conclusion in different ways. Murray J held that 'as a matter of law this offence [count 2] was not triable on indictment and the conviction of it by the verdict of the jury was not open'. Steytler J held that 'the indictment was a nullity, insofar as count 2 is concerned, and that the District Court did not have the necessary jurisdiction to embark upon a trial of that count, regardless of the appellant's failure to take the point prior to entering his plea of not guilty'. McKechnie J concluded that the Supreme Court and District Court 'have exclusive jurisdiction over indictable offences [and] Courts of Petty Session have exclusive jurisdiction over summary offences except where, in limited circumstances, a statute expressly extends the jurisdiction of superior courts to summary offences'. McKechnie J held that there was no express extension of jurisdiction engaged in this matter.

...

The respondent in this Court did not contend that the Court of Criminal Appeal erred in quashing the conviction on count 2. There was, therefore, no examination of the difficult questions presented by that court's conclusion that the indictment should be treated as, in part, a 'nullity', despite the provision then found in s 590 of the Criminal Code (WA) that '[e]very objection to an indictment for any defect apparent on its face must be taken by motion to quash the indictment before the jury is sworn, and not afterwards' (emphasis added) and the availability of a plea that the court has no jurisdiction to try the accused for the offence. In that regard, there seems little reason to think that the criticisms made in the context of administrative law of the difficulties associated with terms like 'void', 'voidable' and 'nullity' are of any less force in the present context. Neither party making any submission to the contrary, however, the present appeal must be determined on the basis that the Court of Criminal Appeal's decision to quash the conviction on count 2 is not in issue. (footnotes omitted)

105 The respondent has accepted, in this appeal, that the District Court lacked jurisdiction to deal with the unlawful assembly count. The respondent nevertheless relies on s 169 of the Criminal Procedure Act 2004 (WA) which is within Part 5 of that Act, headed 'Provisions applicable to any prosecution'. Section 169 provides that:

(1) In this section, unless the contrary intention appears -

jurisdictional error, in relation to a charge against a person being dealt with by a court, means an error of fact or law that is material to whether the court has jurisdiction to deal with the charge.

(2) If a court that does not have jurisdiction to deal with a charge against a person determines the charge as a result of a jurisdictional error -

(a) the court's determination has full force and effect; and

(b) anything done as a result of the determination is lawful.

(3) If a court that does not have jurisdiction to deal with a charge against a person determines a charge as mentioned in subsection (2), a party to the prosecution or the Attorney General may apply to -

(a) that court; or

(b) if the determination is subject to an appeal, the court dealing with the appeal,

for an order varying or setting aside the determination.

(4) The court to which such an application is made may either -

(a) refuse the application; or

(b) vary the determination and any sentence imposed or other order made as a result of the determination; or

(c) set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person,

106 The appellants contend that s 169 has no application in the present circumstances on the basis that the conviction for unlawful assembly is, by virtue of the District Court's absence of jurisdiction, inherently a nullity under the general law. The appellants contend that as there has been no amplification of the District Court's jurisdiction to hear summary offences, the general law position that the conviction is a nullity remains unaffected by s 169.

107 It is said by the appellants that as s 169 does not alter the common law position, its intended purpose is to immunise from invalidity any steps taken consequential to, or in reliance on, a void conviction. The examples given by the appellants included the practical steps which may be taken following a conviction such as taking the prisoner into custody and the consequential acts done by various government departments on the strength of the prisoner having been denied his or her liberty.

108 Whilst the appellants' primary position is that s 169 has no application, their alternative position, first articulated at the hearing of the appeals, is that the court should treat the appeals as applications under s 169(3) on the basis that there has been 'a miscarriage of justice' for the purposes of s 169(4) 'because the court had no jurisdiction to deal with the matter' (appeal, ts 13).

Disposition of the appeals against conviction of unlawful assembly

109 I am unable to accept the appellants' submission as to the meaning of s 169. Whether or not 'nullity' is the appropriate terminology to apply to the effect, under the general law, of the convictions in the District Court having been made in the absence of jurisdiction (cf the majority's observations in Bounds v The Queen [10] referred to earlier and the present s 126(1)(a) and s 178(2) of the Criminal Procedure Act), s 169(2)(a) has expressly provided that the determination 'has full force and effect'. Moreover the determination has full force and effect until set aside or varied: s 169(4). There is no scope, in my view, on the clear language of s 169, for the court to treat the convictions of unlawful assembly as being inherently void or a nullity. The purpose ascribed to the provision by the appellants (referred to in [107] above) is given express effect by s 169(2)(b). There is no warrant for ignoring the ordinary meaning of the subclause which precedes it. I would add that the respondent referred to certain extrinsic materials (the explanatory memorandum and the 'consideration in detail' part of the parliamentary debates recorded in Hansard) which were said to support what I have found to be the plain meaning of s 169. In my view, the proper construction of s 169 is sufficiently plain without recourse to such materials. However, I would accept the respondent's submissions that those materials confirm the construction which I have favoured: s 19(1)(a) Interpretation Act.

110 It is then necessary to consider the appellants' alternative claim, being their application under s 169(3).

111 There was no real debate between the parties in this appeal as to the nature and scope of the discretion to be exercised under s 169(4). This was, perhaps, due to the lateness of the appellants' disclosure of their intention to rely on s 169(3) and (4). The respondent referred to a decision of Simmonds J in Staveley v Rowe [2010] WASC 35, in relation to an earlier and somewhat narrower form of s 169, where his Honour, in the absence of any guiding authority, considered that the issue was whether or not there was a particular reason to consider there might have been a 'substantial miscarriage of justice' [41]. The latter phrase is, of course, an echo of the language of the 'proviso' in s 30(4) of the Criminal Appeals Act.

112 The absence of debate makes these appeals inappropriate vehicles to explore fully and conclusively the nature and scope of the discretion conferred by s 169(4). Nevertheless, the following preliminary observations may be made.

113 First, s 169(4) does not itself specify the factors to be taken into account. In this regard, the court's discretion is confined only by the subject-matter, scope and purpose of the legislation and the requirement that it be exercised judicially, and consistently with the judicial process: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [53], [108] - [111].

114 Secondly, it is to be noted that by s 169(3), an application may be made not only by the particular parties to the prosecution, namely, the State and the accused, but also by the Attorney-General, which also tends to suggest that the discretion in s 169(4) is broad in scope.

115 Thirdly, s 169(4) does not refer to 'substantial miscarriage of justice'. Whilst a 'substantial miscarriage of justice' in the sense used in the proviso will likely form a basis upon which the discretion in s 169(4) may be exercised, there would seem to me to be no warrant in the text to import the language of the proviso and to treat it as providing a 'single universally applicable criterion' in the exercise of power under s 169(4): cf Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45].

116 Fourthly, ss 169(3) and (4) evidently operate on the basis that something more is required to enliven the power under s 169(4) than the mere consequence that the general law would or may have regarded the determination in question as a nullity.

117 These considerations suggest, in my view, that the discretion is a broad one, to be exercised to serve the interests of justice. In other words, it appears to me that, in substance, the object of s 169(3) & (4) is to enable the court to set aside or vary a determination made as a result of jurisdictional error if, and to the extent that, it appears to the court that it is in the interests of justice to do so. For this purpose, the applicant must point to some matter beyond the mere fact that a jurisdictional error was made and that under the general law the determination could or would be regarded as a nullity in consequence of the jurisdictional error.

118 In this case, the appellants point to nothing beyond the mere fact that a jurisdictional error was made. The appellants do not contend, for example, that they were deprived of any procedural advantages, or were subject to any procedural disadvantages, by the wrongful exercise of jurisdiction. Nor is it contended, for example, that they pleaded guilty on the basis that the offences of unlawful assembly would be dealt with by the Magistrates Court, rather than the District Court. Accordingly, in my view, there are no grounds for setting aside the convictions of unlawful assembly under s 169(4).

119 For these reasons, I would dismiss ground 1 of the appeal and the appellants' applications under s 169(3).

121 Indictment DER 9 of 2009, filed 11 June 2010, dealt with five accused, namely Mr Ward, Mr Wungundin and three others. In relation to Mr Ward he was charged, on count 1, with taking part in an unlawful assembly on 29 November 2008. By count 6 he was charged with wilfully and unlawfully damaging a house and fencing at 3 Nuytsia Way Derby. By count 8 he was charged with wilfully and unlawfully damaging a motor vehicle at 38 Marmion Street Derby. By count 11 he was charged with wilfully and unlawfully damaging a motor vehicle at 14A Baobab Street Derby. By the same indictment Mr Wungundin, by count 5, was charged with unlawful assembly on 29 November 2008. He was also charged, by count 7, with wilfully and unlawfully damaging a house and fencing at 3 Nuytsia Way Derby and, by count 10, he was charged with wilfully and unlawfully damaging a motor vehicle at 38 Marmion Street Derby. By count 12 he was charged with wilfully and unlawfully damaging a motor vehicle at 14A Baobab Street Derby and by count 13 he was charged with unlawfully assaulting Mr Shadforth at 38 Marmion Street Derby. Both Mr Ward and Mr Wungundin pleaded guilty to the charges on the indictment.

122 I have outlined the offence of unlawful assembly towards the start of these reasons. Section 444(1) of the Criminal Code provided, relevantly:

(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable -

(a) if the property is destroyed or damaged by fire, to life imprisonment; or

(b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years.

(1) 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 or in circumstances of racial aggravation, to imprisonment for 7 years; or

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

124 At the sentencing on 22 June 2010 (when two others on the indictment also pleaded guilty) the prosecutor tendered the 'prosecution brief' and video records of interview that were said to be incorporated into the statement of material facts. The material facts outlined by the prosecutor at the sentencing hearing before Murray J were as follows.

125 On Friday, 28 November 2008, 'feuding' 'erupted' between two Aboriginal groups in Derby. One group was from the Mowanjum community, and the other was from an area known as One Arm Point. There had been feuding between these two communities in various forms since 31 October 2008. At approximately midnight on Saturday, 29 November 2008, the two groups had been drinking at the Spinifex Hotel in Derby and fighting broke out in vacant land adjacent to the hotel. Following the fight, (unspecified) members of the Mowanjum community group recruited reinforcements from their community to attend various addresses in Derby in order to seek retribution for the earlier fighting. As a result, approximately 20 people from the Mowanjum community were gathered, including, relevantly, Mr Ward and Mr Wungundin. This group then went to certain residential addresses in Derby.

126 At approximately 2.00 am on 29 November 2008, Mr Ward and Mr Wungundin attended at 3 Nuytsia Way Derby, with the intention of fighting the occupants of that home. They, and numerous others, went to the front of the residence and called out to the occupants to come out and fight. The occupants secured themselves inside the residence. Mr Ward, Mr Wungundin and numerous others entered onto the grounds of the residence. Some of the group were armed with sticks and bars. Mr Ward and Mr Wungundin and others moved around the outside of the residence, using sticks, iron bars and rocks to cause damage to parts of the residence. The plate glass sliding door was smashed and there was damage to the security screening covering three windows, the front door of the residence and approximately 10 metres of Colorbond fencing. The total damage was estimated at $3,000. Mr Ward and Mr Wungundin and the others remained at the residence, attempting to have the occupants come out to fight, until police attended the scene when the group dispersed.

127 Mr Ward, Mr Wungundin and approximately 20 others then travelled to 38 Marmion Street Derby, with the intention of fighting the home occupants at that residence. The offenders had gathered sticks, metal bars and other weapons. They entered the grounds, calling out to the home occupants to come out and fight the 'marauding' group. Several home occupants gathered in an attempt to protect their home, resulting in several fights breaking out between the two groups. Numerous injuries were received on both sides and one of the members of the Mowanjum group was stabbed in the side of the chest. He left the residence and sought medical attention for his injury. The remaining offenders damaged two vehicles parked in the rear yard of the house, smashing the windscreens, as well as the side windows and tail-lights of the cars. Mr Ward and Mr Wungundin both took part in damaging property at this location.

128 A Mr Shadforth then approached a member of the group and attempted to reason with him to prevent further incidents occurring. Mr Wungundin went up to Mr Shadforth and struck him on the head with a wooden stick, knocking him to the ground. As Mr Shadforth lay on the ground, he was further assaulted by Mr Wungundin and three others. The group kicked, punched and struck Mr Shadforth with a stick to the head and body. The attack stopped for several seconds, which enabled Mr Shadforth to get to his feet and run to the rear of the premises, climb over a back fence and escape. He was later taken to Derby Hospital, where he received sutures to a cut on the back of his head. He also suffered grazing to his knees, bruising around his left eye, a cut to his left eyebrow and cheek, swelling over and a fracture to the right clavicle and a fracture to his right shoulder. Those injuries caused Mr Shadforth pain and discomfort.

129 Mr Ward, Mr Wungundin and approximately 20 others then moved on to Baobab Street, Derby. They had sticks, metal poles and other weapons. They intended to assault the occupants of the house at 14A Baobab Street. Mr Ward, Mr Wungundin and the others entered into the grounds, calling for the occupants of the house to come out and fight. The offenders entered the rear yard of the residence where they caused damage to a motor vehicle parked there, by smashing the rear window, two side windows and a tail-light. The value of the damage was $1,183. They also caused damage to the residence at 14A Baobab Street by pushing several airconditioners down from their mountings. The offenders left the residence when they realised that none of the occupants were present.

Submissions on behalf of Mr Ward and Mr Wungundin

130 The prosecutor's statement of material facts was not disputed or clarified by counsel for Mr Ward and Mr Wungundin, save, relevantly, to the extent and in the manner discussed below.

131 In his submissions to Murray J on sentencing, counsel for Mr Ward and Mr Wungundin referred to the following additional matters. He said that the incident at the Spinifex Hotel had involved an unlawful assault on two male members of the Mowanjum community by a Mr Gavin Menmuir. The two members of the Mowanjum community required immediate hospitalisation, and were in hospital for a number of days. It was said that this was the genesis of the 'flair up' that escalated into the commission of the offences in question. Mr Wungundin and Mr Ward, who were at the Spinifex Hotel at the time of the assaults, went with the two injured men to the hospital.

132 Counsel for Mr Ward and Mr Wungundin (Mr Brunello) also said (ts 75 - 76):

BRUNELLO, MR: I would ask though that your Honour accept that the state, by accepting pleas of guilty ... to unlawful assembly, has conceded at the times that any of them were responsible for acts that would have constituted a breach of the peace, they were acting individually as opposed to acting as part of a group with a unified common purpose.

MURRAY J: The assembly was at the point, I suppose, where they all got together and took off on a search for those members of the other group that they could locate.

BRUNELLO, MR: Yes.

MURRAY J: So it was that process which made the assembly unlawful because of its capacity to cause an apprehension of a breach of the peace.

BRUNELLO, MR: That's so, and that's accepted by virtue of their pleas.

MURRAY J: Yes, I understand.

BRUNELLO, MR: The state has put in the facts that the common purpose shared amongst the assembly was to fight the members of the other community they felt were responsible for the harmful acts upon their companions. The individual acts to which Wungundin and Ward have pleaded guilty, though - that's the criminal damages and, in the case of Wungundin, the assault bodily harm which would have constituted a breach of the peace - they were acting individually, in my submission, by virtue of the fact that they're not now charged with riot.

MURRAY J: Yes, but in a sense it's odd, isn't it? As I understand it, the offences of unlawful damage, damage to property offences, carry maximum penalties of 10 years' imprisonment.

BRUNELLO, MR: They do.

MURRAY J: So they're very serious offences.

BRUNELLO, MR: They are.

MURRAY J: And I would have thought so far as Mr Wungundin is concerned, the assault occasioning bodily harm is probably more serious from a penalty point of view than the property damage offences. Is that a sensible approach to it? That's an offence against the person.

BRUNELLO, MR: I wanted to address your Honour on the circumstances that immediately surrounded the commission of the assault by Wungundin but I accept the general proposition that both the criminal damages and the assault are serious offences.

133 In relation to Mr Ward, his counsel submitted in effect (ts 82 - 83) that whilst Mr Ward had admitted liability for criminal damage, his admission was by virtue of him having been an accessory in relation to damage at 3 Nuytsia Way and at 14A Baobab Street, rather than by virtue of him directly damaging property at those addresses. He admitted that he had directly smashed the windscreen of a vehicle at 38 Marmion Street. The following exchange then occurred with the learned judge (ts 83):

MURRAY J: I think I ought make clear that when I read Mr Ward's transcript of the interview it seemed to me that although there was confused statements and little direct evidence of what part precisely he paid [sic played] in the events, apart from the fact that he had no part to play in relation to any attack on any persons, and of course I'm only dealing with Shadforth as a victim of one such attack, he was, I was about to say, an enthusiastic participant, and I think that's probably a fair observation in relation to what went on at the three addresses they visited.

BRUNELLO, MR: Yes.

MURRAY J: I don't think there's any dodging that, Mr Brunello.

BRUNELLO, MR: I'm not seeking to, your Honour. He accepts liability for the criminal damage offences but it was just in terms of his exact role, and maybe it's of little distinction for sentencing purposes.

MURRAY J: I have to say to you I think that's the view that's properly to be taken.

BRUNELLO, MR: Yes.

MURRAY J: I can't, I think, in relation to Ward say, 'Well, you were a peripheral person who provided some aid or encouragement but didn't actually in any central way participate in the criminal damage processes.' I think I should take a different view about that, and of course the impact in relation to sentence is obvious.

BRUNELLO, MR: Yes. I don't cavil with that, your Honour. I suppose I was just making the point that he did say he didn't actually do the act.

The state certainly says that Mr Ward and Mr Wungundin were amongst the group of primary or principal offenders that evening and perhaps [the other accuseds'] involvement was to a lesser degree. However, that, as the state says, can be reflected in the length of the term and whether or not any terms are suspended.

135 When the judge asked counsel for Mr Ward and Mr Wungundin if there was anything arising out of the prosecutor's submissions, counsel did not contend to the contrary.

136 In relation to the assault by Mr Wungundin, counsel for Mr Wungundin submitted (ts 86) that 'it was a single strike to the head with a stick and he didn't persist thereafter'. The following exchange then occurred with the judge (ts 86 - 87):

MURRAY J: I think, Mr Brunello, ... I remain of the view that I ought to approach this as being what was effectively an attack on Shadforth by a number of people. It was actually initiated by Wungundin and whether he directly struck blows thereafter when he was to the ground or not remains undecided but whatever he was doing after the man hit the ground until they desisted and the man was able to get up and run off, he didn't withdraw from the process of the attack which was being jointly inflicted by others, and so his liability and his responsibility, his culpability, come to be measured by a person who initiated the attack and then in some undetermined way participated in this until it ended, but he didn't withdraw from it and move away at any stage.

BRUNELLO, MR: I don't seek to dispute that characterisation of the facts.

137 Counsel for Mr Ward and Mr Wungundin also made submissions in relation to delay, to which I refer in more detail later in these reasons.

138 In CACR 110 of 2010 Mr Wungundin seeks leave to appeal, and to appeal if leave is granted, on the following bases:

(1) The learned sentencing Judge erred in his assessment of the objective seriousness of the unlawful assembly offence, the property damage offences and the assault occasion bodily harm offence, namely,

(a) in finding that the applicant acted with a common purpose to fight or cause property damage when the finding was not open on the evidence,

(b) in finding that the applicant actively recruited others when the finding was not available on the evidence,

(c) in finding that the applicant was responsible for others that shortly after attacked Mr Shadforth,

...

(2) The learned sentencing Judge erred in failing to take into account or in failing to adequately take into account the delay between charging and sentencing.

139 In CACR 109 of 2010, Mr Ward's application for leave to appeal is in the same terms, save that he omits ground 1(c) (which is concerned only with Mr Wungundin's sentencing with respect to his assault conviction), and he omits, in the prefatory words to ground 1, the reference to 'the assault occasion bodily harm offence'.

140 Each of the appellant's grounds of appeal had originally contained a ground that the judge had also erred in his assessment of the seriousness of the offences in that he approached 'the sentencing process as if the applicant had committed a more serious offence, namely the offence of riot against s 65 of the Criminal Code (WA)'. That ground was abandoned prior to the hearing of the appeal.

141 The general principles applicable to an appeal against sentence are well established, and were recently outlined in Wilson v The State of Western Australia [2010] WASCA 82 [2]:

The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

142 Section 6(1) and s 6(2) of the Sentencing Act 1995 (WA) provide:

Principles of sentencing

(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2) The seriousness of an offence must be determined by taking into account -

(a) the statutory penalty for the offence; and

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

(c) any aggravating factors; and

(d) any mitigating factors.

143 In relation to implied or inferred error, to determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type, and the personal circumstances of the appellant: Chan v The Queen (1989) 38 A Crim R 337, 342; Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [39].

144 The appellants contend that the judge erred in finding that each of the appellants acted with a common purpose to fight or cause property damage, when the finding was not open on the evidence, and that his Honour thereby erred in his assessment of the seriousness of the offences.

145 In support of this ground, the appellants refer to the following passages in the sentencing remarks (ts 99, 105):

The seriousness of the offences that were committed is properly evaluated by doing what the prosecutor said, by looking at the circumstances surrounding those offences and looking at the circumstances in which they were committed and it is right that I should not forget that you were part of a group of people and played a more or less significant role in a process by which this group of people, some of whom were armed, rampaged around the town visiting, firstly, Nuytsia Way, secondly, Marmion Street and then [Baobab] and looking for people who were involved on the other side in places where you might expect to find them, in places - significantly, the homes of those people, and in our community every person has the right to be at peace and quiet in their own home.

Nobody should be subjected to a process by which not only is the home invaded, is the property invaded but damage is done to their property in doing so, and I have to say that the individual acts of unlawful damage, you should understand, don't matter all that much. If there was a group of people of whom you were members who inflict a considerable amount of damage, then all those who are in the group who see what's going on and continue to participate, even in a minor way, are, in the eyes of our law, responsible for what everybody does and you can't back off and say, 'I only did a little bit. Others did more' and expect to get lenient treatment on that ground.

...

You [Mr Ward] have before the court not only count 1, the unlawful assembly charge and the conviction for that, but counts 6, 8 and 11, unlawful damage charges on 3 Nuytsia Way, 38 Marmion Street and 14A [Baobab] Street. The seriousness of those unlawful damage cases, which is something for which you are responsible, although you may not have by any means done all of it yourself, cannot be overlooked.

146 Although it is apparent that the judge did not make a finding in express terms as alleged in ground 1a, I accept that, on a proper construction of the judge's sentencing remarks, his Honour found, in effect, that Mr Ward and Mr Wungundin were part of a group of people that had embarked from the hospital and went to the three residences with the common purpose of seeking out certain persons from the One Arm Point community, in order to fight them or to damage their property, and that each acted with that purpose when committing the offences to which they pleaded guilty. It is in that sense that I would understand that the judge made a finding, in broad terms, to the effect alleged in ground 1a.

147 In my view, ground 1a lacks merit. It has not been established that the judge's finding that the appellants acted with a common purpose to fight or cause property damage, in the sense I have described, was not open on the evidence as alleged.

148 In the case of Mr Ward, in his record of interview he said, in effect, that he told others of the earlier events at the Spinifex Hotel, and was part of the group which then set off from the hospital that night. He also, in effect, admitted that he went to Nuytsia Way to fight with the occupants. In his record of interview he said (14 - 15):

1. So we take them two, three boys to the hospital.
2. Yeah.
3. Yeah, and take them to the hospital, drop them off there and they just - we told Scott and them other boys, that other cop - that other two cops, the seen us - they seen that bloke (indistinct) my cousin (indistinct)
4. All right.
5. They didn't do nothin'.
6. Okay.
7. So everybody was in the hospital there, they was at the hospital - - -
8. Yeah.
9. - - - checkin' with the boys all right.
10. Yeah.
11. And so they're all right, they just had a lot of cuts around their face.
12. Yeah.
13. From there they go look around for them same boys that (indistinct) my nephew.

1. So I jump on the toilet [sic Toyota] and then bang, we go.
2. Okay. Well, where did you go?
3. We went to Nuytsia Way.

1. Yeah. And you took him up to hospital?
2. Took him up to the hospital. ...

1. Everything was right there, they got stitched up (indistinct) - - -
2. Yeah.
3. - - - in the face. And then from there we just - when they came up just seen everybody (indistinct) ready with a Toyota, couple of Toyotas.
4. Everyone was waiting with a couple of Toyotas?
5. Yeah (indistinct)
6. Who was that?
7. I can't remember (indistinct) we just all jump on (indistinct)

1. How many cars?
2. (indistinct) had three I think.

1. Okay, all right. So the three cars were there?
2. (indistinct) three cars. That's all I know that - -
3. Yeah. And so what did you do? Which car did you get into?
4. I jump on the Toyota.
5. On the Toyota. Which one?
6. The Troopy.

1. Okay. And you said you went to (indistinct) Street, was it?
2. ... We went to Nuytsia Way.

1. Yeah. And why were you going to this house with Little Ivan?
2. Well, they saying, 'go over there to do (indistinct)' or like fight with them.
3. Have a fight with them?
4. Yeah.

1. So we went there.
2. Yeah. And what happened?
3. We were singing out there and - - -
4. Singing - what were you singing out?
5. (indistinct) 'come out (indistinct)

1. Yeah. And what else were you saying?
2. Throwing, throwing all the things up there.
3. What did you do, tell me what you did.
4. Like we - I just like (indistinct) just getting on a bins and - - -
5. Yeah.
6. - - - putting 'em in the road (indistinct) makin' a mess there.
7. You were making a mess, throwing the bins around?
8. Yeah.

1. ... What about the cyclone screens, you know the security screens on the front of the house?

1. I dunno whether them other boys did do that.
2. Yeah. What happened?
3. They were shaking it up.

1. Did they - - -
2. With a stick.
3. Yeah. Did they wreck them?
4. Wrecked all the, yeah.
5. Yeah. And the windows, what happened to the windows?
6. (indistinct) was hittin' and all that.
7. Yeah. What did you do to the windows?
8. Well, I (indistinct) I was just throwing a bin around.
9. You were throwing a bin around?
10. Yeah.

1. Did anything else happen to the - to the house?
2. Might have - another nephew had hit the lights.
3. Hit the lights?
4. Like (indistinct) lights.

1. They smashed the lights or - - -
2. They smashed (indistinct) stick.
3. With a long stick, did they?
4. Yeah.

1. Long time, short time?
2. Short time, yeah. Just like just go there and just do all that, and bang, jump on Toyota and (indistinct)
3. Yeah. Did anyone come out at Nuytsia?
4. No, no one - no one (indistinct) the house like - - -
5. No one at the house. So it just got wrecked a bit, did it?
6. Yeah, wrecked a bit.
7. Yeah, okay. And where did - what happened from there?
8. From there - from there we walked back - - -
9. Yeah.
10. - - - we walked back to the Toyota and jump on ...

152 He said that he and others then went to Marmion Street to look for 'Gavin' (Mr Gavin Menmuir - a member of the One Arm Point community involved in the altercation at the Spinifex Hotel). He said (42 - 43):

1. Or whose house were you going to?
2. They say that's Gavin house, hey.

1. Okay. And why were you going to Gavin's house?
2. Because the boys (indistinct)
3. Yeah.
4. He bumped (indistinct) the other two boys.

1. Yeah. So what were you going to do at Gavin's house, or with Gavin?
2. I dunno, the boys said they (indistinct) smash (indistinct) smash him.
3. (indistinct) smash him?
4. Smash (indistinct)

153 Mr Ward also said that he hit a male in the jaw who he believed to have been with 'Gavin' at the earlier altercation. He said (46):

1. All right. Well - so after you punched this guy and he's fallen down, yeah, did he - what happened to him?
2. He'd get up again and this other couple of boys (indistinct) get into him and then from there they just drop him on the ground.
3. Yeah. And what did they do to him?
4. They boot him and everything.
5. Yeah. Whereabouts?
6. Jaw (indistinct) body.
7. Around the head and body, was it?
8. Yeah.
9. Okay. So what did you do to him?
10. I just walked back to the Toyota.
11. So you just punched him twice?
12. Yeah, and then walked back to the Toyota.

154 Mr Ward also referred to smashing the windscreen of a car at Marmion Street (46 - 49):

1. Yeah. Well, what about to the - the damage to the cars that you say?
2. The other car, yeah, we just like smashed it (indistinct)
3. Yeah. What did you do to the other car?
4. I hit it with a stick.
5. You hit it with a stick. And what happened when you hit it with a stick?
6. It just bust the glass and then (indistinct)
7. Yeah. Which - which bit of glass?
8. Glass on one Toyota, something like that, when Toyota was in the back.

1. Yeah. And why did you go around the back for?
2. Well, they was going to fight the boys (indistinct) looking for Gavin.
3. They were looking for Gavin, all right. And what did you have when you walked around the back?
4. I - I just had a stick.
5. A stick?
6. Yeah.
7. Yeah. And you smashed the window on the Toyota?
8. That Toyota did (indistinct) my nephew.

1. Okay. Okay. So how many boys at the house in Marmion Street?
2. It was either 10 or 11 boys there.

1. Okay. And you all travelled there in the three cars?
2. Yeah.
3. Okay. And then what happened after that?
4. We took off.
5. Yeah. Where to?
6. We went to Preston house.

156 In relation to the events at Baobab Street, he said (54 - 57):

1. Did you go there?
2. Yeah, we went there again.
3. Yeah. Well, what - tell me what happened there.
4. Well, I just walked out (indistinct) the boys (indistinct) lookin' around for them.

1. ... And what happened when you got to the house?
2. When we get to the house? Well, my cousin smashing on the - hitting the doors.
3. On the house or - - -
4. In the house, yeah.

1. Okay. And so hit the doors. What else happened there?
2. A couple of other boys hit the windows with a stick.

1. Yeah. And you said you went into the back yard.
2. Yeah, we went in the back yard, look around there but no one was there in the back yard.
3. Yeah. And what happened in the back yard?

1. Ford (indistinct) it looked like.
2. Yeah. And what happened to that?
3. They - they smashed that I think.

1. What did you do to the car?
2. I did nothin' (indistinct)

1. You're just in the back there with the boys?
2. Yeah, I was in the back there and the boys (indistinct)
3. What were you - what did you have when you were in the back there?

1. Did the other boys have anything when they were at the house?
2. Yeah, they were havin' a couple of weapons there.
3. Yeah. What sort of weapons?
4. Sticks.
5. Yeah.
6. Long irons.
7. Long irons.
8. Yeah.
9. Yeah.
10. Some shovels.
11. Yeah.

157 In the case of Mr Wungundin, in his record of interview he made the following admissions. He was at the Spinifex Hotel when the earlier incident occurred. He then went to the hospital with some of his injured family members. Whilst at the hospital, there was 'anger' amongst the group and the 'whole lot of us' were talking about how they were 'going to go and get this mob and do the same what they done so' which was to 'flog them'. A group of between 20 and 30 men piled into three cars. The group later had sticks and weapons. They headed over to the house in Nuytsia Way to 'get them'. The group got out of the cars and went in the front and back of the yard and the side of the yard and called out for 'Ivan' to come out and fight them before they 'trashed the house' throwing rocks and bars at the house. Mr Wungundin threw a 'bit of bar' and 'bricks' at the house. He and others also had 'big, long sticks'. He said that he 'wanted to get all of them locals' who had hurt his brother and that 'if I did they would have ... been in the hospital'. He was 'over there to hurt people'. He then went with the group in 'convoy' to Marmion Street with the aim of giving Gavin Menmuir 'a hiding', but Mr Menmuir was not there. He said 'We went there to go and attack Gavin and that'. The group 'trashed' the cars. Mr Wungundin joined in the hitting of the cars with sticks. He also gave Mr Shadforth a 'hiding'. He 'whipped him straight over the head with a stick' which he had taken there with him. Mr Shadforth fell to the ground and 'the other boys gave him a hiding'. Mr Wungundin also went to Baobab Street with the others and smashed the back windscreen of the car by throwing a rock straight through it. He also 'pushed a couple of air conditioners back inside the house'.

158 It seems to me that with respect to each appellant, his admissions in his record of interview provided a proper evidentiary basis for the finding challenged by ground 1a.

159 The appellants nevertheless contend that the finding was not open having regard to the submissions at sentencing made by counsel for Mr Ward and Mr Wungundin, in the exchange with the judge referred to in [132] above. In that exchange, counsel appears to have submitted, in effect, that by virtue of having accepted the pleas of guilty of unlawful assembly, the State had conceded that each of Mr Ward and Mr Wungundin had not acted with a common purpose to fight or cause property damage when committing the other offences.

160 It is trite to say that a plea of guilty is entered to the charge, and not to the evidence tendered in support of the charge. It is for the sentencing judge to make his or her finding of fact in relation to that evidence once it has been tendered: Altham v The Queen (1992) 62 A Crim R 126, 127. See also s 129(5) Criminal Procedure Act and s 15 Sentencing Act. The question of what, in fact, was the common purpose in the unlawful assembly offence was a question for the judge to determine, in accordance with the criminal standard, on the evidence. The nature of the common purpose was clearly relevant in considering the seriousness of the unlawful assembly offence. Moreover, and relevantly for the purposes of the appellant's argument, the question of whether each of the appellants also acted with that purpose when committing the additional crimes of property damage and (in the case of Mr Wungundin) assault, to which they had pleaded guilty, was similarly a question for his Honour. In so far as his Honour found that the appellants acted with that common purpose when committing the offences concerning property damage and assault, his Honour was required to have regard to that matter as part of the 'circumstances of the commission of the offence': s 6(2)(b) Sentencing Act. As I have said, the finding of the judge was properly open.

161 I should note, on this point, that although in written submissions the appellants appeared to contend that the judge had failed to consider each offence separately, contrary to the principles in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45], the appellants' counsel expressly disavowed any such criticism at the hearing of the appeal.

162 Finally, also for completeness, I should note that in relation to this ground, some of the appellant's arguments might be construed as contending that the judge approached the sentencing process as if the applicants had committed the more serious and uncharged offence of riot under s 65 of the Criminal Code. It is a fundamental principle that no one should be punished for an offence of which he or she has not been convicted: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 279; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26].

163 If and to the extent that a submission of that kind was intended to be made, it should be rejected for two reasons. First, the applicants had originally expressly included a ground to that effect which they subsequently withdrew prior to the hearing of the appeal: see [140] above. Secondly, and in any event, the principle does not deny, and indeed accepts, that a sentencing judge is bound to take into account all the circumstances relevant to the commission of the offence providing he or she does not, in a case where there are circumstances of aggravation which might have led to a more serious count or to a separate count, sentence on the basis of an offence for which the accused has not been charged: Hladin [26]. In making the finding as to the nature of the common purpose his Honour was not in substance sentencing for the offence of riot, but rather considering all the circumstances in which the offences charged and admitted to, were committed.

164 Accordingly, the error of fact alleged by ground 1a has not been established.

165 It is submitted on behalf of each of the appellants that the judge erroneously found that each had 'actively recruited others'. The appellants say the finding was made when his Honour said (ts 99):

From the very start then, you all got together one way or another and recruited further assistance from Mowanjum ...

166 The appellants contend that the finding was erroneous because there was no evidence that each of Mr Ward and Mr Wungundin had actively recruited others on the night of the offences.

167 In relation to this ground, the appellants refer to the prosecutor's submissions (ts 71) that:

Following the fight, members of the group from the Mowanjum community recruited reinforcements from their community to attend various addresses in Derby in order to seek retribution for the earlier fighting. As a result approximately 20 people from Mowanjum community were gathered, including the offenders ... Ward and Wungundin. This group then went to several addresses in Derby.

168 The appellants also refer to the prosecutor's submissions in the following exchange with the judge (ts 91 - 92):

MURRAY J: It is clear, isn't it, that some people were with the two injured people - two injured people it was wasn't it - - -

KEANE, MS: Yes, sir.

MURRAY J: - - - to Derby Hospital and it was while they were there that this four or five cars turned up with other people from Mowanjum and the group became complete, if you like? Is that right?

KEANE, MS: I may need to check the transcripts again, your Honour, but my understanding was that indeed the people who also went to the hospital actually then went out to the community and they were part of the group that then sought to, in effect, recruit reinforcements.

MURRAY J: Recruited others then.

KEANE, MS: Yes. So the unlawful assembly charge relates to that ongoing movement of this group from gathering reinforcements in Mowanjum community, returning into Derby town and travelling to these various addresses. So the unlawful assembly charge needs to be considered in that context ...

169 I would note here that in this exchange, the judge's opening comments reflected accurately the position with respect to Mr Ward and Mr Wungundin as disclosed in their records of interview. The prosecutor's statement was wrong in so far as it was intended to suggest that the records of interview disclosed that the appellants had left the hospital and went out to the community gathering others.

170 In this appeal, the respondent contends that his Honour's reference to recruitment was, in effect, a general introductory comment made in the context of sentencing all of the accused on that day, and that there was no specific finding that each of the individual appellants was personally involved in active recruitment. The respondent points to the sentencing remarks where his Honour makes specific reference to Mr Ward and Mr Wungundin, but makes no mention of recruitment.

171 I accept the substance of the respondent's submissions.

172 It is to be recalled that his Honour's remarks were ex tempore and not necessarily expressed with the precision which might be expected from formal written reasons. The short passage referred to by the appellants (in [165] above) is expressed with considerable generality and no positive acts of recruitment are identified. Reading the sentencing remarks as a whole, I am not persuaded that his Honour, in referring to recruitment at the outset of the sentencing remarks, when dealing with a number of accused, was intending to make specific findings that Mr Ward and Mr Wungundin had actively recruited others in the sense of going out to the community and gathering others. As the respondent submits, no reference is made to recruitment in his Honour's remarks directed specifically to Mr Ward and Mr Wungundin.

173 Moreover, it is apparent from their respective records of interview that each of Mr Ward and Mr Wungundin discussed with the other members of the Mowanjum community who subsequently attended the hospital, the events which had transpired earlier in the evening at the Spinifex Hotel and communicated a sense of serious grievance as to what had occurred. To that extent, each may be said to have contributed to the decision by others in the group to redress the grievance by seeking out members of the One Arm Point community for the purpose of fighting them or causing damage to their property. In that sense, Mr Ward and Mr Wungundin may be said to have been involved in the recruitment of others and, reading the sentencing remarks as a whole, I am not persuaded that that is not the sense in which his Honour intended to address the matter.

174 In any event, there is no challenge to his Honour's findings of fact to the effect that each of Mr Ward and Mr Wungundin was a central participant in the activities which occurred on the night in question. Even if, contrary to the view reached above, his Honour erroneously made a specific finding that Mr Ward and Mr Wungundin had been involved in some more broader active recruitment, on the undisturbed finding that each played a central role in the criminal activities of that evening, and bearing in mind the significance to be attached to general deterrence, I am not satisfied that a different sentence should have been imposed at the original hearing.

175 By ground 1c, Mr Wungundin contends that the judge erred in his assessment of the objective seriousness of the offences in so far as he found that Mr Wungundin 'was responsible for others that shortly after attacked the victim Shadforth'.

176 In support of this ground the appellants refer to the submissions by counsel for Mr Wungundin at the sentencing to the effect that Mr Wungundin had not struck Mr Shadforth other than by knocking him to the ground with a stick (referred to in [136] above). They also refer to the exchange with the judge referred to in [136] above.

177 In relation to this ground, it is clear that Mr Wungundin made no admission to the effect that he struck the victim of his assault after the victim had fallen to the ground. Nor did the judge make such a finding. Rather, his Honour, in my view, was in a summary way describing the overall effect of the 'circumstances of the commission of the offence' and the 'vulnerability' of the victim (s 6(2) Sentencing Act). Mr Wungundin struck his victim to the ground with a stick in circumstances where he was in the company of others whom he knew wished to exact some form of revenge on those whom they believed to have been involved in the altercation at the Spinifex Hotel earlier that night. The victim was outnumbered. By striking the victim to the ground with a stick, Mr Wungundin left the victim exposed and vulnerable to the predations of the others around him. Having felled the victim, it may be inferred that Mr Wungundin's continued presence, standing there whilst others attacked the victim as he lay on the ground, provided a source of encouragement in the attack which ensued. These were all matters which were properly taken into account as part of the circumstances of the commission of the offence of Mr Wungundin's assault on the victim.

178 Even if the judge did make an error as alleged, having regard to the matters to which I have referred in the preceding paragraph, I am not satisfied that a different sentence ought to have been imposed.

179 Accordingly, in my view, ground 1c has no merit.

180 Ground 2 is concerned with delay. The appellants refer to the history of the charges.

181 The appellants contend that there was a delay of 1 year and 7 months between their arrest and charge on 9 December 2008 and their sentencing on 22 June 2010.

182 The history of the offences, charges and convictions may be summarised as follows. The offences occurred on 29 November 2008. On 1 December 2008, Mr Ward was arrested. He participated in a video record of interview and was charged with one count of trespass and one count of criminal damage. On 3 December 2008 Mr Ward first appeared in court. On 9 December 2008 Mr Wungundin was arrested and charged with riot, assault occasioning bodily harm, and three counts of rioters causing damage. On 12 December 2008, Mr Wungundin first appeared in the Derby Magistrates Court. On 17 December 2008, there was a further court appearance by Mr Ward. At this time, new charges were instituted against Mr Ward, comprising one count of taking part in a riot and three counts of rioters causing damage. The earlier charges against him were discontinued. In late January or early February 2009, submissions on behalf of Mr Ward, Mr Wungundin and others were put to the Broome police prosecution in terms that each would plead guilty to unlawful assembly if the riot offences were discontinued and would plead guilty to the other individual acts that had been admitted to in their respective records of interview. Those submissions were rejected and the police indicated that they intended to persist with the riot and rioters causing damage charges.

183 On 15 July 2009, Mr Ward was committed for trial. On 27 August 2009, the first District Court status conference in Mr Ward's matter took place. The matter was adjourned. On 13 November 2009, further submissions were put, this time to the office of the Director of Public Prosecutions, on behalf of Mr Ward. Again, the submission was put that he would plead guilty to one count of unlawful assembly and three counts of criminal damage. No submission at that stage was made on behalf of Mr Wungundin, as he was away from Derby and apparently uncontactable. The submission put to the DPP on behalf of Mr Ward was evidently not accepted.

184 On 8 December 2009, indictment number DER 9 of 2009 was filed in relation to Mr Ward and three others (not including Mr Wungundin). The indictment related to charges of taking part in a riot and rioters causing damage. On 9 December 2009, there was a further District Court status conference where the matter was listed for a five-day trial in the Derby District Court, commencing 21 June 2010. In the meantime, on 9 April 2010 Mr Wungundin was committed for trial to the District Court at Derby to appear on 19 May 2010. On 31 May 2010 a new indictment DER 9 of 2009 was filed.

185 On 2 June 2010, there were further negotiations between solicitors for Mr Ward and Mr Wungundin and the DPP. These resulted in the withdrawal of the charges of taking part in a riot and rioters causing damage, and the institution of a fresh indictment in terms of the one to which Mr Ward and Mr Wungundin pleaded guilty. The amended indictment was filed on 11 June 2010. On 21 June 2010, an amended statement of material facts was served by the DPP. On 22 June 2010, the matters came before Murray J. Mr Ward and Mr Wungundin pleaded guilty to the amended indictments and Murray J imposed the sentences referred to earlier.

186 At sentencing, counsel for Mr Ward and Mr Wungundin referred to the history of the charges and the amendments to the indictments, to the resolution of the dispute between the two communities through the intervention of elders, and to the fact that the appellants had complied with directives to ensure that there was no repetition of the conduct that had occurred on the night of 29 November 2008. The following exchange then occurred with the judge (ts 79):

MURRAY J: It's an interesting proposition. I think I can certainly have regard to the fact that they agreed not to participate in the commission of any further offences of this kind directed against the property of others associated with, if I can call it, the One Arm Point group or the person of those people. It's hardly mitigation in relation to the offences that were committed, is it, to say, 'Shortly after my client came to his senses and decided that he wouldn't continue to offend in that way again'?

BRUNELLO, MR: Your Honour, perhaps it's more directed to the fact that the court is sentencing these three for events that occurred one and a half years ago.

MURRAY J: Absolutely.

BRUNELLO, MR: And in the meantime there's been no repetition of conduct.

MURRAY J: Yes, I understand that.

BRUNELLO, MR: That's really the extent that [I] seek that submission to reach.

187 In this appeal, it is alleged that his Honour erred in the following passage of his sentencing remarks (ts 98):

So let me start with some general observations about these events on 29 November 2008. I think it's an unfortunate thing that it has taken so long for the case to get to this stage of finally being dealt with. It's the sort of case which, ideally, should be dealt with much more expeditiously, very much more quickly, but the fact that that time has passed means very little in terms of what I should do in relation to sentence.

The appellants' arguments in support of ground 2

188 The appellants refer to the decision of this court in Scook v The Queen where Buss JA said [58] - [64]:

First, delay is not, of itself, a mitigating factor.

Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:

(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or

(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

189 The appellants also refer to the observations of Street CJ in R v Todd (1982) 2 NSWLR 517, 519 - 520, referred to with approval by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 65 - 66. In R v Todd (519 - 520) Street CJ said:

[W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

190 It is said on behalf of Mr Ward that he did not delay the prompt disposition of the proceedings, that he admitted his involvement to the police at a very early stage and that he pleaded guilty at a time when the indictment contained the 'appropriate combination of charges'. It is said that in the meantime he has used the time effectively to advance his prospects of rehabilitation, that he was relatively youthful at the time of the offences (21 years), and that his prior convictions consisted mainly of traffic offences which were (as his Honour found) of no great significance for present purposes. It is also said that his Honour accepted that Mr Ward would lose employment that he had obtained during the delay in finalising the proceedings and that he appeared to accept that he had been part of a process of mediation conducted by elders of the community. It is said that these factors, combined with the 'significant delay' between charging and sentencing were matters to be taken into account, and that his Honour erred when he said that the delay should 'mean little' in imposing a sentence on Mr Ward.

191 Similar submissions were made on behalf of Mr Wungundin, who, at the time of the offences, was employed as an Aboriginal ranger with the Kimberly Land Council and who continued in that employment following the commission of the offences.

193 I have outlined the history of the charges earlier. In my view the delay of 19 months between charging and sentencing was not particularly unusual in a case involving multiple accused. The appropriate venue for the disposition of the matters was Derby and there is generally a lesser availability of District Court sittings in regional areas. There was no material delay between the offences and the appellants being interviewed and charged.

194 Further, his Honour did not say that the delay which had occurred should be accorded no weight, but that it should, in effect, be accorded 'little' weight. In contrast, his Honour evidently accorded significant weight to the factor of general deterrence. No error has been shown in his Honour's assessment that 'little' weight should be attached to the delay.

195 It should also be noted, for completeness, that the judge took into account in mitigation (ts 100, 105-107):

• the appellants' co-operation with the process of the criminal justice system in making admissions to police during their video records of interview which provided evidence which enabled charges to be laid;
• that the appellants made early pleas of guilty which were, in substance, unaffected by the subsequent amendments to the indictment;
• that the appellants' pleas of guilty were reflective of their acceptance of responsibility for their offending conduct.

197 I would dismiss the appeals in each case against conviction and dismiss the applications for leave to appeal against sentencing.