Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeals against sentence - Appellants convicted after trial of two counts of unlawfully doing grievous bodily harm - Manifest excess - Totality principle - One transaction rule - Leave to appeal refused

Bruno v The State of Western Australia [2005] WASCA 149

Clements v The State of Western Australia [2006] WASCA 69

Djiagween v The State of Western Australia [2012] WASCA 141

Ellis v The State of Western Australia [2013] WASCA 220

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

Hayes v The Queen [2003] WASCA 230

Hobby v The State of Western Australia [2011] WASCA 197

Holden v The State of Western Australia [2011] WASCA 238

Hunter-Aragu v The State of Western Australia [2015] WASCA 80

Hussaini v The State of Western Australia [2009] WASCA 207

Mercanti v The State of Western Australia [2009] WASCA 109

Peake v The State of Western Australia [2015] WASCA 239

R v Hodges [1999] WASCA 278

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

Steel v The State of Western Australia [2010] WASCA 118

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

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

The State of Western Australia v Ghilardi [2015] WASCA 61

The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308

Trompler v The State of Western Australia [2008] WASCA 265

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 BUSS JA: Each of the appellants has applied for an extension of time to appeal against sentence and, if an extension is granted, leave to appeal.

2 Each of the appellants was convicted, after a trial in the District Court before Derrick DCJ and a jury, of three counts in an indictment.

3 Count 1 alleged that, on 14 January 2014, at Cooloongup, Allan Paul Robert Winmar (the appellant in CACR 199 of 2015) and Thomas James Lawrence (the appellant in CACR 200 of 2015) wilfully and unlawfully damaged a silver Commodore utility, contrary to s 444(1)(b) of the Criminal Code (WA) (the Code).

4 Count 2 alleged that, on the same date and at the same place as in count 1, Mr Winmar and Mr Lawrence unlawfully did grievous bodily harm to Rhys Dale Taggart Corbett, contrary to s 297(1) of the Code.

5 Count 3 alleged that, on the same date and at the same place as in count 1, Mr Winmar and Mr Lawrence unlawfully did grievous bodily harm to Mr Corbett, contrary to s 297(1) of the Code.

6 The trial judge sentenced Mr Winmar to a $1,000 fine on count 1, 1 year 3 months' immediate imprisonment on count 2 and 3 years 3 months' immediate imprisonment on count 3. His Honour, in the application of the totality principle, reduced the sentence he would otherwise have imposed on count 2 from 2 years 6 months' immediate imprisonment to 1 year 3 months' immediate imprisonment. The sentences for counts 2 and 3 were ordered to be served cumulatively. The total effective sentence was therefore 4 years 6 months' immediate imprisonment. His Honour made a parole eligibility order. The total effective sentence was backdated to 30 June 2015, to take into account time Mr Winmar had spent in custody in relation to the offences in question.

7 The trial judge sentenced Mr Lawrence to a $1,000 fine on count 1, 9 months' immediate imprisonment on count 2 and 3 years 3 months' immediate imprisonment on count 3. His Honour, in the application of the totality principle, reduced the sentence he would otherwise have imposed on count 2 from 2 years 2 months' immediate imprisonment to 9 months' immediate imprisonment. The sentences for counts 2 and 3 were ordered to be served cumulatively. The total effective sentence was therefore 4 years' immediate imprisonment. His Honour made a parole eligibility order. The total effective sentence was backdated to 31 July 2015, to take into account time Mr Lawrence had spent in custody in relation to the offences in question.

8 The delay by Mr Winmar and Mr Lawrence in filing their appeal notices was moderate and has been adequately explained. I would grant each of them an extension of time. However, for the reasons that follow, I would refuse each of them leave to appeal. The appeals must be dismissed.

The facts and circumstances of the offending

9 The facts and circumstances of the offending, as recounted by the trial judge in his sentencing remarks, were as follows.

10 On the evening of 14 January 2014, Mr Winmar and Mr Lawrence were together at home. They lived in Cooloongup with Barry Lawrence senior, who is Mr Lawrence's father and Mr Winmar's stepfather, and their mother.

11 On the same evening, the complainant, Mr Corbett, was with his cousin, Brandon Michael.

12 Mr Winmar and Mr Lawrence knew, but were not friends with, Mr Corbett and Mr Michael. To the contrary, there was a degree of animosity between them.

13 This long-standing animosity intensified shortly before the night of the offending. Mr Michael had made unsympathetic comments on Facebook about the theft of a motor vehicle belonging to Mr Winmar's and Mr Lawrence's mother. Mr Barry Lawrence senior had confronted Mr Michael about those comments and told him that he was going to arrange for Mr Winmar to 'sort [him] out' (ts 499).

14 By about 11.00 pm on the night in question, Mr Corbett and Mr Michael were significantly under the influence of alcohol. At that time they travelled in a motor vehicle along the street where Mr Winmar and Mr Lawrence lived. Mr Corbett was the driver. He did a 'long skid or burnout' on the road in front of Mr Winmar's and Mr Lawrence's home (ts 499).

15 Mr Corbett continued to drive recklessly until he collided with a kerb and damaged a rear tyre on his vehicle. Eventually, he stopped on the verge, a short distance from the place where Mr Michael lived. His intention was to attempt to change the damaged tyre.

16 Mr Corbett's aim in doing a long skid or burnout on the road in front of Mr Winmar's and Mr Lawrence's home was to further antagonise their family. He succeeded in this aim. Mr Winmar and Mr Lawrence and one other or possibly two other males decided to find and confront Mr Corbett and Mr Michael. They armed themselves with baseball bats or similar implements and at least one iron bar before getting into a motor vehicle and beginning to search for Mr Corbett and Mr Michael.

17 Soon after they commenced the search, Mr Winmar and Mr Lawrence, and the other male or males with them, saw Mr Corbett and Mr Michael with Mr Corbett's vehicle parked on the verge. Mr Winmar and Mr Lawrence stopped their vehicle and alighted with their companion or companions. They ran towards Mr Corbett and Mr Michael.

18 Mr Winmar was armed with an iron bar and Mr Lawrence with a baseball bat. Mr Corbett and Mr Michael fled. As they were fleeing, Mr Lawrence smashed the front windscreen of Mr Corbett's vehicle with the baseball bat. Mr Winmar and Mr Lawrence, and the other male or males with them, got into their vehicle and pursued Mr Corbett and Mr Michael. Mr Michael escaped but Mr Corbett was less fortunate.

19 Mr Winmar and Mr Lawrence, and the other male or males with them, caught up with Mr Corbett. Mr Winmar alighted from the vehicle and threw an iron bar at Mr Corbett. The trial judge was satisfied beyond reasonable doubt that the distance between Mr Winmar and Mr Corbett when Mr Winmar threw the iron bar 'was not great', '[n]othing more than a few metres' (ts 501). The iron bar struck Mr Corbett on the lower part of the outside of his left leg. The blow caused a significant open wound and a comminuted fracture of the lower left fibula (just above the ankle joint). Mr Winmar's conduct in throwing the iron bar and causing the injury to Mr Corbett's fibula constituted the offence of unlawfully doing grievous bodily harm as alleged in count 2.

20 Mr Lawrence was an active participant in aggressively chasing Mr Corbett when Mr Winmar alighted from the vehicle and threw the iron bar. Mr Lawrence's intention, held in common with Mr Winmar, was that Mr Corbett should be caught and physical harm should be inflicted on him. By his conduct, Mr Lawrence intended to encourage Mr Winmar to use the iron bar to injure Mr Corbett once Mr Corbett had been detained. Further, by his conduct, Mr Lawrence did in fact encourage Mr Winmar to use the iron bar to injure Mr Corbett.

21 The trial judge found that, either before Mr Winmar and Mr Lawrence commenced chasing Mr Corbett or after the commission of the offence the subject of count 2, Mr Winmar and Mr Lawrence, together with the other male or males with them, struck Mr Corbett's vehicle with baseball bats or similar implements on a number of occasions. They caused extensive damage to a number of the exterior panels of the vehicle, as well as to the vehicle's lights and windscreen. Mr Winmar's and Mr Lawrence's conduct in damaging the vehicle in this manner constituted the offence of wilful and unlawful damage as alleged in count 1.

22 Despite having received the fractured left fibula, Mr Corbett was able to run, although in a restricted fashion, into a nearby road and, ultimately, into a car park. Medical evidence at the trial was to the effect that it would have been possible for Mr Corbett to continue to run and/or hobble with his fractured left fibula, although with significant pain and difficulty.

23 When he arrived at the car park, Mr Corbett stopped and made an emergency 000 telephone call. This call occurred at 11.23 pm and lasted about six minutes. The call was recorded. The trial judge found that it was 'clear from listening to the call that Mr Corbett was genuinely terrified' (ts 503).

24 Mr Winmar and Mr Lawrence, and the other male or males with them, either saw or encountered Mr Corbett while he was in the car park making the telephone call. Mr Corbett ran away. Mr Winmar and Mr Lawrence, and their companion or companions, chased him again in their vehicle. His Honour described what occurred next:

[Mr Corbett] first made his way from the IGA car park across Ennis Avenue to the south side of the intersection between Ennis Avenue and Elanora Drive. However, he came up against a high fence which ran along the railway line and which he could not get over.

He then ran back across the intersection to the northern side of the intersection between Ennis Avenue and Grange Drive. He then ran for a short distance in a northerly direction along a pathway of sorts which ran parallel to the northbound lane of Ennis Avenue.

He next ran back across Ennis Avenue so that he ended up near or against a concrete barrier which ran along the southbound left turning lane of Ennis Avenue, that is, the turning lane that led from Ennis Avenue into Elanora Drive.

As I have already said, throughout this time your group gave chase in your car. On an occasion or occasions whoever was driving the car drove the car directly at Mr Corbett. Indeed, when you caught up to Mr Corbett by the concrete barrier your car actually clipped Mr Corbett as he was attempting to jump or pull himself over the concrete barrier. This caused him to fall back onto the roadway (ts 503).

25 When Mr Winmar and Mr Lawrence caught up with Mr Corbett he was lying on the road near the concrete barrier and was in a defenceless position. Mr Winmar and Mr Lawrence, and the other male or males with them, alighted from their vehicle and struck Mr Corbett a number of times with baseball bats or similar implements. A blow inflicted by Mr Lawrence struck Mr Corbett on the head and caused a laceration to his scalp. The assault rendered Mr Corbett unconscious, but only for a relatively short period of time.

26 The trial judge was satisfied beyond reasonable doubt that each of Mr Winmar and Mr Lawrence, in striking Mr Corbett, intended to cause him significant physical harm. During the combined assault with baseball bats or similar implements Mr Corbett suffered an injury, including a laceration, to the extensor tendon of his left middle finger. It was not possible to decide, on the evidence given at the trial, which of the blow or blows struck by the assailants actually caused the injury to the finger. All that could be said, consistently with the jury's verdict, was that one or more of the blows inflicted on Mr Corbett during the combined assault on him was the substantial, if not the sole, cause of this injury. The injury to Mr Corbett's finger, during the combined assault on him, constituted the offence of unlawfully doing grievous bodily harm as alleged in count 3.

27 It was not possible for the trial judge to make a finding as to precisely the number of times each of Mr Winmar and Mr Lawrence struck Mr Corbett. Nevertheless, he was satisfied beyond reasonable doubt, on the evidence given at the trial, that each of them struck him no less than two or three times.

28 Ultimately, Mr Winmar and Mr Lawrence, and the other male or males with them, stopped striking Mr Corbett and departed.

29 Mr Corbett was taken by ambulance to Fremantle Hospital. On examination at the hospital he was found to be suffering from the following injuries, in addition to the injuries I have described to his left leg and his finger.

30 First, a small stab wound to the left lateral posterior upper back near his armpit. Secondly, a small scalp laceration to the anterior scalp of about 2 cm in length. Thirdly, a small laceration to his right forearm. Fourthly, a small laceration to his left upper back near the shoulder. Fifthly, a superficial abrasion to the left forearm.

31 The laceration to Mr Corbett's left leg, which was adjacent to the comminuted fracture, was about 3 cm in length.

32 The trial judge noted that the evidence at the trial did not reveal that Mr Corbett was suffering from any bruising or generalised tenderness upon his arrival at the hospital. However, as his Honour noted, that was not surprising, given the relatively short period of time which had elapsed between the assault by the assailants and the examination at the hospital. There would have been little time for bruises to have developed.

33 The trial judge was satisfied beyond reasonable doubt that Mr Lawrence caused the scalp laceration and that the other injuries, apart from the stab wound, were caused by the combined assault which the assailants inflicted on Mr Corbett. His Honour was unable to make a finding as to how the stab wound was caused.

34 On 15 January 2014, Mr Corbett underwent orthopaedic surgery. The surgeon repaired the open comminuted fracture and the finger injury. The surgeon stressed the ankle joint to ensure that, despite the various fracture lines in the fibula, it would not become unstable. The open wound was debrided, washed out and closed. If the open fracture had not been operated upon and treated it is probable that Mr Corbett's leg would have become infected. If the infection had become established, it may have been necessary to amputate the leg. The surgery on Mr Corbett's finger involved repairing the tendon with sutures. If the finger injury had not been repaired, the likely outcome would have been a high rate of infection and flexion deformity.

35 A victim impact statement was not provided to the sentencing judge. However, his Honour noted that the State's assertions in its written submissions, about the impact of the offending on Mr Corbett, had not been contradicted by defence counsel for Mr Winmar or defence counsel for Mr Lawrence. As a result of his injuries, Mr Corbett was unable to work for a number of weeks. Consequently, he lost his employment and was unable to meet repayments to the financier of his motor vehicle. The financier repossessed the vehicle.

The culpability of Mr Winmar and Mr Lawrence

36 The trial judge accepted that Mr Corbett had behaved poorly on the night in question. His conduct prior to the commission of the offences was, no doubt, irritating and, perhaps, even offensive to Mr Winmar and Mr Lawrence and their family. However, Mr Corbett's poor behaviour was brief and he had driven away from Mr Winmar's and Mr Lawrence's home.

37 In the circumstances, his Honour rejected the proposition that Mr Corbett's conduct provided any reasonable or justifiable explanation for Mr Winmar and Mr Lawrence responding by pursuing Mr Corbett and inflicting violence on him with the vigour and in the manner they did.

38 Nothing in the background or circumstances leading up to the offending reduced Mr Winmar's or Mr Lawrence's culpability or moral blameworthiness. Each of the counts in the indictment was serious.

39 The trial judge assessed Mr Winmar's offending, the subject of count 2, 'as falling somewhere between the lower and the middle of the range of seriousness of offences of its type' (ts 511). His Honour assessed Mr Winmar's offending, the subject of count 3, 'as falling towards the middle of the range of seriousness of offences of its type' (ts 511).

40 His Honour made the same assessment with respect to the seriousness of the offences, the subject of counts 2 and 3, committed by Mr Lawrence, but, in relation to count 2, Mr Lawrence was 'marginally less culpable' than Mr Winmar (ts 511).

The personal circumstances of Mr Winmar and Mr Lawrence

41 Mr Winmar was born on 28 February 1982. He was aged 31 at the time of the offending and 33 when sentenced.

42 Mr Winmar was born in a Western Australian country town and raised by his mother and stepfather. As a teenager he witnessed domestic violence and alcohol abuse within his extended family. He has a close relationship with all members of his immediate family and provides assistance to his mother and stepfather who suffer from medical conditions. He is not currently in a relationship but he has a 2-year-old daughter from a previous short-term relationship.

43 Mr Winmar left school during year 10. Since then he has been regularly occupied either in additional studies or in training and employment. He is a talented footballer.

44 Mr Winmar commenced drinking alcohol as a 17-year-old. He drank heavily and misused alcohol over the ensuing years. However, he told the author of a pre-sentence report dated 2 September 2015 that he had 'hardly consumed any alcohol' during the preceding 12 months.

45 Mr Winmar has a prior criminal record. His previous offences include convictions for behaving in a violent manner on a railway; gaining a benefit by fraud; possessing stolen or unlawfully obtained property; disorderly behaviour in public; carrying an article with intent to injure or disable; assaulting a public officer; aggravated burglary; breach of an intensive supervision order; carrying an article with intent to cause fear that someone will be injured or disabled; robbery; threats to injure; possessing a weapon with intent to cause fear; resisting arrest; and numerous traffic offences. He has been subject to 13 previous terms of community supervision. He completed eight of them.

46 Mr Lawrence was born on 2 July 1990. He was aged 23 at the time of the offending and 25 when sentenced.

47 Mr Lawrence was born in a Western Australian country town. He is one of seven siblings. He had a positive upbringing without any abuse.

48 When he was sentenced Mr Lawrence was in a de facto relationship with a woman. The relationship commenced in about September 2012. They have a child who was aged about 3 years when Mr Lawrence was sentenced.

49 Mr Lawrence was employed as a factory hand for about seven months prior to his being remanded in custody in connection with the offences in question. His longest period of previous employment was two years in the limestone industry. He spoke positively to the author of a pre-sentence report dated 24 August 2015 about his work.

50 Mr Lawrence has a history of alcohol, cannabis, methylamphetamine, heroin and ecstasy use. However, he ceased using all illicit substances when his child was born.

51 Mr Lawrence has a prior criminal record. His previous offences include convictions for robbery; stealing; breach of a conditional suspended imprisonment order; and traffic offences.

52 The trial judge recounted, in his sentencing remarks, the facts and circumstances of the offending. His Honour also referred to Mr Corbett's injuries, the culpability of Mr Winmar and Mr Lawrence and the personal circumstances of the appellants.

53 His Honour was satisfied, on the basis of the facts and circumstances of the offending, Mr Winmar's failure to accept responsibility for the offending and his prior criminal record, that Mr Winmar was at 'some risk' of reoffending (ts 514). His Honour made a similar finding in relation to Mr Lawrence (ts 519).

54 The trial judge was of the view that personal deterrence, general deterrence and the protection of the public were sentencing factors of importance (ts 519).

55 His Honour imposed on Mr Lawrence a more lenient sentence for count 2, and a more lenient total effective sentence, than the sentences imposed on Mr Winmar to reflect 'my view as to [Mr Lawrence's] culpability, compared to that of Mr Winmar, for committing the offence the subject of count 2, [Mr Lawrence's] age and also [his] less extensive prior criminal record than that of Mr Winmar' (ts 523).

56 Each of Mr Winmar and Mr Lawrence relies on two proposed grounds of appeal.

57 Ground 1 of each appeal is identical. It alleges that the trial judge erred in law in that the sentence of 3 years 3 months' immediate imprisonment on count 3 was manifestly excessive.

58 The particulars of ground 1 of Mr Winmar's appeal allege that his Honour did not give 'any sufficient or any apparent reduction in the sentence imposed' for count 3, by reference to:

(b) the background to and circumstances of the offence;

(c) the fact that Mr Corbett suffered no permanent injury to health from the injury to his finger; and

59 The particulars of Mr Lawrence's ground 1 are identical to those of Mr Winmar's ground 1, with the exception that Mr Lawrence relies on the additional particular of his 'relative youth'.

60 Ground 2 of each appeal is also identical. It alleges, in substance, that the trial judge erred in law in that the total effective sentence infringed the first limb of the totality principle and the 'one transaction rule'.

61 The particulars of ground 2 of Mr Winmar's appeal allege that:

(a) his Honour ought to have made the sentences for counts 2 and 3 concurrent; and

(b) his Honour did not give 'any sufficient or any apparent reduction in the total [effective] sentence imposed' by reference to the sentences imposed in similar cases; the background to and circumstances of the offences; the fact that Mr Corbett suffered no permanent injury to health arising from the injury to his leg and his finger; and the overall circumstances of the appellant.

62 The particulars of Mr Lawrence's ground 2 are identical to those of Mr Winmar's ground 2, with the exception that Mr Lawrence relies on the additional particular that his Honour did not give 'any sufficient or any apparent reduction in the total [effective] sentence imposed' by reference to his 'relative youth'.

63 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, 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 offender.

64 Section 297(1) of the Code provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years. This offence is to be compared to and contrasted with the offence created by s 294 of the Code. By s 294(1), relevantly, any person who, with intent to do some grievous bodily harm to any person, unlawfully does any grievous bodily harm to any person by any means whatever, is guilty of a crime, and is liable to imprisonment for 20 years. As I have mentioned, each of the appellants was charged with and convicted of the offence contrary to s 297(1).

65 In Trompler v The State of Western Australia [2008] WASCA 265, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] - [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).

66 McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:

The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].

67 In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.

I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].

69 In Mercanti v The State of Western Australia [2009] WASCA 109, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36].

70 However, the guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

71 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

72 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

73 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

74 I have considered numerous prior cases of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, including Peake v The State of Western Australia [2015] WASCA 239; Hunter-Aragu v The State of Western Australia [2015] WASCA 80; The State of Western Australia v Ghilardi [2015] WASCA 61; Ellis v The State of Western Australia [2013] WASCA 220; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Ward v The State of Western Australia [No 2] [2010] WASCA 208; Steel v The State of Western Australia [2010] WASCA 118. It is unnecessary to recount the facts of or the sentencing outcomes in the prior cases. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

75 In the present case, the offending of each of the appellants in relation to count 3 was, no doubt, serious. The appellants were in company with each other and with one or two other male companions. They continued to pursue Mr Corbett after he had been struck with the iron bar (count 2). The fear engendered by the appellants was sufficiently powerful to cause Mr Corbett to flee despite the injury to his leg. The trial judge found that when Mr Corbett made the emergency 000 telephone call he was genuinely terrified. When the vehicle containing the appellants caught up to Mr Corbett, after the commission of count 2, the vehicle clipped him as he was attempting to jump or pull himself over the concrete barrier that was impeding his escape. The impact of the vehicle caused Mr Corbett to fall back onto the roadway. He was defenceless. The appellants, and the other male or males with them, approached Mr Corbett and struck him a number of times (including a blow to the head) with baseball bats or similar implements. His Honour was satisfied beyond reasonable doubt that each of the appellants, in striking Mr Corbett, intended to cause him significant physical harm.

76 It is true that the injury to Mr Corbett's finger was materially less serious than the injuries suffered by victims in numerous prior cases of unlawfully doing grievous bodily harm. However, that fact was decisively outweighed by the serious features of the offending in relation to count 3 which I have just mentioned.

77 The appellants did not have the mitigation that a plea of guilty would have brought. Mr Winmar did not have the mitigation of youth. Mr Lawrence was, however, relatively youthful for sentencing purposes. Each of the appellants had a prior criminal record. This did not, of course, aggravate the current offending, but it demonstrated that neither of them was of prior good character. Mr Winmar's prior criminal record was materially worse than Mr Lawrence's. Nothing in the circumstances leading up to the offending reduced Mr Winmar's or Mr Lawrence's culpability or moral blameworthiness. Both of the appellants failed to accept responsibility for the offending. They were at 'some risk' of reoffending.

78 Personal deterrence, general deterrence and the protection of the public were sentencing factors of importance.

79 It is plain that a term of immediate imprisonment was the only appropriate sentencing option.

80 I am satisfied that it is not reasonably arguable that the sentence of 3 years 3 months' immediate imprisonment imposed on each of Mr Winmar and Mr Lawrence for count 3 was manifestly excessive. That is, when the sentence is viewed from the perspective of the maximum penalty (10 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:

(c) the nature and extent of the injury to Mr Corbett's finger;

(d) the general pattern of sentencing for offences of this kind;

(e) the importance of personal and general deterrence as sentencing factors; and

it is not reasonably arguable that the length of the term of imprisonment was unreasonable or plainly unjust.

81 The sentence of 3 years 3 months' immediate imprisonment was commensurate with the seriousness of count 3 and was within the range open to the trial judge on a proper exercise of his discretion.

82 Ground 1 in each of the appeals is without merit.

83 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

84 The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).

85 The so-called one transaction rule or continuing episode rule is not, of course, a rule at all, but merely a guideline. Ultimately, each case must depend on its own facts and circumstances. See Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [23] (Steytler P). That is, the sentencing court must decide, in each case, whether the application of the guideline would result in an appropriate measure of the total criminality involved in the offending conduct.

86 I am satisfied that it was necessary, in order properly to mark the seriousness of Mr Winmar's and Mr Lawrence's overall offending, for the individual sentences imposed on each of them for counts 2 and 3 to be served cumulatively. Counts 2 and 3 were separate and distinct offences and there was a material interval between their commission. As I have mentioned, the trial judge reduced, in the application of the totality principle, the individual sentences he would otherwise have imposed for count 2.

87 His Honour appropriately differentiated between Mr Winmar, on the one hand, and Mr Lawrence, on the other, in imposing the individual sentences for count 2 and the total effective sentences.

88 In my opinion, after taking into account the maximum penalty (10 years' imprisonment) for counts 2 and 3; the facts and circumstances of the offending (including Mr Corbett's vulnerability) viewed as a whole; the nature and extent of the injuries to Mr Corbett's leg and finger; the impact of the offending on Mr Corbett; the total effective sentences imposed in prior cases with at least some features comparable to the appellants' offending; the place which the appellants' overall criminal conduct occupies on the scale of seriousness of offences of this kind; the personal circumstances of each of the appellants; and all other sentencing factors (including the limited mitigating features), each of the total effective sentence of 4 years 6 months' immediate imprisonment imposed on Mr Winmar, and the total effective sentence of 4 years' immediate imprisonment imposed on Mr Lawrence, was within the range open to his Honour on a proper exercise of his discretion.

89 Each of the total effective sentences bears a proper relationship to the overall criminality involved in the particular appellant's commission of counts 2 and 3, viewed in their entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors. It is not reasonably arguable, in either case, that a proper basis exists for inferring error from the sentencing outcome.

90 Ground 2 in each of the appeals is without merit.

91 Although, as I have mentioned, each of Mr Winmar and Mr Lawrence should be granted an extension of time to appeal, neither of them has a reasonable prospect of success in relation to proposed ground 1 or proposed ground 2. Leave to appeal should be refused in each case. The appeals must be dismissed.