Creusot v The State of Western Australia - [2022] WASCA 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CREUSOT -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 117
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   24 JUNE 2022
DELIVERED          :   6 SEPTEMBER 2022
FILE NO/S:   CACR 87 of 2021
CACR 88 of 2021

BETWEEN: DAVID PETER CREUSOT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 91 of 2021
CACR 92 of 2021

BETWEEN: DAVID PETER HOWELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number            :   IND 1656 of 2020

Catchwords:

Criminal law - Appeal against conviction - Edwards lies - Where appellants denied, during police interviews, ever having been to the premises at which the offending occurred - Where appellants' DNA was found inside the premises - Whether trial judge erred in leaving those denials to the jury as lies capable of being evidence of guilt

Criminal law - Appeal against sentence - Appellants convicted after trial of aggravated home burglary and aggravated armed robbery - Where offences contained one or more common legal or factual elements - Where offences contained common circumstances of aggravation - Whether appellants were punished more than once for the same unlawful conduct - Whether total effective sentence of 7 years 10 months' imprisonment infringed the first limb of the totality principle

Legislation:

Criminal Code (WA), s 392(c), s 401(2)(a)
Sentencing Act 1995 (WA), s 6(1), s 11(1)

Result:

In the conviction appeals, leave to appeal on ground 1 refused
In the sentence appeals, leave to appeal on each of grounds 1 and 2 refused
Appeals dismissed

Category: B

Representation:

CACR 87 of 2021

CACR 88 of 2021

Counsel:

Appellant	:	A O Karstaedt
Respondent	:	L E Christian SC

Solicitors:

Appellant	:	Anthony Karstaedt
Respondent	:	Director of Public Prosecutions (WA)

CACR 91 of 2021

CACR 92 of 2021

Counsel:

Appellant	:	A O Karstaedt
Respondent	:	L E Christian SC

Solicitors:

Appellant	:	Anthony Karstaedt
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Allami v The State of Western Australia [2013] WASCA 230
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
Brindley v The State of Western Australia [2019] WASCA 153
Butler v The State of Western Australia [2012] WASCA 249
Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310
Hayward v The State of Western Australia [2020] WASCA 57
Hedgeland v The State of Western Australia [2013] WASCA 97
Herz v The State of Western Australia [2022] WASCA 73
Hiemstra v The State of Western Australia [2021] WASCA 96
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kabambi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2020] WASCA 29
Lesay v The State of Western Australia [2011] WASCA 154
Leung v The State of Western Australia [2020] WASCA 81
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Moore v The State of Western Australia [2019] WASCA 35
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Carlton [2018] QCA 294
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Hartwick [2005] VSCA 264; (2005) 14 VR 125
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Reid [2018] QCA 63; [2019] 1 Qd R 63
R v White [1998] 2 SCR 72
Roffey v The State of Western Australia [2007] WASCA 246
Salkilld v The State of Western Australia [2017] WASCA 168
The State of Western Australia v ADS [2021] WASCA 99
The State of Western Australia v O'Driscoll [2022] WASCA 65
The State of Western Australia v Peacock [2013] WASCA 248
The State of Western Australia v Quartermaine [2021] WASCA 145
VXM v The State of Western Australia [2022] WASCA 74

BUSS P:

The appellant in CACR 87 and 88 of 2021 (Mr Creusot) and the appellant in CACR 91 and 92 of 2021 (Mr Howell) have applied for leave to appeal against conviction and sentence.
Mr Creusot and Mr Howell were convicted, after a joint trial before Petrusa DCJ and a jury, of two counts in an indictment.
Count 1 alleged that on 18 November 2019, at Maddington, Mr Creusot and Mr Howell, while in the place of the complainant without his consent, assaulted the complainant, and that:
(a)Mr Creusot and Mr Howell were armed with a dangerous weapon, namely a gun;
(b)Mr Creusot and Mr Howell were in company with each other;
(c)Mr Creusot and Mr Howell did bodily harm to the complainant;
(d)immediately before the commission of the offence, Mr Creusot and Mr Howell knew or ought to have known that there was another person in the place;
(e)the place was ordinarily used for human habitation; and
(f)Mr Howell is a repeat offender,
contrary to s 401(2)(a) read with s 401(4)(b) of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place as in count 1, Mr Creusot and Mr Howell stole from the complainant, with threats of violence, a sum of money the property of the complainant, and that:
(a)Mr Creusot and Mr Howell were armed with a dangerous weapon, namely a gun;
(b)Mr Creusot and Mr Howell were in company with each other; and
(c)Mr Creusot and Mr Howell did bodily harm to the complainant,
contrary to s 392(c) and s 392(d) of the Code.

The grounds of appeal relied upon by Mr Creusot and Mr Howell in the conviction appeals and the sentence appeals are identical.
The sole ground of appeal in the conviction appeals alleges that the trial judge erred in directing the jury on the basis that it was open to the jury to find that alleged lies told by each of Mr Creusot and Mr Howell in video records of interview with police were Edwards v The Queen[1] lies told out of a consciousness of guilt and that the error of law occasioned a miscarriage of justice.
[1] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
There are two grounds of appeal in the sentence appeals. Ground 1 alleges that her Honour erred in sentencing each of Mr Creusot and Mr Howell by punishing Mr Creusot and Mr Howell more than once for the same acts or conduct, contrary to s 11(1) of the Sentencing Act 1995 (WA), alternatively, which resulted in sentences that were not commensurate with the seriousness of the offences as required by s 6(1) of the Sentencing Act. Ground 2 alleges that her Honour imposed a total effective sentence on each of Mr Creusot and Mr Howell which infringed the first limb of the totality principle.
None of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused on each ground. All of the appeals must be dismissed.
I agree with Mazza and Beech JJA's reasons in relation to the sentence appeals. I will state my own reasons in relation to the conviction appeals.

Conviction appeals: the sole fact in issue at trial

The sole issue at trial was the identity of the offenders. The State alleged that Mr Creusot and Mr Howell were the offenders. Mr Creusot and Mr Howell denied that they were the offenders. The critical question was therefore whether the State had proved beyond reasonable doubt that Mr Creusot and Mr Howell were in fact the offenders.

Conviction appeals: overview of the State's case at trial

The State's case at trial was that Mr Creusot and Mr Howell broke into the complainant's home at unit 11, 47 Kelvin Road, Maddington. Mr Creusot and Mr Howell had disguised their appearance. They gained entry to the home unit by breaking a window. After the offences were committed and Mr Creusot and Mr Howell had left the scene, police were called and a forensic examination of the home unit was carried out.
Traces of blood on a walk-in robe to the main bedroom and on a shopper's door next to the kitchen matched Mr Creusot's DNA profile. Traces of blood on the bathroom wall next to the broken window and on the arm of a chair in the lounge room matched Mr Howell's DNA profile.
The complainant gave evidence that he did not know Mr Creusot or Mr Howell and that, to the best of his knowledge, neither of them had been inside his home unit.
The complainant said that the offenders had disguised their appearance and the only facial features he could see were their eyes and nose. The complainant described one of the offenders as having darker skin, brown skin that was not natural, and skin that was burnt or wrinkled around the eyes. However, the complainant acknowledged, in cross‑examination, that he had told the police that the skin looked like it may have been burnt, or may have been wrinkled, and that there was something different about the face of the offender he was describing; in particular, that it looked like the offender in question had burnt scarring around his eyes (ts 59, 79).
Detective Senior Constable Tomkin gave evidence that a close‑up photograph taken by police of the left side of Mr Creusot's face showed a 'brownish' circular blemish near his eye (ts 199).
The State's case on the issue of identity was circumstantial. The facts relied upon by the State included alleged Edwards lies told by each of Mr Creusot and Mr Howell during video recorded interviews with police. The alleged Edwards lies told by each of Mr Creusot and Mr Howell were to the effect that he had never been to or inside the complainant's home unit. The facts relied upon by the State in relation to Mr Creusot also included that Mr Creusot's appearance was not inconsistent with the complainant's description of one of the offenders having darker skin, brown skin that was not natural, and skin that was burnt or wrinkled around the eyes.

Conviction appeals: Mr Creusot's video recorded interviews with police

On 11 December 2019, Mr Creusot participated in two video recorded interviews with police.
During the first interview one of the investigating police officers informed Mr Creusot that he had been arrested 'on suspicion of aggravated burglary and commit stealing and aggravated robbery whilst armed and discharging a firearm with intent to cause fear that occurred around 2.15 pm on the 18^th of November, 2019' (VROI 6, 9). Mr Creusot said that he did not know anything about that offending (VROI 9).
Later in the first interview the following exchange occurred between one of the investigating police officers and Mr Creusot (VROI 15):
DET S/CON TOMKIN: No, okay. Um, the unit complex I'm talking of, number 47 Kelvin Road, um, you've been there before?
CREUSOT: No, not that I can think of.
DET S/CON TOMKIN: Have you been to unit 11 before?
CREUSOT: No.
DET S/CON TOMKIN: And do you know anyone who lives in that unit complex?
CREUSOT: No.
DET S/CON TOMKIN: Okay. Um, have you been inside unit 11, 47 Kelvin Road?
CREUSOT: Not that I am aware of, no.
During the second interview the following exchange occurred between one of the investigating police officers and Mr Creusot (VROI 61-62):
DET S/CON TOMKIN: No, um, okay. So you said that you've never been to that address before, the unit 11, 47, um, Kelvin [Road] in Maddington.
CREUSOT: Yeah.
…
DET S/CON TOMKIN: Okay. Um, I'm going to show you a picture of the address. Um, oh, actually, uh, yeah. I'll show you a picture of the address. Have you been to that address before?
CREUSOT: [indistinct] no, nuh. Units and that, I don't think - nuh.
DET S/CON TOMKIN: Doesn't look familiar?
CREUSOT: Nuh, not - especially the colouring of - - -
DET S/CON TOMKIN: No.
CREUSOT: No.
DET S/CON TOMKIN: Okay. I'm going to mark that as H-T-3, if I could just ask you to sign that for me, please. Thank you. Um, this photo I'm showing you is a photo of a smashed window. Um, which is the point of entry round the back of the address - um, the address right here. So the entry was just round the back.
CREUSOT: Mmm.
DET S/CON TOMKIN: Did you enter through that window on the 18th - - -
CREUSOT: No.
DET S/CON TOMKIN: - - - of November, 2019?
CREUSOT: No
DET S/CON TOMKIN: No.
CREUSOT: Nuh.
DET S/CON TOMKIN: Did you hurt yourself entering that window on the 18th of November, 2019?
CREUSOT: No.
DET S/CON TOMKIN: Like, cut yourself - - -
CREUSOT: No.
DET S/CON TOMKIN: No.
CREUSOT: No.

Conviction appeals: Mr Howell's video recorded interview with police

On 26 December 2019, Mr Howell participated in one video recorded interview with police.
During the interview one of the investigating police officers informed Mr Howell that he had been arrested 'on suspicion of aggravated burglary and commit aggravated robbery whilst armed and discharging a firearm with intent to cause fear that occurred … around 2.15 pm on the 18^th of November, 2019' (VROI 4, 7).
Later in the interview the following exchange occurred between one of the investigating police officers and Mr Howell (VROI 7 - 10, 14 - 15):
DET S/CON TOMKIN: … Tell me your involvement in that offence.
HOWELL: I wasn't even there.
DET S/CON TOMKIN: Are you aware of that offence?
HOWELL: Nuh.
…
DET S/CON TOMKIN: … Tell me about Unit 11, 47 Kelvin Road in Maddington.
HOWELL: I don't even know where it is.
DET S/CON TOMKIN: How about Kelvin Road - - -
HOWELL: Nuh.
DET S/CON TOMKIN: - - - Maddington?
HOWELL: I know where Kelvin Road is.
DET S/CON TOMKIN: Yeah?
HOWELL: Yeah.
DET S/CON TOMKIN: Are you aware of any units on Kelvin Road?
HOWELL: Nah.
DET S/CON TOMKIN: Okay. Have you ever been to Unit 11, 47 Kelvin Road, Maddington?
HOWELL: Nuh.
DET S/CON TOMKIN: Okay. Is there any employment that might have taken you to an address in that area?
HOWELL: Nuh.
DET S/CON TOMKIN: No, or friend or relative?
HOWELL: Nuh.
DET S/CON TOMKIN: No? Have you ever been inside Unit 11, 47 Kelvin Road in Maddington?
HOWELL: Nuh.
DET S/CON TOMKIN: No? How about inside the unit complex?
HOWELL: Nuh.
DET S/CON TOMKIN: No. Okay. I'm going to show you a photograph, um, so this is a photograph of the unit, Unit 11. I'll just put Unit 11 at the top. Are you okay seeing that with your eyes?
HOWELL: Yeah.
DET S/CON TOMKIN: Yeah? Have you been to that unit before?
HOWELL: Nuh.
DET S/CON TOMKIN: Is there any reason you would have been there?
HOWELL: Nuh.
DET S/CON TOMKIN: No? Does it look familiar?
HOWELL: Nuh.
…
DET S/CON TOMKIN: … Now, we're speaking about an offence that happened on the 18th of November, 2019. Were you inside that unit on the 18th of November, 2019?
HOWELL: Nuh.
…
DET S/CON TOMKIN: Okay. So, you said about Unit 11, 47 Kelvin Road, that you - you've never been there, never been inside it. You weren’t there on the 18th of November, you know the road but you're not aware of the units. You don't believe you've been to the unit complex and you've not had any employment or friends that would have brought you to the unit.
HOWELL: Nuh.
…
DET S/CON TOMKIN: … I'm alleging that you've been to that address on the 18th of November, [2019].
HOWELL: Well, I really think you're wrong, then.
DET S/CON TOMKIN: Sorry?
HOWELL: I reckon you're wrong.
DET S/CON TOMKIN: Why's that?
HOWELL: Because I haven't been there.
DET S/CON TOMKIN: Okay. You say you've never been inside there?
HOWELL: Nuh.
DET S/CON TOMKIN: Did you ever break into that property?
HOWELL: Nuh.
DET S/CON TOMKIN: Did you ever take anything from that property?
HOWELL: Nuh.
DET S/CON TOMKIN: Did you ever assault anyone in that property?
HOWELL: Nuh.
DET S/CON TOMKIN: Did you ever discharge a firearm in that property?
HOWELL: Nuh.
DET S/CON TOMKIN: No? Okay. Did you ever demand money off the occupant of that property - - -
HOWELL: Nuh.
DET S/CON TOMKIN: - - - whilst inside?
HOWELL: Nuh.
DET S/CON TOMKIN: So there's absolutely no reason that you've been in that property before?
HOWELL: Nuh. I haven't been there.

Conviction appeals: the specific alleged Edwards lies relied upon by the State at trial

At trial the State relied upon specific alleged Edwards lies told by Mr Creusot as follows:
First interview (VROI 15)
DET S/CON TOMKIN: No, okay. Um, the unit complex I'm talking of, number 47 Kelvin Road, um, you've been there before?
CREUSOT: No, not that I can think of.
DET S/CON TOMKIN: Have you been to unit 11 before?
CREUSOT: No.
DET S/CON TOMKIN: And do you know anyone who lives in that unit complex?
CREUSOT: No.
DET S/CON TOMKIN: Okay. Um, have you been inside unit 11, 47 Kelvin Road?
CREUSOT: Not that I am aware of, no.
Second interview (VROI 61 - 62)
DET S/CON TOMKIN: No, um, okay. So you said that you've never been to that address before, the unit 11, 47, um, Kelvin [Road] in Maddington.
CREUSOT: Yeah.
…
DET S/CON TOMKIN: Okay. Um, I'm going to show you a picture of the address. Um, oh, actually, uh, yeah. I'll show you a picture of the address. Have you been to that address before?
CREUSOT: [indistinct] no, nuh. Units and that, I don't think - nuh.
DET S/CON TOMKIN: Doesn't look familiar?
CREUSOT: Nuh, not - especially the colouring of - - -
DET S/CON TOMKIN: No.
CREUSOT: No.
At trial the State relied upon specific alleged Edwards lies told by Mr Howell as follows:
First lie (VROI 8)
DET S/CON TOMKIN: Okay. Have you ever been to Unit 11, 47 Kelvin Road, Maddington?
HOWELL: Nuh.
Second lie (VROI 9)
DET S/CON TOMKIN: No? Have you ever been inside Unit 11, 47 Kelvin Road in Maddington?
HOWELL: Nuh.
Third lie (VROI 9)
DET S/CON TOMKIN: Yeah? Have you been to that unit before?
HOWELL: Nuh.
DET S/CON TOMKIN: Is there any reason you would have been there?
HOWELL: Nuh.
Fourth lie (VROI 14)
DET S/CON TOMKIN: Okay. You say you've never been inside there?
HOWELL: Nuh.

Conviction appeals: overview of Mr Creusot and Mr Howell's cases at trial

Defence counsel for Mr Creusot made an opening statement. Defence counsel said in her opening statement that (ts 45):
(a)Mr Creusot was at the complainant's home unit on the day of the offending, but Mr Creusot had departed before offending occurred;
(b)Mr Creusot saw the complainant and other men in the home unit;
(c)Mr Creusot had gone to the complainant's home unit to purchase and to use drugs;
(d)Mr Creusot may have deposited his blood at locations in the home unit;
(e)when Mr Creusot was interviewed by police, Mr Creusot said that he was in the Balga/Mirrabooka area 'and once he gives evidence, if he gives evidence, you might think that that was a lie. He also had told them that he'd never been to that address and you might think that was a lie and he also I think told them that he didn't know the complainant … and you might think that was a lie';
(f)Mr Creusot denied being a home invader, denied being involved in the armed robbery at the complainant's home unit, denied having a firearm or being at the home unit with a firearm, and denied having assaulted the complainant; and
(g)at the time of the offences, Mr Creusot was at a former partner's house in a nearby suburb.
Mr Creusot gave evidence at the trial.
Mr Creusot said in evidence that he had been at the complainant's home unit earlier in the day on which the offending occurred. At the unit Mr Creusot had injected himself intravenously with drugs he had purchased from the complainant. Mr Creusot bled as a result of the injection. He used his hand to wipe the blood. He then touched parts of the interior of the unit on which his DNA was located. Mr Creusot also said in evidence that Mr Howell had been to the unit at an earlier time and had also injected himself intravenously with drugs (ts 240 ‑ 244, 246 ‑ 249).
Mr Creusot accepted in his evidence that he had lied to police about having been in Balga/Mirrabooka on 18 November 2019. He also admitted having lied to police about never having been inside the complainant's home unit. Mr Creusot explained that he had lied to police because he did not want to dob in the complainant for selling drugs and because he was panicking about having breached a suspended imprisonment order that had previously been imposed upon him (ts 244, 250, 251).

Defence counsel for Mr Creusot conceded in her closing address that:
(a)the close‑up photograph taken by police of the left side of Mr Creusot's face showed a circular skin pigmentation near his eye (ts 22); and
(b)Mr Creusot's lies to police were 'fairly blatant on one level, saying several times he hadn't been to that [home unit]' (ts 23) and that Mr Creusot's lie after having been shown photographs of the complainant and the home unit 'we accept is a fairly significant one' (ts 24).
Defence counsel for Mr Howell did not make an opening statement (ts 44).
Mr Howell did not give or adduce any evidence (ts 226).
Defence counsel for Mr Howell impliedly conceded, during his cross‑examination of Mr Creusot and in his closing address, that Mr Howell had relevantly lied to police. Counsel elicited from Mr Creusot in cross‑examination evidence to the effect that Mr Creusot and Mr Howell knew each other at the time of the alleged offending; that very close to and before the date of the alleged offending Mr Creusot saw Mr Howell use methylamphetamine by injecting it; Mr Creusot also saw Mr Howell bleeding after he had injected the drug; and Mr Creusot had been with Mr Howell at the complainant's home unit close to the date of the alleged offending for the purpose of purchasing drugs (ts 246 - 248).
Defence counsel for Mr Howell said in his closing address (ts 29):
Now, you heard also some evidence in relation to lies and her Honour will be telling you or directing you in relation to that part. But in relation to Mr Howell in relation to that for the interview, the interview that you saw, I suggest there's a number of reasons why people may lie.
Defence counsel for Mr Howell, in his closing address, relied upon Mr Creusot's evidence to the effect that Mr Creusot had intravenously taken drugs when Mr Howell was present; there was blood as a result of injecting the drugs; and that Mr Creusot had lied to police about his never having been inside the complainant's unit because he did not want to snitch on the complainant for selling drugs (ts 28 - 29).

Conviction appeals: the trial judge's Edwards direction

At the trial the prosecutor tendered, as part of the State's case, edited versions of the video recorded interviews with police (including the specific alleged Edwards lies). Defence counsel for Mr Creusot and defence counsel for Mr Howell did not object to the tender.
After the close of the defence cases and before the commencement of closing addresses, the trial judge raised with the prosecutor and defence counsel, in the absence of the jury, what directions should be given by her Honour to the jury in relation to the alleged lies (ts 276 - 280).
Defence counsel for Mr Creusot and defence counsel for Mr Howell took no issue with a direction being given in accordance with Edwards. Indeed, defence counsel for Mr Creusot and defence counsel for Mr Howell made submissions to her Honour about the content of the direction (ts 277 - 285).
In her summing up, the trial judge gave the jury an Edwards direction in conventional terms (ts 315 - 320). The direction included an instruction to the effect that it was for the jury to determine whether what each of Mr Creusot and Mr Howell had said in their video recorded interviews with police was a lie. It was necessary for the jury to be satisfied that what each of Mr Creusot and Mr Howell had said was a lie, either because Mr Creusot or Mr Howell (as the case may be) admitted that it was a lie or because other evidence proved that what he had said was a lie. Her Honour noted that the State's case was that what each of Mr Creusot and Mr Howell had said was a lie because his DNA had been found inside the complainant's home unit and, also, in the case of Mr Creusot, because Mr Creusot accepted in evidence that he had told a lie (ts 318 ‑ 319). No redirection or additional direction was sought in relation to the alleged lies.

Conviction appeals: the submissions by counsel for Mr Creusot and Mr Howell

Counsel for Mr Creusot and Mr Howell in the appeal did not complain about the content of the trial judge's directions in relation to the alleged Edwards lies.
The complaint on appeal is that a direction in accordance with Edwards should not have been given at all.
Counsel submitted that the alleged lies told by each of Mr Creusot and Mr Howell in the video recorded interviews with police had two aspects:
(a)first, that he was not at the complainant's home unit when the alleged offences were committed; and
(b)secondly, that he had not been to the complainant's home unit on previous occasions.
As to the first aspect, counsel submitted that the alleged lies relied upon by the State were not admitted to be lies or proved independently to be lies. Consequently, so it was submitted, the lies 'could not qualify' as Edwards lies.
Further, counsel submitted that the alleged lies were, in effect, a denial of the State's case. It was submitted that leaving the alleged lies to the jury as lies showing a consciousness of guilt had the effect of undermining Mr Creusot and Mr Howell's denial of the State's case and gave rise to a miscarriage of justice.
As to the second aspect, counsel submitted that the State's reliance upon what Mr Creusot and Mr Howell had said as alleged Edwards lies, directly contradicted the State's case.
It was submitted that the State's case at trial was that, before the commission of the offences, Mr Creusot and Mr Howell had never been to the complainant's home unit and that the complainant did not know either of them. It was submitted that this contention was fundamental to the State's case and was essential in order for the State to establish that Mr Creusot and Mr Howell's DNA had not been deposited in the home unit on an occasion before the alleged offending.
According to counsel, it was incongruous that the State's case, at one and the same time, was that:
(a)each of Mr Creusot and Mr Howell had lied when he said that he had not previously been to the complainant's home unit; and
(b)each of Mr Creusot and Mr Howell had never previously been to the home unit.
Counsel submitted that the State could not contend that a denial by Mr Creusot and Mr Howell of having previously been to the home unit constituted an Edwards lie in circumstances where the State's case was that Mr Creusot and Mr Howell had not previously been to the home unit.
It was submitted that the alleged lies told by each of Mr Creusot and Mr Howell (to the effect that he had never been inside the complainant's home unit) were not capable of constituting implied admissions against interest and her Honour should not have left the alleged lies to the jury on that basis.
In summary, counsel contended that what Mr Creusot and Mr Howell had said to police in the interviews about whether they had previously been to the complainant's home unit:
(a)insofar as what they said related to the time at which the offences were committed, what Mr Creusot and Mr Howell said was a denial of the State's case and, in any event, what they said was not admitted or proved to be a lie; and
(b)insofar as what they said related to previous occasions, what Mr Creusot and Mr Howell said was consistent with the State's case and could not be characterised as a lie, let alone an Edwards lie.
Counsel also contended in his written submissions:
(a)The alleged Edwards lies were told by Mr Creusot and Mr Howell after they were informed by an investigating police officer that they had been arrested on suspicion of having committed the offences of aggravated burglary and aggravated robbery. It followed, so it was submitted, that the requirement mandated by Edwards (211) that alleged consciousness of guilt lies reveal a knowledge of the offence charged or an aspect of it could not be satisfied.
(b)The DNA evidence adduced by the State was merely evidence that went to proof of the State's case and could not be used to challenge Mr Creusot and Mr Howell's denial that they had committed the offences. It followed, so it was submitted, that her Honour should not have informed the jury that the DNA evidence could be used as proof of the alleged Edwards lies.
(c)Treating Mr Creusot and Mr Howell's denials that they had committed the offences as Edwards lies, having regard to the DNA evidence, had the effect of giving 'double weight' to the DNA evidence. However, at the hearing, counsel abandoned that submission (appeal ts 17).
(d)Any lies told by Mr Creusot and Mr Howell to police went only to the issue of their credibility.

Conviction appeals: the submissions by counsel for the State

Counsel for the State submitted that each of Mr Creusot and Mr Howell had told the alleged lies during their video recorded interviews with police. The lies suggested a consciousness of guilt. The lies were admissible and capable of being used by the jury as implied admissions against interest. No miscarriage of justice had been demonstrated.

Conviction appeals: their merits

Evidence which suggests a consciousness of guilt is admissible as an implied admission against interest. If the State relies upon such evidence in a criminal trial, it is open to the accused to offer some explanation, consistent with innocence, which may nullify its force. Various categories of evidence suggesting a consciousness of guilt have been recognised in case law. See Cooper v The Queen.[2]
[2] Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 [86] - [87] (Heydon J).
In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
Ordinarily, an Edwards direction is essential if the State relies upon a lie told by the accused as evidence of his or her guilt.
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a)the lie must be precisely identified;
(b)the lie will not be evidence against the accused unless the lie was deliberate;
(c)there are many reasons why people tell lies, apart from the realisation of guilt;
(d)the lie cannot be used as evidence against the accused if the jury accepts an explanation for the lie that is consistent with innocence;
(e)the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f)the facts, events and circumstances relied upon by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 ‑ 211); Osland v The Queen;[3] R v Hartwick;[4] R v Ciantar;[5] Martinez v The State of Western Australia;[6] Hedgeland v The State of Western Australia;[7] Allami v The State of Western Australia;[8] Birdsall v The State of Western Australia.[9]
[3] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ).
[4] R v Hartwick [2005] VSCA 264; (2005) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA).
[5] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] ‑ [87] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA).
[6] Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] ‑ [285] (Martin CJ, Steytler P & Miller JA).
[7] Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA; Martin CJ agreeing).
[8] Allami v The State of Western Australia [2013] WASCA 230 [78] (Buss JA; Hall J agreeing).
[9] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [230] (Buss P & Mazza JA).
An accused's post-offence incriminating conduct, including lies which the State alleges constitute implied admissions against interest, is circumstantial evidence. A jury may accept and act upon evidence of the accused's post-offence conduct, including lies, if the conduct constitutes an implied admission against interest, without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80]; Allami [81]; Birdsall [231].
In R v Baden-Clay,[10] French CJ, Kiefel, Bell, Keane and Gordon JJ cited with approval the following statement by Major J of the Supreme Court of Canada in R v White:[11]
As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role.
[10] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [73].
[11] R v White [1998] 2 SCR 72 [27].
An accused's post-offence incriminating conduct, including lies which the State alleges constitute implied admissions against interest, must not be considered on a piecemeal basis, but must be evaluated as part of the totality of the evidence. See R v Hillier.[12]
[12] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] - [48] (Gummow, Hayne & Crennan JJ).
In R v Reid,[13] Sofronoff P (Morrison JA and Jackson J agreeing) expressed the view that confusion can arise as to the significance of evidence of an accused's post‑offence conduct if consideration of the issue is restricted to the broad question of whether the evidence unequivocally demonstrates consciousness of guilt of the charged offence.
[13] R v Reid [2018] QCA 63; [2019] 1 Qd R 63 [81].
His Honour noted that evidence of post‑offence conduct is often adduced to prove a single fact in issue rather than the commission of a distinct offence which comprises several elements. His Honour explained:
This is so because after committing a crime a guilty person is not usually conscious, for example, of having committed an offence against s 302 Criminal Code 1899 as distinct from an offence against s 303 Criminal Code 1899 and does not then set about to behave accordingly. Rather, such a person is conscious that he or she has, for example, stabbed the deceased intending to kill and has succeeded in so doing. The guilty acts are the stabbing, the ensuing death and the killer’s consciousness of having done so intending to kill. Consequently, evidence of post-offence conduct may be led to prove one or more, or all, of those facts. Whether the conduct is particularly relevant to one such fact or element may depend upon the weight of proof of each element that must be established as well as upon the forensic choices made by the parties about the elements and facts that they wish to put in issue [83].
Later in his reasons, Sofronoff P said:
It is … a mistake to focus attention upon 'the crime charged' rather than upon the relevant behaviour of the person accused of that crime and what that behaviour may say about the fact it is led to prove. Sometimes it is led to prove only the accused's complicity in an offence. Sometimes the accused's involvement is admitted but an element of the offence is in issue and it is that factual element alone which is said to be proved, by inference, from the accused's actions after the offence had been committed.
Consequently, when considering evidence of post-offence conduct as proof of guilt, whether by proof of statements or other acts, it is essential first to identify the fact sought to be proved by that evidence. The significance of the evidence, and its weight, will vary according to the relationship of the post-offence conduct to the fact sought to be proved by proof of that conduct [92] - [93].
See also R v Carlton.[14]
[14] R v Carlton [2018] QCA 294 [110] - [112] (Bowskill J; Morrison & Philippides JJA agreeing).
A post‑offence lie told by an accused which suggests a consciousness of guilt will be admissible as an implied admission against interest if, relevantly, the lie is probative of a fact in issue, including a fact in issue which the State seeks to prove, wholly or partly, by inference on the basis of the lie and other circumstantial evidence. A post‑offence lie told by an accused which suggests a consciousness of guilt will reveal knowledge of some aspect of the offence charged if the relevant knowledge, either alone or in combination with other evidence, is probative of a fact in issue.
In the present case, I am of the opinion, for the following reasons, that the sole ground of appeal in the conviction appeals is without merit.
First, whether the alleged lies told by each of Mr Creusot and Mr Howell in the video recorded interviews with police were lies and, if so, whether they were lies told out of a consciousness of guilt was to be determined by reference to the facts and circumstances at the time the alleged lies were told.
Secondly, the essence of the alleged lies told by each of Mr Creusot and Mr Howell in the video recorded interviews was that he had never been to the complainant's home unit and he had never been inside the home unit. The alleged lies would be falsified if Mr Creusot and Mr Howell had entered the home unit on any occasion.
Thirdly, on a fair assessment of the alleged lies told by each of Mr Creusot and Mr Howell, in the context of the relevant video recorded interview as a whole, the alleged lies were general and unequivocal. Each of Mr Creusot and Mr Howell asserted that he had never been to or inside the complainant's home unit. Neither of them distinguished between having been to or inside the home unit at the time of the alleged offending, on the one hand, and having been to or inside the home unit before the alleged offending, on the other. There is no foundation, having regard to the form in which the alleged lies were expressed and their substance, for dividing the alleged lies into the two aspects contended for by counsel for Mr Creusot and Mr Howell and then analysing separately whether each aspect constituted a lie told out of a consciousness of guilt and therefore an implied admission against interest.
Fourthly, the State did not assert or accept at trial that Mr Creusot or Mr Howell had been to or inside the complainant's home unit before the alleged offending.
Fifthly, the assertion made by or on behalf of Mr Creusot and Mr Howell at trial to the effect that they had been to and inside the complainant's home unit before the alleged offending did not detract from the status of the alleged lies as alleged lies having regard to the facts and circumstances at the time the alleged lies were told.
Sixthly, it was for the jury to decide, on the whole of the evidence, whether the alleged lies told by each of Mr Creusot and Mr Howell related to the alleged offending. The fact that the police had informed Mr Creusot and Mr Howell, before Mr Creusot and Mr Howell told the alleged lies, that they had been arrested on suspicion of having committed an aggravated burglary and an aggravated armed robbery on 18 November 2019 and that the police wanted to speak to them about unit 11, 47 Kelvin Road, Maddington, did not mean that the alleged lies could not reveal knowledge of the charged offences or some aspect of those offences. Indeed, the fact that the alleged lies were told after Mr Creusot and Mr Howell had been made aware of the offences they were suspected of having committed, gave the alleged lies, if proved to have been lies, probative force. It was reasonably open to the jury, on the whole of the evidence, to be satisfied that the alleged lies revealed knowledge by Mr Creusot and Mr Howell that they had committed the offences which the police were investigating, including by their having broken into and entered the complainant's home unit.

Seventhly, if the alleged lies told by each of Mr Creusot and Mr Howell were lies told out of a consciousness of guilt, the lies were relevant to and probative of whether Mr Creusot and Mr Howell were in fact the offenders. As I have mentioned, the sole issue at trial was the identity of the offenders. The critical question was whether the State had proved beyond reasonable doubt that Mr Creusot and Mr Howell were in fact the offenders. The alleged lies were relevant to and had probative value in relation to the issue of identity.
Eighthly, if the alleged lies told by each of Mr Creusot and Mr Howell were lies told out of a consciousness of guilt, the lies had two areas of operation having regard to the facts in contest at trial. The lies were relevant to and probative of the fact that, as alleged by the State, Mr Creusot and Mr Howell were indeed the offenders who had broken into the complainant's home unit and had committed the armed robbery. Also, the lies were relevant to the State's contention that Mr Creusot's evidence, by way of explanation for the presence of his blood in the home unit, that he had bled in the unit earlier on the day in question upon injecting drugs that he had purchased from the complainant, was untruthful. So, the lies were relevant to and probative of an element of the charged offences which the State had to prove beyond reasonable doubt and were also relevant to the State's contention that there was no reasonable possibility that Mr Creusot's evidence as to how his blood was deposited in the home unit might be true.
Ninthly, the alleged lies told by each of Mr Creusot and Mr Howell were not merely a denial of the State's case. When Mr Creusot and Mr Howell told the alleged lies they had not been charged with any offence. They had been arrested in the course of an investigation by police. When the alleged lies were told there was no prosecution case against them.
Tenthly, the DNA evidence was capable of proving that the alleged lies told by each of Mr Creusot and Mr Howell were actually lies in that the DNA evidence was capable of proving that, contrary to the statements constituting the alleged lies, Mr Creusot and Mr Howell had been to and inside the complainant's home unit. Also, Mr Creusot admitted in his evidence that he had relevantly lied to police in his video recorded interviews when he stated that he had never been to or inside the home unit. Further, defence counsel for Mr Howell impliedly conceded, during his cross-examination of Mr Creusot and in his closing address, that Mr Howell had relevantly lied to police.
Eleventhly, it was reasonably open to the jury, on the whole of the evidence, to conclude that Mr Creusot and Mr Howell told the lies out of a consciousness of guilt (that is, each of them knew that the truth would implicate him in the offending that the police were investigating) because each of Mr Creusot and Mr Howell knew that the only time he had entered the complainant's home unit was when the offending

occurred. The whole of the evidence that the jury had to evaluate in this context included the explanations for the lies given by Mr Creusot in his evidence; the explanations advanced by defence counsel for Mr Creusot and defence counsel for Mr Howell in their submissions to the jury; and the explanations referred to by the trial judge in her summing up. It was reasonably open to the jury, on the whole of the evidence, to be satisfied that if Mr Creusot and Mr Howell had been to and inside the complainant's home unit before the offending, and had not been the offenders, they would not have falsely asserted in their video recorded interviews that they had never been to or inside the home unit. Ultimately, this issue involved a question of fact for the jury.

Twelfthly, the relevance and probative value of the DNA evidence was not confined to proof of the State's circumstantial case that Mr Creusot and Mr Howell were the offenders. The DNA evidence was relevant to and had probative value in proving that the alleged lies were actually lies, in addition to the relevance and probative value of the DNA evidence as a piece of circumstantial evidence in the State's circumstantial case that Mr Creusot and Mr Howell were the offenders. The complainant's evidence was capable of proving that the blood was not present in his home unit before the offending occurred. If there was no reasonable possibility that Mr Creusot and Mr Howell had entered the home unit before the offending occurred, the DNA evidence combined with the complainant's evidence constituted a powerful circumstantial case against Mr Creusot and Mr Howell.
Finally, in the circumstances, the alleged lies told by Mr Creusot and Mr Howell were not relevant only to their credibility.
No miscarriage of justice has occurred.

MAZZA & BEECH JJA:

Introduction

The two appellants were jointly charged with two offences: one count of aggravated home burglary and one count of aggravated armed robbery. Following a trial before a judge and jury, at which the sole issue was identity, both appellants were convicted of the offences with which they were charged. They were each sentenced to a total effective sentence of 7 years 10 months' imprisonment.

Each appellant appeals against his conviction and against his sentence. Their grounds of appeal are materially identical.
In the conviction appeals, the appellants advance a single ground of appeal. They contend that the trial judge erred in leaving to the jury, as lies capable of being evidence of guilt, alleged lies each of them told during police interviews.
When interviewed, each of the appellants denied ever having been to the premises at which the offending had occurred. The prosecution adduced DNA evidence to the effect that the DNA of each of the appellants was found inside the complainant's unit (the Unit) in bloodstains that were visible there. The prosecution contended at trial that, in denying having ever been to the premises, each appellant was lying out of consciousness of guilt. The judge directed the jury that it was open to them to so reason, without opposition from the appellants' counsel. On appeal, the appellants contend that this alleged lie was not capable of amounting to evidence of guilt and so should not have been left to the jury on that basis.
Each appellant advances two grounds of appeal against sentence. First, they contend that the judge did not adequately take into account the overlap between the circumstances of aggravation pleaded in relation to each offence, thereby imposing a sentence that was not commensurate with the seriousness of the offences. Ground 2 of each sentencing appeal alleges an infringement of the first limb of the totality principle.
For the reasons that follow, in our opinion, the conviction appeals and the sentence appeals are without merit. We would refuse leave to appeal on the sole ground of appeal against conviction, refuse leave to appeal on both grounds of appeal against sentence and dismiss all the appeals.

The State's case

The State's case, broadly summarised, was that the two appellants broke into the Unit, wearing hooded jumpers pulled tightly over their faces. They smashed a window in order to gain entry. When the complainant attempted to fend them off by brandishing the torch he was carrying, one of the appellants pointed a handgun at him. He was ordered to go back into his bedroom and sit on his bed while the appellants searched for money. They demanded money from him repeatedly. In each case, the complainant denied that he had any money.
At one point, while one of the appellants pointed the handgun at him, the other hit him with the torch on his shoulder and on his leg. One of the appellants shot the gun into the wardrobe while demanding money from the complainant.
When the police came, they observed the shattered bathroom window, what appeared to be gunshot residue and, in various locations, what the police correctly believed to be blood. Traces of blood found on the bathroom wall adjacent to the window and on the couch matched Mr Howell's DNA. Traces of blood on the door to the garage and on the edge of the wardrobe door in the master bedroom matched Mr Creusot's DNA.
Each appellant took part in a video interview with police. In the interview, each of the appellants denied having ever been to the Unit. We will set out each appellant's relevant statements later in these reasons. The State's case in respect of each appellant was that, when the appellant said in his police interview that he had never been inside the Unit, he lied and that it was a lie told out of a consciousness of guilt.[15]
[15] ts 315 - 316.

Defence cases at trial

The only issue at trial concerned the identity of the offenders. The other elements of the offences, and the accompanying circumstances of aggravation, were not in dispute.
Mr Creusot formally admitted that the blood contained his DNA.[16] Mr Howell did not seriously dispute the DNA evidence to the effect that the traces of blood on the bathroom wall and the couch were his blood.[17]
[16] ts 49.
[17] See, for example, ts 28 - 29 (closing addresses).
Mr Creusot gave evidence at trial that sought to explain the presence of his DNA, and Mr Howell's DNA, in the Unit. In summary, he said that he had been to the Unit earlier that day, where he had intravenously injected himself with drugs which he had purchased from the complainant. He bled as a result of the injection. Having used his hand to wipe the blood, he subsequently touched parts of the house in which his DNA was found. He also gave evidence that Mr Howell had been to the Unit at an earlier time and had also injected drugs intravenously.
Mr Howell did not give or adduce evidence. His trial counsel pointed to a number of matters, including Mr Creusot's evidence, in submitting that the jury should not be satisfied beyond reasonable doubt as to Mr Howell's involvement.[18]
[18] ts 322 - 323.

Trial judge's summing up

The trial judge summarised the facts which the State contended the jury should find, in connection with each of the appellants.
As to Mr Howell:[19]
(1)the complainant did not know him and he had not been to the complainant's unit;
(2)his appearance is not inconsistent with the description given by the complainant of one of the offenders;
(3)his blood was located inside the Unit;
(4)his blood was located on a wall adjacent to the broken window which was the point of entry; and
(5)he lied to the police when he said in his interview that he had never been inside the Unit, and that this was a lie told out of a consciousness of guilt.
[19] ts 315.
As to Mr Creusot:[20]
(1)the complainant did not know him and he had never been inside the complainant's unit;
(2)his appearance is not inconsistent with the description given by the complainant of one of the offenders;
(3)his blood was located inside the Unit;
(4)his blood was located in two areas associated with places where the offenders had been, namely on the wardrobe of the master bedroom and in the kitchen;
(5)the blood was not in those places before the two men entered the house because the complainant had not seen it; and
(6)he lied to the police when he told them in his interview that he had never been inside the Unit and this lie was told out of a consciousness of guilt.
[20] ts 315 - 316.
The judge identified for the jury precisely what each accused said in the interview that, on the State's case, constituted the lie.
The judge identified five statements made by Mr Howell. The first two relevant statements were:[21]
Okay. Have you ever been to 11/47 Kelvin Road, Maddington?---Nah.
…
Have you ever been inside 11/47 Kelvin Road in Maddington?---Nah.
[21] ts 317.
After being shown a photo of the Unit, the following exchange occurred between the interviewing officer and Mr Howell:[22]
Have you been to that unit before?---Nah.
Is there any reason you would have been there?---Nah.
[22] ts 317.
After being shown a photo of the complainant, the appellant denied ever having been inside the Unit:[23]
You say you've never been inside [the Unit]---Nah.
[23] ts 317.
Mr Creusot did two interviews. The judge pointed first to the following passage in the first interview:[24]
The unit complex I'm talking of, 47 Kelvin Road, um, you've been there before?---No, not that I can think of.
Have you been to unit 11 before?---No.
And do you know anyone who lives at that unit complex?---No.
Have you been inside 11/47 Kelvin Road?---Not that I am aware of, no.
[24] ts 318.
In the second interview, after showing Mr Creusot a photo of the complainant, the detective asked:[25]
Okay. So you said that you've never been to the address before, 11/47 Kelvin Street in Maddington?---Yeah.
[25] ts 318.
Having shown Mr Creusot the photo of the address where the Unit was, the detective then asked:[26]
I'll show you the picture of the address. Have you been to that address before?---No. Nah. Units and that, I don't think, nah.
Doesn't look familiar?---Nah. Not especially the colouring of - no.
[26] ts 318.
The judge then directed the jury as to the matters of which they had to be satisfied before they could use the lies in the manner invited by the State:
(1)First, that the lie was deliberate.[27]
(2)Second, that the lie related to a 'circumstance or event connected with the offence'.[28] Her Honour said that the jury should have little difficulty in accepting that a lie about 'being in a place where a crime is said to have occurred is a lie relating to a circumstance or event connected with an offence'.[29]
(3)Third, that the 'telling of the lie must be explicable only on the basis that the truth would implicate the accused with the offence with which he has been charged'.[30] The judge stated that the jury had to consider any innocent explanation for the lies.[31]
(4)Finally, that 'the motive to lie was a realisation of guilt and fear of the truth'.[32] This was said to be an inference to be drawn from all of the circumstances.[33]
[27] ts 319.
[28] ts 319.
[29] ts 319.
[30] ts 319.
[31] ts 319 - 320.
[32] ts 320.
[33] ts 320.
As to the third requirement, the judge directed the jury that there may be many reasons for telling a lie, saying that lies may be told out of embarrassment, or to protect someone's feelings. A lie could be told out of panic or to bolster a cause or to escape an unjust accusation, to protect someone or to hide things from family and friends.[34]
[34] ts 319.
Further as to the third requirement, the judge reminded the jury of Mr Creusot's evidence as to why he lied, namely that he 'didn't want to be a snitch because, like, you're buying drugs off people, you're not actually - you don't go dobbing on them, you don't go calling the police on them, and that's the situation I was in. And plus, at the same time, I was panicking and nervous'.[35]
[35] ts 320.
The judge observed that the jury might also think that some of those considerations, such as 'snitching' on a drug dealer, might apply to Mr Howell.[36]
[36] ts 320.
No exception was taken in the appeal to the terms of any of the directions or observations set out below.

Ground of appeal

The sole ground of appeal in each conviction appeal contends that the trial judge erred in law in leaving to the jury, as lies that could be used to prove the appellants' guilt, the alleged lies referred to in [97] - [102] above.
The question of leave to appeal was referred to the hearing of the appeal.

Appellants' submissions

The appellants assert that the lie that they had never been to the Unit is properly seen as having two aspects:[37]
(a)that he was not at the Unit when the alleged offences occurred; and
(b)that he had not been to the Unit on previous occasions.
[37] Appellants' submissions [12]; appeal ts 5. The submissions of each appellant are relevantly identical.
The appellants submit that the first aspect is simply a denial of the State's case and, for that reason, cannot be an Edwards lie. The appellant submits that '[f]or a statement by an accused to be relied on as being a lie, the lie must be admitted or independently proved. It cannot arise simply out of a denial of the State's case'.[38] In those circumstances, leaving the lie as one capable of bearing on guilt to the jury gave rise to a miscarriage of justice.[39]
[38] Appellants' submissions [14].
[39] Appellants' submissions [17].
The appellants submit that the lie in its second aspect is not a lie, as it is consistent with the complainant's evidence, and with the State case at trial. The characterisation of a statement that the appellants had not previously been to the Unit as a lie contradicted the State's case, which was that the DNA evidence demonstrated the appellants' presence in the Unit at the time of the offences, and that the appellants had not been to the Unit prior to that time.[40]
[40] Appellants' submissions [19] - [23].
Thus, analysed by reference to its two aspects, the lie relied on by the State was not capable of being an Edwards lie.
The appellants further submit that an Edwards lie must reveal some knowledge of the offence or an aspect of it. The appellants submit that the fact that the interviewing officers told him of the offence prior to him telling the lie precludes its characterisation as an Edwards lie.[41]
[41] Appellants' submissions [26] - [29]; appeal ts 18 - 19.
Therefore, the appellants submit, properly characterised, the false denials of having been to the Unit only went to their credibility and should not have been left to the jury as Edwards lies.[42]
[42] Appellants' submissions [33] - [35].

Legal principles - lies as admissions

The principles concerning lies by an accused have been outlined in many cases. The principles were recently reviewed in Evans v The State of Western Australia[43] and Leung v The State of Western Australia.[44] For present purposes, the following outline is sufficient.
[43] Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [63] - [84] and cases there cited.
[44] Leung v The State of Western Australia [2020] WASCA 81 [38] - [50], [56], [64], [74] - [75].
A lie by an accused, whether in court in giving evidence on oath or out of court in the course of a police interview, can be taken into account by a jury in assessing the credibility of the accused's evidence and of what is said in the course of a police interview.
Lies by an accused are also capable of being admissible as an implied admission against interest; in other words, that the accused told the lies because of a realisation of guilt and a fear of the truth.
In order to be admissible as an implied admission, the lie must relate to a material issue; it must be concerned with a circumstance or event connected with the offence. The lie need not reveal knowledge of the whole of the offence. It is sufficient if it reveals knowledge of some aspect of it, including some circumstance or event connected with it.[45]
[45] Edwards v The Queen (1993) 178 CLR 193, 209 ‑ 211.
Thus, evidence of a lie may be used, together with other circumstantial evidence, to support an inference as to a material fact.
If the lies are incapable of being probative of guilt as an implied admission, the judge should so instruct the jury. Otherwise, it is for the jury to decide, on the basis of the evidence as a whole, whether the post‑offence conduct of an accused is related to the charged offence and what inference is to be drawn from it.[46]
[46] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [73]; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [296] and cases there cited; Evans v The State of Western Australia [83]; Leung v The State of Western Australia [43], [77].

Disposition

For the reasons that follow, the ground of appeal and the appellants' submissions in support of it are wholly without merit.

The appellants' principal submissions, as summarised at [110] ‑ [113] above, are founded, as counsel for the appellant accepted in his oral submissions, on a separate analysis of the appellants' lies by reference to the two aspects identified in [110]. In our view, that analysis is artificial and ill‑founded. The lies relied on by the State, and identified by the trial judge, were the appellants' universally expressed statements that they had never been to the Unit. There is no justification for characterising those lies as having two distinct aspects and then separately analysing whether, in each aspect, the lie involved an implied admission.
Moreover, the appellants' analysis of each aspect proceeds by reference to that aspect in isolation from the substance of the lie as alleged by the State. There is no warrant for so analysing the statements.
The logic of the State's reliance on the appellants' (respective) lies is along the following lines.
The element of identity was the central issue in the trial. Thus, the State was required to prove that each appellant had been present at the Unit when the offending occurred. The presence of the DNA of each appellant in the blood found at the Unit demonstrated that he had been present there on some occasion. It was part of the State's case that the appellants had not been at the Unit on any occasion apart from when the offences were committed. Thus, whether each appellant had been at the Unit on any other occasion was a material fact because, if it were proved that he had not, that fact in combination with the DNA evidence pointed powerfully to their guilt of the offences.
Each appellant's statement to the police that he had never been to the Unit was false, as demonstrated by the presence of his DNA in the blood found at the Unit. Further, in Mr Creusot's evidence he admitted that he had been to the Unit. On the State's case, the appellants lied because they knew that the truth would reveal their guilt. Logically, that was so in that having been told by the interviewing officer what the police were investigating, each appellant denied having been at the Unit because he knew that the only time he had been present at the Unit was the occasion on which the offending occurred. Thus, the lies told by each appellant supported an inference as to a fact material to the State's case, namely that each appellant had not been at the Unit on any occasion prior to the commission of the offence.
For these reasons there is no merit in the submissions in [110] - [113] above.
Applying the principles in [117] - [121], in particular [119], for the reasons in [126] - [127] there is no merit in the appellants' submissions summarised in [114]. The fact that the interviewing police officers informed the appellants of the offending before the lies were told does not thereby preclude the appellants' lies from being probative of guilt in the manner explained at [126] - [127].
We would refuse leave to appeal and dismiss the appeal against conviction.
We turn to the appeals against sentence.

Appeals against sentence: the facts of the offending

The trial judge's findings as to the facts of the offending are not challenged on appeal. They may be summarised as follows.[47]
[47] ts 361 - 364.
At 2.15 pm on 18 November 2019, the complainant heard someone 'smashing' at the rear door of the Unit. After calling out and arming himself with a torch and a can of pepper spray, the complainant discovered that the bathroom window, near the back door, had been smashed and two men - the appellants - were attempting to get in. One of the men was armed with a gun.
Both appellants were wearing hoodies, worn in such a way that the complainant could only see the area around their eyes.
The complainant was ordered, at gunpoint, to return to his bedroom and sit on his bed while the appellants searched the house for money. He was naked, and his requests to clothe himself were refused.
The two appellants took turns searching the Unit for money, while the other held the gun and demanded money. The complainant was repeatedly asked to identify the location of his money. He denied having any.
After failing to locate any money, one or both of the appellants struck the complainant on his shoulder and left leg.
The complainant then identified a small sum of money in a bedside table, which the appellants took. Unsatisfied, and in an effort to extract information from the complainant, one of the appellants fired the gun into a wardrobe near where the complainant was sitting.
Before leaving through the back door, one of the appellants threatened to kill the complainant if he went to the police.
The appellants were later identified by traces of blood found on the couch, the bathroom wall adjacent to the window, on the 'shopper's door' to the garage, and on the edge of the wardrobe door in the master bedroom. The first two traces of blood matched Mr Howell's DNA, and the latter two matched Mr Creusot.
Both appellants took part in video interviews. Mr Howell was interviewed on 26 December 2019. In that interview, he 'denied being at the house' and said that he had 'never been to that unit or to the unit complex' and that he 'did not know [the complainant]'.
Mr Creusot was interviewed twice on 11 December 2019. He also denied ever having been to the Unit.

Personal circumstances: Mr Creusot

Mr Creusot was 56 years old at the time of sentencing. He was primarily raised by his grandmother after his parents separated while he was young. He has irregular contact with his father, but has an ongoing and supportive relationship with his mother and sisters.
Mr Creusot has been in a relationship for 16 years and has ongoing contact with his partner. He has two children. While Mr Creusot denied any domestic violence, the trial judge noted that he was the subject of a lifetime violence restraining order relating to his former partner and had been sentenced for a breach of a violence restraining order.[48]
[48] ts 370.
Mr Creusot completed year 10, following which he worked as a truck driver for 25 years until he lost his driver's licence. The trial judge observed that this employment offered Mr Creusot stability and that he was able to go for sustained periods without offending.[49]
[49] ts 369.
Mr Creusot has an entrenched history of alcohol, cannabis and methylamphetamine use. He moved from Albany to Perth in part to attempt to break the cycle of drug and alcohol use. That attempt was partially successful, but Mr Creusot continued to use methylamphetamine and cannabis, despite the cannabis causing paranoia and aural hallucinations.[50] He has indicated a willingness to engage in substance abuse counselling and had completed some courses while in custody.
[50] ts 369.
The author of the pre‑sentence report indicated that Mr Creusot presented with cognitive challenges. The trial judge observed that it would be wise for him to engage with mental health services. Her Honour noted that there was no suggestion that any such matters played any role in the offending.
Mr Creusot has what the trial judge fairly described as a substantial criminal record, comprising a significant number of traffic‑related offences, some dishonesty offences and some drug‑related offences.[51]
[51] ts 368.
The trial judge observed that this record meant that personal deterrence was a matter to be considered in determining the appropriate sentence.
The judge also observed that Mr Creusot's offending was aggravated by the fact that, only a month before he offended, he had been placed on a conditionally suspended imprisonment order.[52]
[52] ts 365.
The judge dealt with Mr Creusot in relation to the offences the subject of the conditionally suspended imprisonment order, namely breach of bail, providing a false personal particular to police and supply of methylamphetamine.

Personal circumstances: Mr Howell

Mr Howell was 40 years old at the time of sentencing. He is one of four children. His father was not particularly present during childhood, and passed away in March 2021 from cancer. The appellant has a good relationship with his sisters and mother.[53]
[53] ts 365 ‑ 366.
Mr Howell has been in a relationship for 22 years, and has three children aged between eight and 19. Mr Howell has committed acts of domestic violence against his partner, which he blames on his methylamphetamine use.[54]
[54] ts 366.
Mr Howell witnessed violence and substance abuse during his childhood. He attended school until year 7, at which point he began committing offences, which he said was initially to help support his sisters.[55]
[55] ts 366.
The appellant has been using drugs since he was 12 years old, beginning with solvents and cannabis and graduating to methylamphetamine at 15. He is generally able to abstain from drugs while in prison.[56]
[56] ts 366.
Mr Howell has never held a job, although he has undertaken construction courses while in prison, and has expressed an interest in employment in the mining industry.[57]
[57] ts 366.
Mr Howell has what the trial judge aptly described as a substantial criminal record involving offences of violence, breaches of a family violence restraining order, carrying weapons, dishonesty, and drug use. He has seven convictions for armed robberies in company. Her Honour observed that Mr Howell had continued to offend after he had served a total effective sentence of 10 years' imprisonment imposed in 2002 in respect of attempted armed robbery, rendering personal deterrence a significant sentencing consideration.[58]
[58] ts 365 - 366.
The trial judge outlined steps taken by Mr Howell toward rehabilitation both before and after the offending the subject of these charges. However, her Honour observed that, once released, Mr Howell would start using drugs again and offend further.[59]
[59] ts 366 - 367.
The trial judge considered that Mr Howell was a high risk of reoffending in the community if he is unable to abstain from drugs.[60]
[60] ts 367.

Sentencing remarks

The trial judge observed, after outlining the facts of the offending, that the appellants' offending was serious, saying:[61]
The two of you committed a serious home invasion involving the use of a gun and force to gain not just entry but also against [the complainant]. He was held at gunpoint, struck with the torch, threatened, and you even discharged the gun.
[The complainant] was vulnerable because he was home alone. But you ensured he was made to feel more vulnerable by keeping him naked and pointing the gun at him throughout. I consider this to be a very serious example of an offence - of offences of their kind.
[61] ts 365.
Her Honour described the offending as a home invasion involving the use of weapons and actual violence causing physical and psychological trauma to the victim, committed for money.[62]
[62] ts 370.
The judge noted a number of serious aspects of the appellants' offending:[63]
(1)The offending was premeditated, bearing in the mind the use of a disguise and the bringing of the handgun.
(2)The appellants' use of violence in physically assaulting the complainant was gratuitous, given the absence of resistance from the complainant.
(3)The complainant was vulnerable and the appellants were armed.
(4)The use of a gun was particularly serious. Not only was the gun brandished, but it was fired.
(5)While the complainant's physical injuries were not serious, they undoubtedly left a psychological impact.
[63] ts 370 - 371.
The judge described the appellants' offending at being at the high end of seriousness for offences of this kind.[64]
[64] ts 371.
The judge did not consider there was any difference in the individual criminality of the two appellants. They were acting and working together, and each handled the gun. While there was some difference in the personal circumstances of each, including their criminal records, those were not such as to warrant a difference in sentence.
The judge considered that only a term of immediate imprisonment was appropriate, given the seriousness of the offending. There is, and could be, no challenge to that conclusion.
The judge observed that issues of totality arose in Mr Howell's case because he was currently serving a term of imprisonment that would expire some months after the time at which the judge sentenced the appellants.
The judge said that, taking into account the circumstances of the offending, she sentenced each of the appellants to 3 years 4 months' imprisonment on count 1 and 4 years 6 months' imprisonment on count 2.
The judge then observed that, having regard to issues of totality and given Mr Howell's personal circumstances, she would order that the sentences were to be served cumulatively on each other and concurrently with the sentence Mr Howell was already serving. Thus, there was a total effective sentence of 7 years 10 months' imprisonment.
As to Mr Creusot, having regard to the issue of totality and given his personal circumstances, her Honour ordered that the sentences of imprisonment were to be served cumulatively on each other, but concurrently with the sentences imposed by the Magistrates Court the suspension of which had been triggered, so as to require immediate imprisonment.[65]
[65] ts 372.
The judge ordered that each offender be eligible for parole.

Grounds of appeal

Each appellant relies upon two grounds of appeal, which are in the following terms:
(1)The learned Judge in sentencing the appellant on counts 1 and 2 erred in punishing the appellant more than once for the same acts or conduct, contrary to s 11(1) of the SentencingAct 1995, alternatively, which resulted in sentences that were not commensurate with the seriousness of the offences as required by s 6(1) of the Sentencing Act.
Particulars
The appellant was punished twice for:
(a)The assault on the complainant.
(b)The circumstance of aggravation pleaded in each of counts 1 and 2 that he and the co-accused did bodily harm to the complainant.
(c)The circumstance of aggravation pleaded in each of counts 1 and 2 that he and the co-accused were armed with a dangerous weapon, namely a gun.
(2)Further or in the alternative, the learned Judge imposed a total effective sentence which breached the first limb of the totality principle, in that it did not bear a proper relationship to the overall criminality involved in the offences viewed in their entirety, and having regard to all relevant circumstances, including those referable to the appellant personally.
The appellants' submissions in support of their sentence appeal are materially identical.

Ground 1: double punishment?

Appellants' submissions

The appellants submit that their sentence on count 1, while within the customary range of sentences for aggravated home burglary, is properly regarded as a high or firm sentence. As to the armed robbery offence they committed, the appellants accept that the sentence imposed for count 2 was within the usual range for that offence. However, while conceding that there were serious features of the offending, they submit that only about $100 or $200 was stolen.
The appellants submit that 'it is apparent' that they were punished more than once for the same unlawful conduct.
In support of this assertion, the appellants point to the fact that the same circumstance of aggravation, namely the assault of the complainant with the torch, was, on the State's case, the bodily harm comprising a circumstance of aggravation in respect of count 1 and the bodily harm comprising the circumstance of aggravation of count 2. Further on the State's case, that assault, which was an element of count 1, was also part of what constituted the threat of violence constituting one of the elements of count 2.
The appellants submit that 'it follows' that the sentence imposed in respect of both count 1 and count 2 took into account the same circumstance of aggravation and that they were punished more than once for the assault with the torch.
The appellants similarly submit that the pleaded circumstance of aggravation of being armed with a dangerous weapon, namely a gun, was common to both counts 1 and 2 and it may be concluded that the sentences imposed for both offences took into account that aggravating circumstance.
In written submissions, the appellants asserted that in sentencing the appellants more than once in respect of the same conduct, the judge proceeded in a manner contrary to s 11 of the Sentencing Act. However, in oral submissions, the appellants withdrew reliance on s 11 of the Sentencing Act.[66]
[66] Appeal ts 21 - 22. As to s 11, see Kelly v The State of Western Australia [2020] WASCA 29 [29].
The appellants submit that, in punishing the appellants more than once for the same conduct, the judge infringed the rule against double punishment and thereby imposed a sentence that was not commensurate with the seriousness of each of the offences they had committed.[67]
[67] Appeal ts 22.
The appellants submit that, accordingly, either the individual sentences, or the total effective sentence, should be set aside and a lower sentence imposed. Alternatively, the sentences should be made (at least partly) concurrent.[68]

Disposition

[68] Appellants' submissions [29].

For the reasons that follow, in our opinion, ground 1 is without merit.
We accept that there was appreciable overlap between the facts and circumstances of the offending on the two counts with which the appellants were charged.
The assault of the complainant with the torch was an element of count 1. The bodily harm thereby caused was a circumstance of aggravation in respect of both counts. Further, the assault with the torch was, according to the trial judge's direction to the jury, part of what constituted the threat of violence constituting one of the elements of count 2.
This overlap engaged the principle that, when an offender is to be sentenced for multiple offences which contain one or more common legal or factual elements, care must be taken by the sentencing court to avoid punishing the offender twice (or more) for the commission of the common elements.[69]
[69] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [33] - [34], [38].
As this court observed in The State of Western Australia v ADS,[70] no single correct mechanism exists for avoiding double punishment. For example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences.
[70] The State of Western Australia v ADS [2021] WASCA 99 [72]; see also Salkilld v The State of Western Australia [2017] WASCA 168 [81].
Counsel for the appellants properly accepted that a sentencing judge is not obliged to make express reference to the double punishment principle.[71] The absence of an express reference to the principle in a case in which multiple offences have some degree of overlap does not, of itself, constitute or reveal an error.[72]
[71] Appeal ts 24.
[72] See, for example, Herz v The State of Western Australia [2022] WASCA 73 [41].
Although the appellants' oral submissions were not always consistent in this respect, in the end, the thrust of the appellants' submissions in support of ground 1 was that the judge's error in failing to take into account the need to avoid double punishment was to be inferred from the sentencing outcome on the two individual offences and the total effective sentence.[73]
[73] Appeal ts 24, 29, 39.
In our opinion, that submission is without substance. The sentences imposed by her Honour, in particular in respect of count 2, point firmly to the conclusion that the judge had regard to the need to avoid double punishment.[74]
[74] The State of Western Australia v O'Driscoll [2022] WASCA 65 [43] ‑ [44].
As this court noted in The State of Western Australia v O'Driscoll,[75] the sentences customarily imposed for armed robbery have recently been discussed by this court in Hayward v The State of Western Australia[76] and in Hiemstra.[77]
[75] O'Driscoll [43].
[76] Hayward v The State of Western Australia [2020] WASCA 57 [35] ‑ [44].
[77] Hiemstra v The State of Western Australia [2021] WASCA 96 [133] - [134].

In Hayward, this court acknowledged that, in numerous cases since 2005, it has been stated that the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, was 4 to 6 years' imprisonment. In Hiemstra, it was said that it is not unusual for a court to impose a sentence of 5 to 6 years' imprisonment after trial for a single count of armed robbery. Of course, a sentence outside that range will not necessarily be manifestly inadequate (or manifestly excessive). The range of sentences imposed in the past serves as a yardstick, but does not define the possible range of sentences to be imposed in a particular case.
In the present case, count 2 was, as the trial judge observed, a very serious example of aggravated armed robbery. The appellants disguised themselves and brought with them a loaded handgun. They used the gun in demanding money from the complainant. Further, one of the appellants deliberately discharged the gun.
These aggravating features of the appellants' offending distinguished it from the vast majority of aggravated armed robbery offences, underlining the seriousness of the appellants' offending.
It is proper to infer, as the trial judge did, that the complainant was adversely psychologically affected by his experience at the hands of the appellants.
The appellants had little in the way of mitigation. They were convicted after trial and did not have the mitigatory benefit of youth or good character. To the contrary, their respective criminal records emphasised personal deterrence as a consideration in the sentencing process.
In the circumstances, if count 2 were viewed in isolation from count 1, the sentence imposed by the trial judge, namely 4 years 6 months' imprisonment, would be so low as to invite the question - why is the sentence so low? The answer is readily apparent. Thus, far from revealing the trial judge's failure to have regard to the need to avoid double punishment, the individual sentences imposed on count 2 positively point to the conclusion that her Honour properly did so.
At times, counsel for the appellants contended that the terms of the sentencing remarks, in addition to the sentencing outcome, sustained the inference that the trial judge erred in the manner asserted by ground 1. As already noted, ultimately counsel resiled from any such contention. In any event, there is no merit in it. Her Honour's express references to totality in the context of the sentence already being served by Mr Howell, and the conditional suspended imprisonment imposed by the Magistrates Court triggered by Mr Creusot's reoffending, do not overcome the inference from the otherwise markedly low sentence imposed in respect of count 2 that her Honour properly had regard to the need to avoid double punishment.
For these reasons, we would refuse leave to appeal in respect of ground 1.

Ground 2: totality

Appellants' submissions

The appellants submit that their overall sentence of 7 years 10 months' imprisonment breached the first limb of the totality principle. They submit that the trial judge only expressly addressed totality in the context of other sentences of imprisonment being served or to be served.
They submit that their total effective sentence did not bear a proper relationship to the overall criminality involved in the offending. They refer in that regard to The State of Western Australia v Wilkins,[78] while acknowledging that the offending in the present case was more serious than that in Wilkins.
[78] The State of Western Australia v Wilkins [2020] WASCA 149.
The appellants submit that, given the overlap between counts 1 and 2, the assault in respect of count 1 should properly have been considered as part of the aggravated armed robbery. Further, the offending the subject of the two counts constituted a single course of conduct. Consequently, the proper conclusion, the appellants submit, is that the total effective sentence is excessive.

Disposition

The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known. They have been stated many times in this court, and in other courts.[79]
[79] See, for example, Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26] and Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences imposed in other cases does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of possible sentences.
The two offences of which the appellants were convicted were, by their nature, serious offences as reflected in their respective maximum sentences. The maximum sentence for count 1 is 20 years' imprisonment. The maximum sentence for count 2 is life imprisonment.
As to the appellants' aggravated home burglary offence constituted by count 1, this court observed in Brindley v The State of Western Australia:[80]
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal.
[80] Brindley v The State of Western Australia [2019] WASCA 153 [39].
The appellants' offence by count 1 was in the more serious category of a violent home invasion.
Sentences imposed for offences of aggravated home burglary were reviewed in Wragg v The State of Western Australia.[81] An offence in this more serious category commonly results in a term of immediate imprisonment in the range of 2 to 4 1/2 years' imprisonment.[82]
[81] Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [56] ‑ [61].
[82] Wragg [56] - [62]; The State of Western Australia v Peacock [2013] WASCA 248 [32]; Kelly [44].
As this court observed in The State of Western Australia v Quartermaine,[83] in considering the appropriate sentence for an aggravated home burglary offence, it is important to bear in mind the wide variety of conduct that may constitute the offence. Also, the classification of offences in Brindley (see [207] above) is general in nature and must, in a particular case, give way to an assessment of what the offender has actually done.
[83] The State of Western Australia v Quartermaine [2021] WASCA 145 [66].
In light of the prevalence of home burglaries, the need to firm up sentences for aggravated home burglary has been emphasised in a number of decisions in this court.[84]
[84] See Quartermaine [63] ‑ [64] and the cases there referred to.
As the trial judge recognised, both of the offences committed by the appellants were serious examples of offences of their kind.
As to the seriousness of the home burglary offence, the appellants smashed their way into the complainant's house. As the trial judge said, the complainant was held at gunpoint, struck with the torch and threatened. The affront to the complainant's dignity that is inherent in the burglary of his home was aggravated by the appellants' refusal, while brandishing the gun, to allow the complainant to clothe himself.
We refer to what we have said above at [191] ‑ [193] as to the seriousness of the appellants' offence of aggravated armed robbery.
While, as already noted, there was some overlap in the two offences, both offences had substantial elements and circumstances which did not overlap with the other.
The assault the subject of count 1 occurred while the appellant was in another person's place without their consent. That the offence of assault so occurred is at the heart of the criminality of the offence of burglary. As the court explained in Kelly,[85] the seriousness of the offence of burglary lies in the invasion of another person's property, without their consent, coupled with either an attempt to commit an offence or the commission of an offence. That is what underlies the maximum penalty of 20 years' imprisonment. Thus, the feature of count 1 that distinguished it from count 2 is itself indicative of serious criminality.
[85] Kelly [39] - [40].
Count 2 involved, as elements distinct from count 1, the stealing of money from the complainant and various other acts or threats of violence, namely the pointing of the gun at the complainant, the firing of the gun into the wardrobe after having demanded money and the threat to return to kill the complainant if he called the police.
As already noted, both appellants had very limited mitigation.
The circumstances and features of the appellants' offending means that there are no direct comparators. The absence of directly comparable cases does not preclude the court from deciding that a total effective sentence does or does not infringe the first limb of the totality principle.[86]
[86] See, for example, Moore v The State of Western Australia [2019] WASCA 35 [51].
This court's decision in Wilkins provides little assistance as a comparator. Apart from the absence of use and discharge of a gun in Wilkins, that case involved offences the highest maximum sentence for which was 20 years' imprisonment. Moreover, unlike the appellants, the offender in Wilkins had very substantial mitigation: his plea of guilty (for which he received a 25% discount); his traumatic experiences as a child and as an adult; and remorse.[87]
[87] Wilkins [72].
Insofar as the appellants submit that their offending was a single course of conduct, as their counsel acknowledges, the one transaction rule is no more than a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close in time or in a spree is proportionate to the offender's overall criminality.[88] The real question is whether the total sentence properly reflects the overall criminality of the appellants' offending, having regard to all its circumstances and the appellants' personal circumstances.[89]
[88] Lesay v The State of Western Australia [2011] WASCA 154 [21]; Butler v The State of Western Australia [2012] WASCA 249 [53]; VXM v The State of Western Australia [2022] WASCA 74 [64] - [65].
[89] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28]; Salkilld v The State of Western Australia [84]; VXM [65].
Having regard to all these matters, it cannot reasonably be argued that the total effective sentence of 7 years 10 months' imprisonment infringed the first limb of the totality principle. That total sentence bears a proper relationship to the overall criminality of each of the appellants' offending having regard to all facts and circumstances, including those referable to each appellant personally, all relevant sentencing factors and the total effective sentence imposed in cases with at least some similar features.
We would refuse leave to appeal in respect of ground 2.

Conclusion

For the above reasons, we would make orders as follows.
In each of the conviction appeals:
(1)Leave to appeal on ground 1 is refused.
(2)The appeal is dismissed.
In each of the sentence appeals:
(1)Leave to appeal on each of grounds 1 and 2 is refused.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BM
Associate to the Honourable Justice Beech
6 SEPTEMBER 2022