Drage v The State of Western Australia

[2021] WASCA 6

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DRAGE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 6

CORAM:   BUSS P

VAUGHAN JA

HEARD:   23 DECEMBER 2020

DELIVERED          :   12 JANUARY 2021

FILE NO/S:   CACR 135 of 2020

BETWEEN:   CHRISTOPHER BRIAN DRAGE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   TROY DCJ

File Number            :   IND 789 of 2020

Catchwords:

Criminal law - Appeal against sentence - Aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA) - Aggravated assault causing bodily harm contrary to s 317(1)(a) of the Criminal Code (WA) - Whether sentence on count of aggravated assault causing bodily harm is manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 317(1)(a), s 401(2)(a)

Sentencing Act 1995 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Bropho v Hall [2015] WASC 50

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Duncan v The State of Western Australia [2018] WASCA 154

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

Gillespie v The State of Western Australia [2016] WASCA 216

Hansen v The State of Western Australia [2019] WASCA 170

Jackamarra v The State of Western Australia [2019] WASCA 150

Kabambi v The State of Western Australia [2019] WASCA 44

McCombe v The State of Western Australia [2016] WASCA 227

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

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

The State of Western Australia v WTG [2016] WASCA 175

Tunney v The State of Western Australia [2013] WASCA 286

JUDGMENT OF THE COURT:

Overview

1. This is an application for leave to appeal against sentence.

2. The appellant was convicted, on his pleas of guilty, of two offences:

   1.Aggravated assault causing bodily harm while in the place of another person without her consent being an aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA) (Code) (count 1) - an offence committed on 9 October 2017.

   2.Aggravated assault causing bodily harm contrary to s 317(1)(a) of the Code (count 2) - offending committed over 14 to 15 July 2019.

3. Both offences involved the appellant's then de facto partner, LM, with whom the appellant was in a family and domestic relationship.

4. The maximum penalty for count 1 is 20 years' imprisonment.  The maximum penalty for count 2 is 7 years' imprisonment.  On 30 July 2020 the sentencing judge (Troy DCJ) imposed two sentences of immediate imprisonment of 3 years and 9 months' imprisonment in relation to each of count 1 and count 2.

5. The sentencing judge determined that the 3 years and 9 months' immediate imprisonment on count 2 should be cumulative on the 3 years and 9 months' immediate imprisonment on count 1.  The result was that his Honour imposed a total effective sentence of 7 years and 6 months' immediate imprisonment.  The sentence was backdated to 6 June 2019 to take account of time spent on remand.  The sentencing judge ordered that the appellant be eligible for parole.

6. There is no complaint as to the sentence imposed in relation to count 1.  The proposed grounds allege that the sentencing judge erred in law:

   1.First, by sentencing the appellant to a total effective sentence that was disproportionate to the appellant's offending, ie it is alleged that the total effective sentence infringed the first limb of the totality principle (ground 1).

   2.Second, by imposing a sentence in relation to count 2 that was manifestly excessive (ground 2).

7. For the reasons that follow the proposed grounds of appeal have no reasonable prospect of succeeding.  Consequently, we would refuse leave to appeal on each ground and dismiss the appeal.

The circumstances of the offending

1. There is no challenge to the sentencing judge's factual findings at the time of passing sentence.  The sentencing judge's observations included findings as to the circumstances of the offences committed by the appellant.  The following summary is extracted from the sentencing judge's remarks, as is the summary as to the appellant's personal circumstances.

2. The appellant was in a de facto relationship with LM from about mid‑2016.  LM had adult children and one younger child, a son.  That son was 10 years old at the time of the events the subject of count 1.  The relationship between the appellant and LM was troubled.  Both consumed alcohol excessively throughout the relationship and both used methylamphetamine from time to time.  There were regular arguments, some of which became physical, and some of which resulted in the attendance of police officers to the home in which they lived.

3. Count 1 concerned events on 9 October 2017.

4. The appellant and LM had been drinking at LM's home in a Perth suburb.  The appellant became verbally abusive.  He then struck LM to the face.  LM's son telephoned the police who attended the premises at 7.45 pm.  The sentencing judge found that the appellant was under the influence of alcohol.

5. The appellant was served with a '24-hour police order' requiring that he remain away from the premises for 24 hours.  The appellant left the premises at approximately 8.25 pm.  However, at about 8.45 pm the same night the appellant returned, gaining entry to the premises by breaking a glass sliding door.  LM telephoned the police.  Before the police arrived the appellant went up to the second level of the townhouse where LM's bedroom was located.  LM and her 10‑year‑old son were braced against the bedroom door attempting to prevent the appellant entering the room.  The appellant overpowered them.  The appellant dragged LM out of the room, pushed her to the ground, and kicked her about three times.  The appellant also verbally abused LM's 10‑year‑old son.

6. LM was conveyed to hospital.  She had a bloody nose, an injured left forearm which was bruised, swollen and bleeding, and a laceration to her left leg above the knee.

7. There was a police chase but the appellant evaded arrest.  He was not arrested until 11 February 2019.  The appellant was then remanded in custody until granted bail on 5 July 2019.  LM was referred to as the appellant's 'sponsor' for the purpose of the bail application.  One of the bail conditions was that the appellant was not to behave in an intimidatory, offensive or emotionally abusive manner towards LM.

8. Count 2 concerned events on 14 and 15 July 2019, ie only nine days after the appellant was released on bail subject to the various home detention conditions.

9. The appellant had been using methylamphetamine.  He attacked LM on and off over two days.  The appellant punched LM in the face numerous times causing significant swelling, bruising and soft tissue injuries to her eyelids.  The appellant also punched and kicked LM on several parts of her body, including her vagina, causing swelling, bruising and tenderness.  The sentencing judge found that the appellant ripped LM's hair and made her walk around like a dog.  The appellant also used a weapon, a small knife, to cause a puncture wound to LM's inner thigh.

10. LM said that the appellant had flogged her and blamed her for the death of his son.  She was unable to leave the house.  The sentencing judge found that:

    1.The appellant said to LM words to the effect: 'You know this is your last night'.

    2.The appellant made LM say: 'I deserve this … This is what I get for hurting you'.

11. The sentencing judge characterised the offending as 'a protracted and cowardly attack of quite unbelievable savagery' (ts 32).

12. At the instigation of LM's adult daughter, officers of the Western Australian police force attended the premises to conduct a welfare check on LM.  The appellant behaved abusively and aggressively towards the police officers.  He then said that LM had gone to the shops and was not home.  On entry the police officers observed that there was a large sword on a couch and an axe on a table.  The police officers also heard LM scream and cry for help.  LM was found hiding under a bed in the upstairs bedroom.  While the police officers were attending to LM, the appellant escaped the premises by smashing a second‑storey window and running from the scene.  The appellant was later apprehended.  He denied assaulting LM or causing her any injuries.

13. LM's face was swollen and covered in blood.  She was conveyed to hospital for treatment.

The appellant's personal circumstances

1. The appellant was 45 years old at the time of sentencing.  He was 42 at the time of the events the subject of count 1 and 44 at the time of the events of count 2.  The appellant had a deprived background in the Bugmy sense.[1]  Regrettably, during his childhood the appellant was regularly assaulted by an alcoholic stepfather.  The appellant left home at the age of 11 and began using cannabis at the age of 12.  He lived on the streets for much of the time between the ages of 14 and 16.  The appellant began using methylamphetamine at the age of 16.

   [1] Referring to Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

2. An earlier 12‑year relationship resulted in the appellant having four children.  That relationship ended because of the appellant's domestic violence towards his former partner and the appellant's substance abuse.

3. The appellant had a long prior criminal history including terms of immediate imprisonment.  He was first sentenced to detention at the age of 16 in 1991.  However, the appellant had not been convicted of any offence involving violence since June 2004.  The appellant ceased using methylamphetamine in 2007 and from March 2010 there was a gap in his offending.  It appears, however, that by 2018 the appellant had recommenced using methylamphetamine, although the sentencing judge highly doubted that the appellant had completely stopped consuming methylamphetamine between 2007 and 2018.  The appellant suffered the tragic loss of his teenage son in September 2018 which exacerbated his substance abuse thereafter.

4. The appellant had worked sporadically but never for more than 10 months or so at a time.

5. The sentencing judge referred to the appellant having a history of mental health problems including depression and anxiety.  He had been prescribed antidepressant medication.

The sentencing disposition

1. The sentencing judge recounted the appellant's personal circumstances (ts 23 - 27) and the circumstances of the offending (ts 27 - 32).  His Honour said that each attack, particularly the assault the subject of count 2, was prolonged, sustained and repeated.  Neither was a one‑off aberration (ts 34).

2. The sentencing judge accepted that the appellant was entitled to a discount for his guilty pleas, although neither plea was at the first available opportunity.  His Honour allowed a discount of 17.5% in relation to count 1 and 20% in relation to count 2 (ts 32).  Otherwise the only mitigating matter was the appellant's deprived background, a matter that the sentencing judge referred to at length (ts 23 ‑ 26, 32, 34).  The sentencing judge found that the appellant's life had been blighted and he had diminished moral culpability for his offending (ts 25 ‑ 26).  At the same time, however, the appellant's behaviour made him a danger, particularly to any woman he formed a relationship with (ts 26).  There was no remorse and no insight into the offending (ts 32).  While the appellant had a history of depression, the sentencing judge observed that the appellant chose not to take his antidepressant medication (ts 32) and there was nothing to suggest that the appellant's mental illness was causative of his offending (ts 33).

3. There was found to be an obvious need for general and personal deterrence notwithstanding the appellant's diminished moral culpability by reason of his 'extremely dysfunctional background' (ts 34).

4. The sentencing judge referred to the relevant sentencing principles in orthodox terms (ts 25 ‑ 26, 28 ‑ 29, 32 ‑ 35).  His Honour identified the following aggravating factors of the appellant's offending:

   1.As to count 1: the offending occurred in the presence of LM's 10‑year‑old son (ts 27, 34).

   2.As to count 2: the offending occurred while the appellant was on bail - thereby demonstrating an entrenched attitude of disobedience to the law (ts 32, 33).

5. The sentencing judge also referred to the victim, LM, as being 'especially vulnerable' (ts 34) - a vulnerability that arose from being in a family and domestic relationship with the appellant.

6. In relation to count 2, the sentencing judge considered whether this was not merely serious or towards the higher end of the scale of offences of its type.  His Honour actively considered whether it was an instance of aggravated assault causing bodily harm that was so grave that it warranted the imposition of the maximum statutory penalty.  However, on consideration, the sentencing judge decided that it was not a case within the 'worst type' category.  His Honour reached that conclusion having regard to the extent of the injuries, the lack of repeated incidences of past violent criminality and the considerations arising from the appellant's deprived background (ts 34).

7. The sentencing judge characterised the offending the subject of count 2 as being towards the higher end of the scale of offences giving rise to bodily harm (ts 34).

8. His Honour imposed individual sentences of 3 years and 9 months' immediate imprisonment on each count (ts 35).  In terms of totality the sentencing judge referred to the relevant sentencing principles (ts 34 ‑ 35) and concluded that accumulation of both sentences was required to mark the obvious escalation in the appellant's offending and to reflect the sentencing considerations that had been referred to (ts 35).  His Honour was satisfied that the total effective sentence of 7 years and 6 months' immediate imprisonment was not crushing (ts 35).

The proposed grounds of appeal and the appellant's contentions in support of leave to appeal

1. The proposed grounds of appeal read:

   1.The learned sentencing Judge erred in sentencing the appellant to a total effective sentence that was disproportionate to the appellant's offending conduct.

   2.The learned sentencing Judge erred in imposing a sentence in relation to count 2 that was manifestly excessive.

2. The appellant's written submissions filed as part of his appellant's case identified the sentencing disposition (pars 1 ‑ 4), the relevant principles (par 5) and relevant portions of the sentencing remarks (pars 8 ‑ 14).  After identifying the two grounds (pars 15 ‑ 16) the appellant stated, correctly, that a sentence of immediate imprisonment was the only appropriate sentencing disposition in relation to the offending (par 17).  The appellant said that no express error of fact or law was alleged (par 7).  The appellant also accepted that the sentence imposed on count 1, on its own, could not be described as manifestly excessive (par 18).

3. The appellant submitted, however, that the sentence of 3 years and 9 months' imprisonment on count 2, if not manifestly excessive, was at the very least severe, and, so far as it was ordered to be served wholly cumulatively, resulted in the imposition of a sentence that was disproportionate to the appellant's overall offending (par 18).

4. After stating, correctly, that there was no tariff for the offence of assault causing bodily harm, aggravated or otherwise (pars 19 ‑ 20), the appellant referred to three authorities in support of both grounds of appeal: Duncan v The State of Western Australia;[2] Gillespie v The State of Western Australia;[3] and The State of Western Australia v WTG.[4]

   [2] Duncan v The State of Western Australia [2018] WASCA 154.

   [3] Gillespie v The State of Western Australia [2016] WASCA 216.

   [4] The State of Western Australia v WTG [2016] WASCA 175.

5. The appellant submitted that the offending the subject of count 2 had a number of serious features.  It was nevertheless submitted that the sentence of 3 years and 9 months' imprisonment was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle (pars 69 ‑ 70).

Disposition

Relevant legal principles

1. The principles that apply on an appeal against sentence contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle, are so well established that they need not now be repeated.[5]  Ultimately, in both instances, an appellate court must imply error because the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.

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

2. There is no tariff for the offence of aggravated assault causing bodily harm given the very wide variety of circumstances that may be involved - both in relation to the nature of the offence and the circumstances of aggravation.[6]

   [6] Tunney v The State of Western Australia [2013] WASCA 286 [29]; Duncan v The State of Western Australia [52].

3. The circumstance that an aggravated assault occurred in a domestic setting is a significant aggravating factor.  As was said by Mitchell J (as his Honour then was) in Bropho v Hall:

   An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender.  The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation.  As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence.  Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.[7]

   [7] Bropho v Hall [2015] WASC 50 [16] (cited with approval in Gillespie v The State of Western Australia [48], McCombe v The State of Western Australia [2016] WASCA 227 [33] and Duncan v The State of Western Australia [40]).

4. The pervasive incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them mean that general deterrence is an important sentencing consideration in offences of this kind.[8]

Ground 2: Sentence of 3 years and 9 months' imprisonment on count 2 not manifestly excessive

[8] Duncan v The State of Western Australia [40].

1. It is convenient to first address proposed ground 2 and the appellant's contention that the sentence of 3 years and 9 months' imprisonment in relation to count 2 was manifestly excessive.

2. The offence the subject of count 1 - an aggravated home burglary under s 401(2)(a) of the Code - carries a maximum penalty of 20 years' imprisonment. By contrast a common assault committed in circumstances of aggravation carries a maximum penalty of 3 years' imprisonment and a fine of $36,000 (Code s 313(1)) whereas an assault causing bodily harm in the absence of circumstances of aggravation has a maximum penalty of 5 years' imprisonment (Code s 317(1)(b)). The offence the subject of count 2 - an offence of assault causing bodily harm committed in circumstances of aggravation contrary to s 317(1)(a) of the Code - carries a maximum penalty of 7 years' imprisonment.

1. It is, however, incorrect in principle to simply focus on the respective maximum penalties for the offences the subject of counts 1 and 2 (20 years' imprisonment and 7 years' imprisonment respectively) and to then assert that there was an implied error in the sentencing outcome so far as the same individual sentence was imposed for each offence notwithstanding the different maximum penalties that are prescribed for the two offences.

2. The offences the subject of counts 1 and 2 had different factual elements in addition to different maximum penalties.  Comparable cases for the purposes of an allegation of manifest excess are comparable cases in relation to offences with comparable factual elements and comparable maximum penalties.  The offences the subject of counts 1 and 2 are not comparable in that sense.

3. The offending the subject of count 2 was very serious.  First, the offending was protracted and sustained over a considerable period of time, was violent, resulted in serious injuries and was particularly degrading and humiliating of LM.  Second, the offending involved a weapon and resulted in an open wound to LM's person.  Third, the offending occurred while the appellant was on bail for the offending the subject of count 1.

4. The commission of an offence while on some form of conditional release from custody is an aggravating factor, particularly where the offence is of a similar nature to the offending or alleged offending that preceded the offender's conditional release.  It demonstrates that the offender has disregard for the law and is prepared to offend despite him or her having been granted liberty on condition of being on good behaviour.  It displays contempt for the law and enhances the need for personal deterrence.[9]

   [9] QJS v The State of Western Australia [2015] WASCA 9 [35] ‑ [36]; Jackamarra v The State of Western Australia [2019] WASCA 150 [57] ‑ [58].

5. In terms of the submissions made by the appellant, the authorities referred to by the appellant are either of little assistance or, in the case of Duncan v The State of Western Australia, do not support his contention that the sentence of 3 years and 9 months' immediate imprisonment imposed in relation to count 2 is manifestly excessive.

6. In The State of Western Australia v WTG a State appeal was allowed and the offender was resentenced to a total effective sentence of 5 years and 6 months' immediate imprisonment.  However, the most significant individual sentence (a term of 4 years and 6 months' immediate imprisonment) was in relation to an offence of aggravated grievous bodily harm rather than the present offence of aggravated assault causing bodily harm.  Gillespie v The State of Western Australia involved offending that included two counts of aggravated assault causing bodily harm in a domestic violence context.  However, the appeal against sentence to this court was argued and dealt with on the basis of totality rather than manifest excess.  This authority is of no assistance in considering proposed ground 2.

7. Duncan v The State of Western Australia was an offence of assault causing bodily harm rather than the present offence of aggravated assault causing bodily harm.  Having regard to the lower maximum sentence that applied to the offence in Duncan (5 years' imprisonment) the sentence of 3 years' imprisonment imposed in Duncan is broadly comparable and not inconsistent with the 3 years and 9 months' imprisonment imposed on the appellant.  In expressing that conclusion, we have also taken into account the appellant's plea of guilty (Duncan involved conviction after trial), the aggravating fact that in the present case the appellant was on bail for the offending the subject of count 1 and the broadly equivalent nature of the seriousness of the assaults that occurred in both Duncan and the present case (although different in terms of physical acts).

8. Duncan v The State of Western Australia itself notes the significance of the circumstance that an offence is one of aggravated assault causing bodily harm (rather than an unaggravated assault causing bodily harm) in which the existence of a domestic relationship is the aggravating circumstance (Duncan being a case of the latter kind):

   [T]he existence of the domestic relationship between offender and victim is usually pleaded as an aggravating circumstance, so that the higher maximum penalty of 7 years' imprisonment under s 317(1)(a) of the Criminal Code applies. In reviewing the authorities concerning sentences for aggravated assault occasioning bodily harm, it must be borne in mind that the higher maximum penalty will ordinarily result in a higher sentence being imposed. In other words, all things being equal, the same conduct committed in the context of a domestic or family relationship which is the subject of a charge under s 317(1)(a) would ordinarily be expected to receive a higher penalty than if the same conduct were the subject of a charge under s 317(1)(b), and the domestic relationship was taken into account under s 7(3)(b) of the Sentencing Act 1995 (WA) as an aggravating factor.[10]

   [10] Duncan v The State of Western Australia [53].

9. There are, however, other relatively recent authorities concerning sentences for aggravated assault causing bodily harm contrary to s 317(1)(a) of the Code. They include Tunney v The State of Western Australia[11] and McCombe v The State of Western Australia.[12]  The appellant's offending the subject of count 2 was more serious than the offending in Tunney and, in our view, approached but was not as serious as the grave offending in McCombe.  So too there are other recent authorities concerning sentences for unaggravated assault causing bodily harm contrary to s 317(b) of the Code, many of which are referred to in Duncan v The State of Western Australia.[13]  These authorities, which we have considered, provide an indication of contemporary sentencing standards for the lesser offence of unaggravated assault causing bodily harm.

   [11] In Tunney v The State of Western Australia the offender was in a domestic relationship with the victim.  An argument resulted in physical violence in which the offender kicked the victim in the groin causing her extensive bruising and pain.  There was a 20% discount for an early plea of guilty.  The offender had no relevant prior convictions.  A sentence of 18 months' immediate imprisonment was found not to be manifestly excessive.

   [12] McCombe v The State of Western Australia also involved a domestic relationship.  The offender was convicted of four counts of aggravated assault causing bodily injury.  The most serious involved the offender pouring a kettle of boiling water down his partner's back causing second and third degree burns.  The sentencing judge described the offending as falling in the most serious category of offending of this kind.  There was a 20% discount for an early plea of guilty.  A sentence of 5 years' immediate imprisonment was found to be severe but not manifestly excessive.

   [13] Duncan v The State of Western Australia [47] ‑ [49].

10. The important sentencing considerations in the present case were appropriate punishment and general and personal deterrence.  The appellant's lack of remorse and insight, coupled with the escalation of his violent behaviour toward his partner and his disregard for the law, also engaged the sentencing objective of protection of the community.  In particular, consideration had to be given to the protection of vulnerable women who might become involved in a family and domestic relationship with the appellant.

11. The sentence of 3 years and 9 months' immediate imprisonment was not inconsistent with the standards of sentencing customarily observed in relation to offending of this kind bearing in mind that the appellant's offending was a very serious offence of its type.  In our opinion, it was within the range open to the sentencing judge on a proper exercise of the sentencing discretion taking into account:

    1.The maximum penalty of 7 years' imprisonment.

    2.The facts and circumstances of the offending.  These have already been referred to and need not be repeated.  The sentencing judge was correct, in our opinion, to characterise the aggravated assault causing bodily harm the subject of count 2 as being towards the upper end of the range of seriousness for offences of its type.

    The offending was a very serious example of an offence of its type having regard to:

    (a)its persistence and duration, the multiple assaults to numerous parts of LM's body including her face and vagina, the use of a knife and the injuries inflicted;

    (b)its occurrence in a domestic setting involving both an abuse of trust and a victim who was vulnerable; and

    (c)the degrading and humiliating aspects of the offending.

    In all the circumstances the sentencing judge was correct to describe the offending as a protracted and cowardly attack.

    3.The aggravating factor that the offending occurred while the appellant was on bail.

    4.The appellant's personal circumstances and antecedents.  In this respect, while the appellant's deprived background reduced his moral culpability, there was a countervailing consideration as to the proper protection of the community.  That requirement was manifested by the sentencing judge's findings that the appellant lacked remorse and insight and presented a danger to any woman he formed a relationship with.

    5.The plea of guilty.

    6.The absence of any other significant matters of mitigation.

12. We would not infer error from the sentencing outcome.  In all the circumstances, when proper regard is had to all the relevant sentencing factors as referred to in the preceding two paragraphs and elsewhere in these reasons, the sentence of 3 years and 9 months' imprisonment was not unreasonable or plainly unjust.

13. The appellant's complaint that the sentence of 3 years and 9 months' imprisonment in relation to count 2 was manifestly excessive has no reasonable prospect of success.  To the contrary the sentence as imposed was properly commensurate with the seriousness of the offending taking into account the statutory penalty for the offence, the circumstances of the commission of the offence (including LM's vulnerability), the aggravating factors and the mitigating factors.  Leave to appeal on proposed ground 2 should be refused.

Ground 1: Total effective sentence of 7 years and 6 months' imprisonment does not infringe the totality principle

1. The appellant's submissions, in effect, dealt with proposed grounds 1 and 2 together.  In substance the appellant's contention was that the total effective sentence was excessive and so infringed the first limb of the totality principle.  That contention is not determined by the outcome in relation to proposed ground 2.

2. The practical effect of the totality principle is, ordinarily, to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences.[14]  The severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[15]

   [14] Roffey v The State of Western Australia[2007] WASCA 246 [26].

   [15] Giglia v The State of Western Australia [2010] WASCA 9 [40].

3. We have considered the authorities cited by the appellant, ie Duncan v The State of Western Australia; Gillespie v The State of Western Australia; and The State of Western Australia v WTG.  We have also considered the sentencing outcomes in Tunney v The State of Western Australia; McCombe v The State of Western Australia and Hansen v The State of Western Australia.[16]  The varying outcomes in these cases reflect the different circumstances of the offending - and the different circumstances of the offenders - constituted by violent offences against the person of the kind committed by the appellant.  Our review of the sentencing outcomes in the cases relied on and otherwise referred to does not indicate that the total effective sentence imposed in the present case infringed the first limb of the totality principle.

   [16] Hansen v The State of Western Australia [2019] WASCA 170.

4. In the present case the same victim was the subject of both offences.  That will often be the case with offending that involves domestic violence.  However, the two offences were quite separate in time.  The offending the subject of count 1 occurred on 9 October 2017; the offending the subject of count 2 occurred more than 21 months later on 14 and 15 July 2019.  The circumstances of the offences did not overlap.  The offending the subject of count 2 involved an escalation in the nature and extent of the appellant's violence towards LM, offending that was aggravated insofar as it was committed while the appellant was on bail for the aggravated home burglary offence.

5. Appropriate punishment and general and personal deterrence were important sentencing considerations for both offences.  Otherwise, in considering the application of the totality principle, the following is relevant:

   1.As mentioned, the aggravated home burglary offence in October 2017 was separate and distinct from the offence of aggravated assault causing bodily harm in July 2019.

   2.The October 2017 aggravated home burglary offence was a serious offence of its type.  It involved a violent assault on the appellant's de facto partner, in the presence of LM's 10‑year‑old son when, less than half an hour earlier, the appellant had been issued with a 24‑hour police order.  The offending demonstrated disregard for the law and a preparedness to offend despite the recent intervention of the police to defuse an earlier altercation that night.

   3.The individual sentence for the aggravated home burglary offence was within the appropriate sentencing range.

   4.For the reasons already given the July 2019 aggravated assault causing bodily harm offence was a very serious offence of its type.

   5.The individual sentence for the aggravated assault causing bodily harm offence was within the range of a sound exercise of the sentencing discretion.

6. We are satisfied that it was necessary, in order properly to mark the egregious character of the appellant’s overall offending, for the individual sentences on counts 1 and 2 to be served cumulatively.  Partial concurrency of the individual sentences would not have properly reflected the appellant's overall criminality.

7. The total effective sentence of 7 years and 6 months' immediate imprisonment was not beyond the range open to the sentencing judge in a proper exercise of the sentencing discretion taking into account: (1) the maximum penalties of the two offences; (2) the facts and circumstances of the offending viewed as a whole - including LM's vulnerability and the aggravating factors as identified by the sentencing judge; (3) the total effective sentences imposed in prior cases involving offending with some of the features of the appellant's offending; (4) the place the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; (5) the appellant's personal circumstances and antecedents - including the appellant's deprived background and its effect on his moral culpability and the countervailing importance of protecting the community (in particular, potential domestic partners given that the appellant presented a danger to any woman he formed a relationship with); (6) the pleas of guilty; (7) the absence of other significant matters of mitigation; and (8) all other relevant sentencing factors as discussed elsewhere in these reasons.

8. No proper basis exists for inferring error from the sentencing outcome.

9. For these reasons the appellant's complaint that the total effective sentence of 7 years and 6 months' immediate imprisonment infringed the first limb of the totality principle has no reasonable prospects of success.  To the contrary, the sentence imposed properly reflected the overall criminality involved in the two offences, viewed in their entirety, and having regard to all the circumstances of the case including those referable to the appellant personally.  Leave to appeal on proposed ground 1 should be refused.

Conclusion and orders

1. For these reasons both of the proposed grounds of appeal have no reasonable prospect of succeeding.  The application for leave to appeal should be refused.  As leave to appeal should be refused on both of the proposed grounds, the appeal itself should be dismissed.[17]

   [17] Criminal Appeals Act 2004 (WA) s 27(3).

2. We would order that:

   1.The appellant's application for leave to appeal against the sentences imposed by the District Court of Western Australia on 30 July 2020 in Indictment No 789 of 2020 is dismissed.

   2.The appeal is dismissed.

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

OE
Associate to the Honourable Justice Vaughan

12 JANUARY 2021