Gittos v The State of Western Australia

Gittos was convicted of one count of aggravated armed robbery and one count of aggravated armed assault with intent to rob. The accused threatened the complainant with a shotgun and made threats to kill. Gittos pleaded guilty to these two counts and five other offences which were on a s 32 notice. The total effective term of imprisonment imposed was 5 years. The appeal before the court was whether the sentence imposed by the primary judge infringed the first limb of the totality principle.

The court held that the sentence did not infringe the first limb of the totality principle. The primary judge considered the totality of the offending conduct and the appropriate punishment for the offending conduct as a whole. The court was satisfied that the primary judge did not misdirect himself in principle or make an error of fact that was materially prejudicial to the appellant. The totality principle is not a rigid formula and the court must be cautious not to undermine the role of the primary judge in assessing the totality of offending conduct and the appropriate punishment. The appeal was dismissed.