Gray v Director of Public Prosecutions

[2024] WASC 393

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GRAY -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 393

CORAM:   SEAWARD J

HEARD:   4 SEPTEMBER 2024

DELIVERED          :   25 OCTOBER 2024

FILE NO/S:   SJA 1032 of 2024

BETWEEN:   DALE CHRISTOPHER GRAY

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE STOCKDALE

File Number            :   KH 530-33/22; KH 888/22; KH 2165-70/22; PE 58179-80/22; PE 1416/23; KH 2882-87/23

Catchwords:

Appeal against sentence - Where the appellant had spent time in custody on remand - Whether the sentencing Magistrate took time spent in custody on remand into account - Whether the sentencing Magistrate erred in considering there was no discretion to backdate - Totality principle - Whether there was an implied error in the total effective sentence - Whether the sentence was unreasonable or unjust

Appeal against sentence - Breaches of conditional suspended imprisonment orders and stealing - Where appellant was sentenced to terms of imprisonment - Error of law

Legislation:

Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Criminal Code Act Compilation Act 1913 (WA)

Result:

Leave for an extension of time granted
Leave to appeal on grounds 2, 3 and 4 granted
Appeal allowed on grounds 2 and 3
Appellant resentenced on charges KH 2165/22 ‑ KH 2170/22 and KH 2883/22

Category:    B

Representation:

Counsel:

Appellant	:	Ms E Zillessen
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions for Western Australia

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

Allen v The State of Western Australia [2017] WASCA 203

Billington v Depetro [2018] WASC 171

Corpus v Roseveare [2015] WASC 165

Donovan v The Director of Public Prosecutions [2024] WASC 9

Dragon v State of Western Australia [2008] WASCA 252

Hill v Director of Public Prosecutions (WA) [2023] WASC 437

House v R [1936] HCA 40; (1936) 55 CLR 499

Hume v Jefferd [2018] WASC 272

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

Kelly v The State of Western Australia [2024] WASCA 116

King v The State of Western Australia [2013] WASCA 131

Lowndes v R [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen (2005) 228 CLR 357

Narkle v Hamilton [2008] WASCA 31

Pearce v The Queen (1998) 194 CLR 610

Phelps v Standen [2020] WASC 459

Quigley v The State of Western Australia [2013] WASCA 9

Richardson v Pickett [2008] WASC 203

Sami v Duggan [2011] WASC 304

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Strahan v Brennan [2014] WASC 190

The State of Western Australia v Tawhitapou [2024] WASCA 25

Ugle v The State of Western Australia [2022] WASCA 135

Watson v Oldham [2011] WASC 119

Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

Wimbridge v The State of Western Australia [2009] WASCA 196

Wong v The Queen (2001) 207 CLR 584

SEAWARD J:

Introduction

1. On 11 October 2022, the appellant, Dale Christopher Gray, was sentenced for a total of six offences to which he had pleaded guilty (original offences).  Mr Gray received a conditional suspended imprisonment (CSI) order of 10 months' imprisonment, conditionally suspended for 12 months.

2. On 21 February 2024, Mr Gray was sentenced for a further 16 offences to which he had pleaded guilty (new offences). Six of the new offences were breaches of the CSI order imposed on Mr Gray in October 2022. The remaining 10 offences were committed during the suspension period for the CSI order and the statutory penalty for each included imprisonment. Each of the new offences triggered the requirement to deal with Mr Gray for the original offences the subject of the CSI order in accordance with s 84F of the Sentencing Act 1995 (WA) (Sentencing Act). 

3. The Magistrate ordered that Mr Gray serve the entirety of the conditionally suspended period of imprisonment, being 10 months, and Mr Gray received a total effective sentence of two years' immediate imprisonment with eligibility for parole in relation to all offences. 

4. Mr Gray appeals against this sentence.  Mr Gray commenced his appeal out of time.  The hearing of the application for leave to extend time and the question of leave to appeal were both referred to the hearing of the appeal.

5. For the reasons set out below, I will grant Mr Gray an extension of time within which to appeal and I will grant Mr Gray leave to appeal on grounds 2, 3 and 4.  I will allow the appeal in relation to grounds 2 and 3 only and will resentence Mr Gray in relation to the charges the subject of these grounds of appeal.  I will dismiss ground 4.

Offending behaviour, sentences and time spent in custody

Original charges

1. Charges KH 530/2022 - KH 533/2022 arose out of a single course of offending on 12 April 2022. 

2. The transcript reveals that on 12 April 2022 Mr Gray was at Jewell Lane, Karratha when the victim (who was known to Mr Gray) stopped and spoke to Mr Gray.  Mr Gray said words to the effect of: 'You're going to help me steal that bike off the trailer or you're going to cop a hiding'.  When the victim refused, Mr Gray punched him with a closed fist to the left side of his face rendering the victim unconscious and causing pain, discomfort, swelling, bruising and grazing.  When the victim regained consciousness, Mr Gray had the victim's mobile phone, valued at approximately $1,200, and refused to give it back.  The victim did not give Mr Gray permission to take or keep the mobile phone.  Mr Gray then forced the victim to unwillingly assist him to steal a motorcycle valued at approximately $5,000 from Jewell Lane, and push it to a location in Richardson Way, Bulgarra.  When at this new location, Mr Gray threatened the victim with a shovel and threatened to kill him if the victim did not leave town.  Mr Gray swung the shovel at the victim, but missed and the victim fled to a nearby police station.[1]

   [1] ts 21/02/2024, 12 - 14.

3. Mr Gray was charged with assault occasioning bodily harm; stealing (over $1,000); stealing a motor vehicle (exceeding $1,000); and threatening to unlawfully kill.

4. On 11 October 2022, Mr Gray was sentenced on these charges (plus two charges of breach of bail for failing to appear in accordance with a bail undertaking, being charges KH 888/2022 and KH 1433/2022) to a total effective sentence of a CSI order of 10 months, suspended for 12 months, with supervision and programme requirements.

5. At the time of sentencing for the original offences, Mr Gray had spent two months on remand for those charges.  The Magistrate expressly had regard to this period on remand in sentencing Mr Gray to a CSI order with a period of conditionally suspended imprisonment of 10 months.[2]

New charges

[2] ts 11/10/2022, Sentencing Remarks, 7.

1. The new charges arose out of six separate instances of offending.

2. The first set of offending arose on 7 November 2022 and is comprised of charge KH 2039/2022.  On that day, Mr Gray drove a Holden Commodore on Bayview Road in Nickol when he was not authorised to drive that class of vehicle.  Mr Gray has never held a driver's licence and had previously been the subject of four separate disqualifications for a period of three months imposed by the Karratha Magistrates Court on 11 October 2022.[3]

   [3] ts 21/02/2024, 7.

3. Second, by charges KH 2165/2022 - KH 2170/2022, Mr Gray was charged with six offences of breaching the terms of the CSI order imposed in relation to each of the six original offences.  Mr Gray breached the CSI order by failing to attend a programme on 28 November 2022 as directed.[4]

   [4] ts 21/02/2024, 2 and Statement of Breach Facts.

4. The third set of offending occurred on 30 December 2022 and is the subject of charges PE 58179/2022 and PE 58180/2022.  On that day, Mr Gray was at a unit in Harriet Way in Nickol when he fled from the police on foot.  Shortly after, Mr Gray was located at the rear of the property on a yellow quad bike.  The police spoke with Mr Gray who again fled from the police on foot.  Bolt cutters were located close to the quad bike.  Mr Gray was later located at a different property in Haddon Way in Nickol and a search of his vehicle located approximately 2,000 rounds of live ammunition, being mostly .22 calibre.  Mr Gray participated in an electronic record of interview and stated that he purchased the ammunition for $150 and placed it in the rear of his vehicle.[5]  Mr Gray was charged with trespassing and unlicenced purchase or possession of ammunition.

   [5] ts 21/02/2024, 6 ‑ 7.

5. The fourth set of offending occurred on 3 January 2023 and is the subject of charge PE 1416/2023.  On 5 January 2023, a KTM 350 motorcycle valued at $7,000 was returned to the victim by a witness.  The witness advised that Mr Gray sold the motorcycle to him for $200.  Mr Gray did not have the consent or permission to take the motorcycle.  Mr Gray was arrested on 7 January 2023, and charged with possession of stolen or unlawfully obtained property.[6]

   [6] ts 21/02/2024, 11 ‑ 12.

6. The fifth set of offending occurred on 18 January 2023, and is the subject of charges KH 2883/2023 and KH 2887/2023.  At 6.15 pm on 18 January 2023, Mr Gray went to the front door of a house in Ferguson Street in Nickol.  Mr Gray knocked on the door and the victim shouted at him, 'No, man.  No, man.  Just, no'.  Mr Gray then entered the rear yard and entered the premises through the rear laundry door.  Mr Gray was confronted by the victim who requested him to leave.  The victim retreated to her bedroom and Mr Gray followed her.  Mr Gray picked up a one litre bottle of vodka holding the bottle by the neck.  Mr Gray rushed at the victim and said, 'Tell me where your money is.  I want it now.'  The victim replied that she did not have any money and Mr Gray shouted, 'I am going to smash this bottle over your head if you don't tell me where your money is.'  Mr Gray said this three times whilst holding the bottle above his head.  Mr Gray pushed the victim on the back of her head and pushed her onto the bed.  Mr Gray then rifled through the bedside table and drawers.  Mr Gray did not find anything and left the room.  Mr Gray then picked up the victim's purse which contained $150 in Australian cash, a NAB cheque for $114, a WA licence and a Medicare card.  Mr Gray left the residence with those items.[7]  Mr Gray was charged with stealing (under $1,000) and being armed with an offensive instrument in circumstances likely to cause fear.

   [7] ts 21/02/2024, 5.

7. The final set of offending occurred on 5 February 2023 and is the subject of charges KH 2882/2023, KH 2884/2023, KH 2885/2023 and KH 2886/2023.[8]  At 5.30 pm on 5 February 2023, Mr Gray attended the same premises at Ferguson Street in Nikol.  The victim (being the same victim as with the offending which occurred on 18 January 2023) was present in a bedroom with a friend.  Mr Gray's brother was present in the lounge room playing video games.  The brother observed Mr Gray attempting to enter the house through the laundry door, and his brother challenged Mr Gray asking him what he was doing.

   [8] ts 21/02/204, 2 - 4.

8. Mr Gray asked his brother whether the front door was open to which he replied it was.  Mr Gray then entered the house through the front door with his girlfriend.  Mr Gray sat down in the lounge room for a short while talking to his brother.  The victim exited the bedroom and walked down the hallway and observed Mr Gray seated on the couch in the lounge room.  The victim was fearful of Mr Gray and retreated to the bedroom with her friend and locked the door.

9. A short time later Mr Gray attempted to open the locked bedroom door and said to the victim in a threatening tone, 'You have been running your mouth around town about me.'  The victim did not respond, and Mr Gray shouted, 'I want money.  Whatever you have got.  I will take half of it and go.'

10. Mr Gray then walked back to the kitchen where his girlfriend was sitting.  His brother approached Mr Gray and told him to get out of the house.  Mr Gray turned to his brother and threatened to knock him out.  Mr Gray then again approached the bedroom door and yelled something similar to, 'If you don't open the door I will stab your dog.'  The victim owns a small Chihuahua dog.

11. Mr Gray then shouted, 'I will give you a countdown' and started a countdown back from 30.  The victim's friend, who was with her in the bedroom, put his weight up to the door to stop it from being forced open.  The victim called the police and Mr Gray struck out at the door.  The victim yelled at Mr Gray, 'You can have $25.  That's all I've got.'  Mr Gray had at this stage reached the end of the countdown and had used his body to force through the centre of the door splintering the door into large pieces.  The door gave away and a piece of it caught the victim on her right leg causing a two-centimetre scratch.  The victim's friend stumbled backwards as the door was forced open with pieces of the door falling on him. 

12. Mr Gray pushed through the door and the victim observed a small kitchen knife with a coloured handle in his hand.  Mr Gray entered the room carrying the knife.  His brother approached Mr Gray and they each grabbed hold of each other by their shirts and throats.  His brother pushed Mr Gray into the wall which resulted in a large hole in the wall.  His brother then pushed Mr Gray towards the front door and Mr Gray left with his girlfriend.  The brother sustained a two‑centimetre laceration to his left arm due to the knife being carried by Mr Gray.

13. Mr Gray was charged with threatening to endanger or harm a person; being armed with a dangerous instrument (a kitchen knife) in circumstances that were likely to cause fear to any person; criminal damage (being the door and the wall); and threatening to unlawfully harm property, namely a Chihuahua dog.

Sentencing reasons

1. The Magistrate who sentenced Mr Gray on 21 February 2024 was the same Magistrate who sentenced Mr Gray in relation to the original offences on 11 October 2022.

2. Some time was spent attempting to ascertain the amount of time Mr Gray had spent in custody on remand.  The transcript reveals that the Magistrate was told that Mr Gray had been remanded since 7 February 2023, and had also spent a further four days on remand in January 2023.[9]  The Magistrate concluded that the backdating date was from 3 February 2023 (being a total of 383 days) and the following exchange occurred:[10]

   LOUW, MS: Although, it's complicated by the fact that he's in breach of a conditional suspended imprisonment order.

   HIS HONOUR: Yes, so it can't be backdated.

   LOUW, MS: No.  But, of course, your Honour can take - - -

   HIS HONOUR: That into account.

   [9] ts 21/02/2024, 7 - 10.

   [10] ts 21/02/2024, 10.

3. It is accepted by both appeal counsel that this calculated time on remand is both correct and related to the time spent on remand in relation to the new offences only.

4. The following exchange took place after the Magistrate ascertained the length of the CSI order:[11]

   LOUW, MS: So he has essentially done more than that if he had been sentenced to that with parole.  So I would have thought - it really comes down to the time in custody and an exercise in totality with re‑sentencing.

   HIS HONOUR: Yes, it's all going to be about totality, I suppose.  Yes.  The problem is none of it can be backdated now.  So I could take it into account in a general sense.

   [11] ts 21/02/2024, 11.

5. The officer from community corrections advised the learned Magistrate that Mr Gray's participation on the CSI order was 'very poor'.[12]  Mr Gray reported initially to community corrections where his obligations were explained to him, and he reported as directed from 19 October 2022 to 27 October 2022.  Mr Gray failed to report on 3 November 2022.  Mr Gray reported on 11, 15 and 24 November 2022 before there was no further contact and the report was completed on 5 December 2022.[13]

   [12] ts 21/02/2024, 14.

   [13] ts 21/02/2024, 14.

6. The plea in mitigation submitted that Mr Gray's offending was largely due to his use of methamphetamine:[14]

   LOUW, MS: Yes.  Really, Mr Gray's offending just comes down to his use of methamphetamine when he's in the community and his addiction in that regard.  Hopefully, now that he has been in custody for a year he has come out – he can come out with a sober outlook and - and, I suppose, try and remain drug free and a pro-social member of the community.  It really just does come down to the sheer amount of time in custody, your Honour.  Taking - so the 10 month suspended sentence but also the remainder of the time can be attributed, I suppose, to the other offending.

   If - also, the - what were the more serious offences which went up on indictment came down again.  So with substituted charges.  That occurred at his mother's house and at the time, I suppose, they were at odds, but I understand that things have been - well, that relationship seems to have improved.  In relation to the woman that he made the - the threats to she was someone who was staying at the house.  He denies that they had ever been in any sort of intimate relationship.  She described – he describes it - - -

   …

   LOUW, MS: Describes her as being angry and jealous.  Crazy.  So it wasn't a very functional, I suppose, environment where there was lots of drug use.  I don't know that there's just anything more than I can add.  Really, it comes down to the time in custody, your Honour.

   [14] ts 21/02/2024, 15.

7. Mr Gray's counsel also submitted, in response to the Magistrate's observations regarding Mr Gray's significant record of violent offending; the lack of remorse; the need for specific deterrence; the aggravating factor of the breach of the CSI order; and the lack of any mitigation save for the pleas of guilty that specific deterrence had been served by the fact that Mr Gray had been in custody for over a year and that he was going to receive terms of imprisonment.[15]

   [15] ts 21/02/2024, 16.

8. The transcript reveals that some time was spent considering the time spent in custody, and the effect of the breach of the CSI order on the ability of the Magistrate to backdate any sentences to account for time spent in custody.

9. In this regard, the following exchanges are relevant:[16]

   HIS HONOUR: And I have to structure it because it – the sentence has to start from today because he's been on the conditionally suspended term which has expired.  So I can't take into account the backdating.  All right.  Thanks, Ms Louw.  Is there anything - - -

   LOUW, MS: Well, unless - unless your Honour formed the opinion that it would be unjust given the time in custody to trigger that term or somehow - - -

   …

   HIS HONOUR: - - - it would, effectively, be accepting that any time that someone's remanded in custody it's unjust for the term to descend.  It seems to me that it's about structuring the sentence in a way that gives rise to an appropriate outcome, though, cumulacy and concurrency while still putting in place terms which appropriately reflect the criminality of the offending.  So - yes, look, I will - I will have to think about that and how that is going to work.

   …

   HIS HONOUR: Okay.  All right.  Thank you.  All right.  Look, Mr Gray, I'm just having a look at the way in which I structure this because it's highly (indistinct) it will be backdated.  It will take into account the time that you spent in custody in arriving at a total effective sentence, but the sentence will be imposed from today's date.  Do you understand that?

   …

   Look, I take into account your pleas of guilty.  I certainly take into account the time in custody that you've spent.  As we calculated earlier, you've been in custody since early February last year which I calculate back to being around 3 February.  So you've been in custody for just over a year and a substantial amount of that time was spent on remand.

   [16] ts 21/02/2024, 16 - 18.

10. The learned Magistrate referred to receiving a pre-sentence report, which his Honour summarised as follows:[17]

    Look, it's not particularly positive, Mr Gray.  It indicates that you failed to express - express remorse, regret or empathy.  That you've got a - it draws my attention to the fact of your previous history of violent offending.  Your previous refusal to take up violent offender treatment programs and your indication that the offending was driven by your methylamphetamine use.

    Positively, in the report it indicates that you've struggling - that you're struggling with mental health issues and that you would - and that you believe you would benefit from individual psychological counselling which, it seems to me, shows some commitment to dealing with your own issues.  What must be said, though, is that you - from – is that there is a concerning lack of remorse.  That there's little mitigation to be found in your record in terms of similar (indistinct) albeit more serious offending that also appears to be drug fuelled.

    [17] ts 21/02/2024, 18.

1. The learned Magistrate then went on to sentence Mr Gray.

2. In relation to the original offences, the Magistrate concluded that it was appropriate for the original terms to descend on the basis that there had been no benefit derived by the CSI order and that it would not be unjust to Mr Gray despite the time spent in custody.[18]  That sentence took effect on 21 February 2024.

   [18] ts 21/02/2024, 19.

3. The Magistrate sentenced Mr Gray to a total effective term of two years' immediate imprisonment, commencing on 21 February 2024.  In sentencing Mr Gray, the Magistrate identified the various factors that he had regard to.  These included the serious nature of the offences; that it was a significant spate of offending; that it was drug fuelled; the content of the pre-sentence report; the lack of any real mitigation save for the guilty pleas; the aggravation of the new offences being whilst Mr Gray was on a CSI order; the maximum penalties for the offences; the need for specific deterrence; and the totality of the sentence.[19]

   [19] ts 21/02/2024, 16 - 19.

4. The Magistrate referred to Mr Gray's pleas of guilty and stated:[20]

   Those pleas of guilty, it seems to me, has [sic] substantial merit given the number of incidents involved, the number of trials that could have been run and also - so the saving to the court's time, the saving to the witness' time and, to some degree, they demonstrate an acceptance of responsibility.

   [20] ts 21/02/2024, 18.

5. The Magistrate imposed sentences for each offence.  In so doing, the Magistrate did not specify precisely how the previous period on remand was factored into these sentences.  The Magistrate also did not impose sentences for each offence and then go on to consider the totality principle and make any adjustments to the length of any individual sentences, or consider the need for concurrent or cumulative sentences.  Rather, the Magistrate imposed a sentence for each offence which was intended to address all the matters referred to in [35] and [36] above, including the time spent in custody on remand and the first limb of the totality principle.[21]

   [21] ts 21/02/2024, 11, 16 - 18.

6. The Magistrate imposed the following individual sentences:

Charge	Offence	Sentence	Penalty
Original offences
KH 530/22	Assault occasioning bodily harm	6 months (head sentence)	5 years' imprisonment Summary penalty: 2 years' imprisonment and $24,000 fine
KH 531/22	Stealing (over $1,000)	2 months	7 years' imprisonment
KH 532/22	Steal a motor vehicle	4 months cumulative	7 years' imprisonment
KH 533/22	Threat to kill	2 months	7 years' imprisonment
KH 888/22	Breach of bail	1 month	$10,000 fine and/or 3 years' imprisonment
KH 1433/22	Breach of bail	1 month	$10,000 fine and/or 3 years' imprisonment
New offences
7 November 2022
KH 2039/22	No authority to drive	$400, 9 months' disqualification	First offence: 8 - 40 penalty units and up to 12 months' imprisonment and disqualification from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years.
28 November 2022
KH 2165/22 - KH 2170/22	Breach CSIO by non-compliance	1 month for each offence	$1,000 fine
30 December 2022
PE 58179/22	Trespass	2 months	12 months' imprisonment and $12,000 fine
PE 58180/22	Possess ammunition	3 months	5 years' imprisonment Summary: 3 years' imprisonment or $12,000
3 January 2023
PE 1416/23	Possession of stolen or unlawfully obtained property	4 months cumulative	7 years' imprisonment Summary: 2 years' imprisonment and $24,000 fine
18 January 2023
KH 2883/23	Stealing (under $1,000)	2 months	7 years' imprisonment Summary: $6,000 fine
KH 2887/23	Being armed in a way that may cause fear	4 months cumulative	7 years' imprisonment Summary: 3 years' imprisonment and/or $36,000 fine
5 February 2023
KH 2882/23	Threat to endanger or harm	3 months	3 years' imprisonment Summary: 18 months' imprisonment and $18,000 fine
KH 2884/23	Being armed in a way that may cause fear	4 months	7 years' imprisonment Summary: 3 years' imprisonment and/or $36,000 fine
KH 2885/23	Criminal damage	3 months	10 years' imprisonment Summary: 3 years' imprisonment and/or $36,000 fine
KH 2886/23	Threat to harm a dog	6 months cumulative	3 years' imprisonment Summary: 18 months' imprisonment and $18,000 fine

1. At the conclusion of imposing the individual sentences, the Magistrate explained as follows:[22]

   So we arrive then, Mr Gray, at a period of two years which is calculated to start from today and, effectively, gives rise to a total term that you will have served - whether or not you get parole is a matter for the parole board - but the total term then would have been a period of three years which, in my view, adequately represents the criminality of all of those matters taking into account the pleas of guilty.

   Taking into account the re-offending during the course of the conditionally suspended imprisonment order and also taking into account your pleas of guilty and the consequent discounts.

   [22] ts 21/02/2024, 20.

Grounds of appeal

1. The four grounds of appeal are as follows:

   1.the learned sentencing Magistrate erred in law in considering that he had no discretion to backdate the sentence imposed for the offences not the subject of a previously suspended sentence of imprisonment;

   2.the learned sentencing Magistrate erred in law in imposing sentences of imprisonment in relation to KH 2165‑70/2022, which can only be dealt with by way of a fine;

   3.the learned sentencing Magistrate erred in law in imposing a sentence of imprisonment in relation to KH 2883/2023, an offence of stealing property to the nominated value of $150, which can only be dealt with by way of a fine; and

   4.the learned sentencing Magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle having regard to all relevant matters, in particular the time the appellant had spent on remand prior to his sentencing.

2. The respondent submits that the Magistrate did not make the errors of law alleged in grounds 1 and 4.

3. However, the respondent concedes that grounds 2 and 3 of the appeal should be allowed, as the penalty for the offences the subject of charges KH 2165‑70/2022 and KH 2883/2023 is a fine only, and not a term of imprisonment.  The respondent submits that this court can resentence the appellant for these charges.  Further, the respondent submits that the penalties imposed by the Magistrate on these charges did not affect the overall term of effective imprisonment, and the error of law made by the Magistrate in relation to these charges does not engage the power to vary or set aside the other sentences imposed, independently of this court finding an error of law as alleged in grounds 1 and/or 4.

Legal principles

Appeal

1. The appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).  A sentence imposed by a court of summary jurisdiction as a result of a conviction is a decision which may be appealed.[23]  An appeal against sentence may be made on the grounds that, relevantly, the sentencing court made an error of law or imposed a sentence that was excessive.[24]

   [23] CA Act, s 6(f) and s 7(1).

   [24] CA Act, s 8(1)(a)(i) and (iii).

1. Leave to appeal is required for each ground of appeal.[25]  Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[26] meaning that the ground is required to have a rational and logical prospect of succeeding.[27]  Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[28]  A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[29]

   [25] CA Act, s 9(1).

   [26] CA Act, s 9(2).

   [27] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

   [28] CA Act, s 9(3).

   [29] Sami v Duggan [2011] WASC 304 [38].

2. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[30]

   [30] CA Act, s 14(2). See also Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.

Extension of time

1. An appeal against the decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision, unless the court orders otherwise.[31]  An extension of time to appeal will be granted if it is in the interests of justice to do so.[32]  In the present case the application for leave to appeal ought to have been commenced by 20 March 2024.  However, it was not commenced until 10 June 2024, being 82 days out of time.

   [31] CA Act, s 10(3).

   [32] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA).

2. The application for leave to appeal and the application for an extension of time were referred to the hearing of the appeal.  Mr Gray relies on the affidavit of Natalie Sinton affirmed 10 June 2024 in support of the application for an extension of time.  In short, the delay was caused by the time taken for Mr Gray's sentencing counsel to contact Legal Aid about a possible appeal; the time taken for an application for a grant of Legal Aid to be made and granted; the time taken for Legal Aid to speak with Mr Gray (who is in Albany Prison) and obtain instructions; and the time needed to prepare the appeal paperwork.  I am satisfied on the basis of the explanation provided in the affidavit and the merits of grounds 2 and 3 that it is appropriate to grant leave for an extension of time to appeal.

Grounds 2 and 3

1. It is convenient to first consider grounds 2 and 3.  The respondent concedes these grounds of appeal, and that concession is properly made.

2. Charges KH 2165-70/2022 concern breaches of the CSI order imposed on 21 October 2022 for the original offences. A breach of a requirement of a CSI order without reasonable excuse is an offence contrary to s 84J(1) of the Sentencing Act.  The penalty for breaching a requirement of a CSI order is a fine of not more than $1,000 (s 84K(3) of the Sentencing Act).  Mr Gray was given a penalty of one month imprisonment for each charge, to be served concurrently.

3. For completeness, Mr Gray was charged with six breach offences as six CSI orders were imposed, being one for each of the original offences.  Whilst this approach has been questioned,[33] Mr Gray did not take issue with this approach on appeal and accepts that he should be resentenced for the six breaches.

   [33] Watson v Oldham [2011] WASC 119 [31] - [32].

4. Charge KH 2883/2023 concerns the offence of stealing (under $1,000) contrary to s 378 of the Criminal Code which occurred on 18 January 2023 when Mr Gray stole the victim's purse which contained $150 in cash, a NAB cheque for $114, a WA licence and a Medicare card.  However, the nominated value of the goods stolen was only $150.  The summary conviction penalty for the offence of stealing where the value does not exceed $1,000 is a fine of $6,000 (s 426(4) of the Criminal Code).  Mr Gray was given a penalty of two months' imprisonment (concurrent).

5. In sentencing Mr Gray to terms of imprisonment for these offences, the Magistrate has made an error of law. I therefore grant leave to appeal in relation to grounds 2 and 3 and will resentence Mr Gray for these offences pursuant to s 14(1)(d) of the CA Act.

6. There is a difference between the parties as to the effect of these sentences on the total effective term of imprisonment imposed by the Magistrate.  I am of the view that this issue is best considered in the context of ground 4.

Ground 1

1. Ground 1 alleges that the Magistrate erred in law in considering that he had no discretion to backdate the sentence imposed for the new offences.

2. Mr Gray relies on the exchanges in the transcript referred to in [25], [27] and [32] above where, after ascertaining the amount of time spent on remand, the Magistrate stated that the sentence could not be backdated.

3. Section 87 of the Sentencing Act is concerned with time spent on remand and provides:

   (1) If when an offender is being sentenced to imprisonment for an offence —

   (a) the offender has previously spent time —

   (i) in custody in respect of the offence for which the offender is being sentenced; or

   (ii) in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;

   and

   (b) the sentencing court decides that that time should be taken into account,

   the court may take that time into account —

   (c) if it imposes a fixed term, by reducing that term by an appropriate period; or

   (d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.

   (2) Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).

4. However, s 87 of the Sentencing Act is not the source of the court's power to take time spent in custody on remand into account when sentencing an offender.  The court has that power independently of the Sentencing Act in the exercise of its sentencing discretion. What s 87 does is set out the means by which a sentence can be backdated where the court has, in the exercise of its non‑statutory power determined, as contemplated by s 87(1)(b), to take time spent in custody on remand into account. Section 87 of the Sentencing Act is facilitative and is not intended to limit the general discretion that the courts have to take time spent in custody on remand into account when appropriate.[34]

   [34] Dragon v State of Western Australia [2008] WASCA 252 [50]; Narkle v Hamilton [2008] WASCA 31 [30] ‑ [31].

5. However, when exercising the power under s 84F of the Sentencing Act to deal with an offender who has breached the requirements of a CSI order, a court which orders a person to serve a term of imprisonment that was suspended is not empowered to backdate that term of imprisonment under s 87 of the Sentencing Act.[35]

   [35] Dragon v State of Western Australia [2008] WASCA 252 [48] ‑ [51].

6. I accept that the Magistrate, when referring to the inability to backdate Mr Gray's sentence, has not made a distinction between the sentence in relation to the new offences, and the resentencing of Mr Gray for the original offences following the breach offences.  To the extent that the Magistrate was of the understanding that the sentence for the new offences could not be backdated, I accept that this is incorrect.

7. However, under s 87 of the Sentencing Act the Magistrate was not required to backdate the sentences for the new offences to take into account time spent in custody.  It was open to the Magistrate, in the exercise of the sentencing discretion, to take the time spent in custody into account in arriving at the individual sentences or the total effective sentence.  This is accepted by Mr Gray.

8. The transcript references referred to at [25], [27], [32] and [40] above reveal that the Magistrate understood that it was open to him to take into account the time spent on remand when setting the individual or total effective sentence for the new offences, and the Magistrate expressly refers to taking the time spent in custody into account in sentencing Mr Gray.  The Magistrate stated that the sentences imposed amounted to a period of imprisonment of two years commencing on 21 February 2024, which effectively amounted to a total term of three years.  This additional year approximately corresponds with the time spent on remand in relation to the new offences.  In light of these transcript references, I do not consider the Magistrate made an express error by failing to have regard to the time Mr Gray spent on remand in relation to the new offences.  On the contrary, the Magistrate did have regard to the time spent in custody in sentencing Mr Gray.  For this reason, I do not consider there has been any express error of law or miscarriage of justice in the exercise of the sentencing discretion.

9. I consider that the real question which arises is whether there is an inferred error in the Magistrate's arrival at a total effective sentence which takes into account the time spent in custody on remand.  This is a question more appropriately considered in the context of ground 4 of the appeal which concerns the application of the first limb of the totality principle.

10. I therefore do not grant Mr Gray leave to appeal in relation to ground 1.

Ground 4

1. Ground 4 concerns the application of the first limb of the totality principle.  Mr Gray submits that the Magistrate erred in imposing a total effective sentence that infringed the first limb of the totality principle having regard to all relevant matters, in particular the time the appellant had spent on remand prior to his sentencing.

Legal principles

1. The principles that apply on an appeal against sentence contending that error should be inferred on the basis that a total effective sentence infringes the totality principle are well established and were summarised by the Court of Appeal in Kambabi v The State of Western Australia as follows:[36]

   (1) Sentencing is a discretionary exercise.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.  Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter.  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 a sentencing discretion differently.

   …

   (3) 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.

   (4) The range of sentences customarily imposed for a crime 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 is the unifying principles which sentences imposed in comparable cases reveal and reflect.

   (5) 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.

   (6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.  A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts.  A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  The real question is whether the total effective sentence is unreasonable or plainly unjust.

   [36] Kambabi v The State of Western Australia [2019] WASCA 44 [21].

1. An appeal on the ground that the first limb of the totality principle has been infringed alleges an implied error and the principles referred to in House v R[37] are therefore applicable.  It is therefore necessary for the sentence to be unreasonable or plainly unjust before an error of principle can be inferred from the result.  A corollary of this rule is that appellate courts ought not be 'tinkering' with sentences.[38]

   [37] House v R [1936] HCA 40; (1936) 55 CLR 499.

   [38] Allen v The State of Western Australia [2017] WASCA 203 [66].

2. In The State of Western Australia v Tawhitapou,[39] the Court of Appeal summarised the process for considering and applying the totality principle as follows:

   [39] The State of Western Australia v Tawhitapou [2024] WASCA 25.

   63 It is well established that:

   (a) a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;

   (b) if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and

   (c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.

   See Pearce v The Queen and Nguyen v The Queen.

   64However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently, or by reducing the otherwise appropriate length of one or more of the individual sentences.  See Mill v The Queen; Johnson v The Queen and Nguyen.  Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.

   (citations omitted)

3. The importance of the sentencing court ensuring proper sentencing on each count before considering the totality principle was outlined in Pearce v The Queen by McHugh, Hayne and Callinan JJ as follows:[40]

   45To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender.  Such an approach is likely to mask error.  A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

   …

   47…If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

   (citations omitted)

   [40] Pearce v The Queen (1998) 194 CLR 610 [45], [47].

4. It is also relevant to observe that the sentencing process proceeds on the basis of 'instinctive synthesis', unless otherwise required by statute (for example s 9AA of the Sentencing Act).  The task of the sentencing court is to take into account all the relevant factors and to arrive at a single result which takes due account of them and is proportionate and just.  The sentencing process does not proceed on the basis of a two‑stage approach, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case.[41]

Parties' submissions

[41] Wong v The Queen (2001) 207 CLR 584 [74] ‑ [78]; Markarian v The Queen (2005) 228 CLR 357 [37] ‑ [39] (Gleeson CJ, Gummow, Hayne & Callinan JJ), [66] - [70], [84] (McHugh J); Kelly v The State of Western Australia [2024] WASCA 116 [255] ‑ [262] (Buss P), [351] ‑ [358] (Mazza & Hall JJ).

1. Mr Gray does not challenge the individual sentences imposed for any of the offences, including the decision that Mr Gray serve the 10 months' imprisonment that was conditionally suspended for the original offences.  Mr Gray accepts that in imposing a CSI order for 10 months on 11 October 2022, the sentencing Magistrate had regard to the time spent on remand for these offences, being two months.

2. Mr Gray also submits that when regard is had to the total amount of time Mr Gray spent on remand for both the original and new offences (being a total of 439 days), Mr Gray's total effective sentence is approximately three years, two months and two weeks (being the two years' imprisonment, plus one year, two months and two weeks on remand). 

3. Mr Gray submits that whilst on its face, the total effective sentence of two years' imprisonment may not appear to infringe the first limb of the totality principle, the sentencing process adopted by the Magistrate was deficient and led his Honour into error.  Mr Gray submits that the process followed by the Magistrate obscured the sentencing process such that it is not possible to understand to what extent the time spent in custody on remand has been factored into the individual sentences and what criminality has been attributed to each offence.  Further, to the extent the Magistrate refers to the total term that 'would have been' three years (compared with the total effective sentence of two years), the difference is not consistent with the total amount of time spent in custody on remand.  Mr Gray submits that the difference of two months and two weeks is a material difference.  Mr Gray submits that the time spent in custody is significant in terms of the sentencing process as the need for retribution has reduced due to the rehabilitative effect of the time spent on remand.

4. In addition, Mr Gray pleaded guilty to all offences.  Whilst reference is made to the pleas in the sentencing transcript, the Magistrate did not specify the discount that was given for the guilty pleas.  Mr Gray does not allege an express error in relation to the lack of a reference to the precise discount for a guilty plea.  Rather, Mr Gray submits that when regard is had to the time spent in custody, the guilty pleas and all other relevant sentencing factors, the total effective sentence infringed the first limb of the totality principle.

5. The respondent submits that there is no requirement for the Magistrate to specify the precise manner in which the time spent in custody has been taken into account in arriving at the sentence.  The respondent submits that given all relevant sentencing factors, including the seriousness of the offending; the need for specific deterrence; and other comparable cases, the total effective sentence was not out of proportion to the criminality of Mr Gray's conduct, even when his guilty pleas and time spent in custody are taken into account.

Does the sentence offend the first limb of the totality principle?

1. I accept that the approach adopted by learned Magistrate in sentencing Mr Gray in this instance does not follow the orthodox approach of setting sentences for each individual charge before going on to consider totality, making any adjustments to the total effective sentence in terms of the term/s or concurrency.  The learned Magistrate also did not specify the amount of the discount given for Mr Gray's guilty pleas.  Rather, the process adopted by his Honour considered all of these matters before arriving at a final sentence for each charge and a total effective sentence.  I accept that the Magistrate was sentencing Mr Gray for a number of offences, in the middle of a no doubt very busy list and I am mindful that allowance must be made for a necessary level of inexactitude in remarks made in a busy court of summary jurisdiction delivering ex tempore judgments.[42]

   [42] Strahan v Brennan [2014] WASC 190 [89] - [90]; citing Magistrates Court Act 2004 (WA) s 31(1).

2. The risk in adopting this approach is that the precise sentencing process is obscured, and the process proceeds on an imperfect basis.  However, the mere fact that the orthodox process was not followed does not of itself mean that the first limb of the totality principle has been infringed.  In order to ascertain this, it is necessary to consider the sentence in light of the maximum sentence prescribed by law for the crime; the standards of sentencing customarily imposed with respect to it; the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; Mr Gray's personal circumstances; his time spent on remand; and his pleas of guilty.

3. In the present case, Mr Gray does not challenge the individual sentences imposed for each offence.  Rather, the basis of Mr Gray's appeal is that the total effective sentence does not adequately take into account the time spent on remand.  There is no requirement that the learned Magistrate detail precisely how the time spent on remand has been factored into his individual sentences or the total effective sentence.  However, I observe that the learned Magistrate did identify this when originally sentencing Mr Gray to the CSI order on 11 October 2022, where he expressly took into account the two months spent on remand in arriving at a term of 10 months.

4. Counsel described the total effective sentence in various ways in both written and oral submissions.  The total effective sentence imposed on 21 February 2024 was a term of immediate imprisonment of two years, to commence on the date of sentencing.  However, counsel for Mr Gray submitted that when Mr Gray's time on remand, for both the original and the new offences is considered, the total effective sentence is a period of three years, two months and two weeks.

5. I consider the appropriate characterisation of the total effective sentence is that it is for a period of two years.  The question which arises in the context of ground 4 is whether that sentence infringes the first limb of the totality principle, taking into account all relevant sentencing factors, including the time spent on remand.

Maximum sentences and seriousness of the offending

1. The maximum sentences for the various offences are set out in the table earlier in these reasons.

2. Whilst the summary conviction penalties are included in the table, in sentencing an offender it is the statutory maximum penalty that is the relevant maximum and not the jurisdictional limit.[43]

   [43] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [26] - [31].

3. Mr Gray, appropriately, accepts that his core offending was serious. 

4. The offending the subject of the original offences was serious.  Mr Gray punched the victim with a closed fist and rendered him unconscious, causing pain, discomfort, swelling, bruising and grazing.  He then stole the victim's mobile phone and forced him to unwillingly assist to steal a motorcycle and threatened the victim with a shovel and to kill him if he did not leave town.  The entirety of the offending would have left the victim injured and shaken.

5. In relation to the six separate instances of offending comprising the new offences, I accept that the offending on 7 November 2022 (being driving without a licence) and 28 November 2022 (being the breach of the CSI orders by not attending when directed) cannot be described as particularly serious. 

6. However, the same cannot be said about the other instances of offending comprising the new offences. 

7. The offending which occurred on 30 December 2022 involved Mr Gray being located at the rear of a property that was not his own, sitting on a yellow quad bike.  Mr Gray fled, and when he was located the police found approximately 2,000 rounds of live ammunition, being mostly .22 calibre, for which he was not licenced to purchase.  Being in possession of live ammunition when not licenced is particularly serious.

8. The offending which occurred on 3 January 2023 involved being in possession of stolen or unlawfully obtained property, being a motorcycle valued at $7,000.  The property cannot be described as being insignificant or of minimal value.

9. The offending which occurred on 18 January and 5 February 2023 was, in my view, particularly serious.  In each instance, Mr Gray had visited a property and engaged in what can broadly be described as standover tactics in order to obtain property.  In the course of doing so he had armed himself in a manner likely to cause fear.

10. On 18 January 2023, Mr Gray armed himself by holding a bottle of vodka by the neck, before rushing at the victim in her bedroom demanding to know where her money was; pushing the victim onto her bed; threatening to smash the bottle over her head three times; and then stealing property to the nominated value of $150.  Whilst the value of the property ultimately stolen was not large, the entirety of the behaviour was threatening and would have been terrifying for the victim.  Not only did Mr Gray enter the victim's home, but he also rushed at the victim in her bedroom.

11. On 5 February 2023, Mr Gray again returned to the premises and armed himself with a kitchen knife.  Mr Gray again threatened the victim and demanded money and threatened to stab the victim's dog if she did not come out of the bedroom to which the victim had understandably run into to hide by locking the door.  Mr Gray then used his weight and force to break through the bedroom door, splintering it into large pieces.  Mr Gray also pushed his brother into the wall when his brother tried to stop him, resulting in a large hole in the wall.  The entire process of the offending would have been terrifying for those involved.  Again, not only was Mr Gray in the victim's home, but he forced his way through a locked door into the victim's bedroom and was only deterred when his brother intervened.  The criminal damage was serious and could not be described as being the result of a one‑off loss of temper or an accident.

Comparable cases

1. The parties have not referred the court to many comparable cases.  That is not surprising in the present case due to the number and combination of offences and facts and the corresponding limitations on the usefulness of those cases.  The lack of any (or many) comparable cases does not prevent a conclusion that the total effective sentence infringes the first limb of the totality principle.  It merely has the consequence that the court lacks cases to provide a yardstick against which to judge the total effective sentence.[44]

   [44] Ugle v The State of Western Australia [2022] WASCA 135 [94].

2. Unsurprisingly, the parties have not identified any comparable cases that address the combination of the various offences Mr Gray committed.  However, the following cases are of some relevance in relation to the more serious of the individual offences.

Being armed to cause fear

1. The respondent has referred the court to two decisions which have concerned single charges of being armed to cause fear, being Donovan v The Director of Public Prosecutions[45] and King v The State of Western Australia.[46]  The respondent submits that in these cases sentences of between 14 ‑ 16 months were imposed for individual charges of being armed to cause fear, and therefore a total effective sentence of two years for all of Mr Gray's offending does not infringe the first limb of the totality principle.

   [45] Donovan v The Director of Public Prosecutions [2024] WASC 9.

   [46] King v The State of Western Australia [2013] WASCA 131.

2. There is no tariff for offences of being armed in a manner that may cause fear, given the variety of circumstances in which the offence may be committed.

3. In Donovan v The Director of Public Prosecutions, the appellant drove into a fuel station in a stolen vehicle.  The appellant took a number of items from the store without paying for them to the total value of $182.80.  Staff confronted the appellant as he got back into the car and asked him to return the items.  The staff subsequently returned to the store and locked the door.  The appellant then came back to the store with a small axe and tapped the axe on the glass window, showing the victim.  The appellant was sentenced to two years for the offence of being armed in a way that may cause fear and three months for the offence of burglary.  On appeal, that sentence was held to be manifestly excessive, and a sentence of 14 months' immediate imprisonment was substituted for the offence of being armed in a way that may cause fear.

4. In King v The State of Western Australia, the offender entered a store armed with a hammer and used that hammer to smash the glass of a display cabinet, from which he stole five watches.  A customer witnessed this and retreated from the area of the cabinet.  The owner of the shop came in after hearing the glass break.  The offender brandished the hammer in the direction of the owner and ran from the store.  The offender was several metres from the shop owner when he brandished the hammer.  The offender pleaded guilty and was sentenced to two years and six months' imprisonment, reduced to two years for totality (the appellant was also being convicted of unlawful damage and stealing and was sentenced to a total effective sentence of three years' imprisonment).  On appeal, the Court of Appeal reviewed various comparable cases before concluding that this sentence was manifestly excessive, and resentenced the appellant to 12 months' imprisonment (although the total effective sentence of two years' imprisonment was unchanged). 

5. Other relevant cases referred to in these two authorities include Hume v Jefferd.[47]  The offender, who was intoxicated, attended a petrol station armed with a metal pole.  He used the metal pole to strike the glass shop front four or five times before throwing a spillage kit on the floor, then chasing a customer while wielding the pole.  He then left the petrol station and walked along the road where he began to chase cars, swinging the pole at them.  At one point, he approached a woman and child walking down the street and held the pole above his head in a threatening manner.  He dropped the pole and picked up a wooden stake which he then swung at passing vehicles causing them to swerve.  The offender had a significant criminal record, including violent offences and breaches of suspended imprisonment orders.  The appellant pleaded guilty to the offence.  A sentence of nine months' immediate imprisonment was overturned on appeal and substituted for a sentence of six months and one day imprisonment, suspended for 12 months.  Relevant to the sentence was credit for time served prior to obtaining bail pending the appeal (63 days) and recognition of the progress towards rehabilitation while serving that sentence and on bail pending the appeal.

   [47] Hume v Jefferd [2018] WASC 272.

6. In Quigley v The State of Western Australia,[48] two security guards had approached the offender and his two friends whom they suspected of having stolen a bottle of wine from a Woolworths Liquor outlet.  The offender began shouting and swinging the wine bottle at the security guards.  The offender then called upon one of his friends to give him a knife.  The friend drew a knife with a 19 centimetre blade from her purse and gave it to the offender.  The offender moved to within a couple of metres of the security guards, threatening to kill them.  The offender and his two friends then ran from the scene.  The offender was 23 years old at the time of the offence and had a quite extensive criminal record.  He pleaded guilty (relevantly) to two counts of being armed with offensive weapons (a knife and a wine bottle) in circumstances likely to cause fear and two counts of making an unlawful threat to kill.  He was sentenced to 12 months' imprisonment on each of the counts of being armed with offensive weapons in circumstances likely to cause fear, to be served concurrently, and to a total effective term of 28 months' imprisonment for the offences.  An application for leave to appeal against sentence was dismissed.

   [48] Quigley v The State of Western Australia [2013] WASCA 9.

1. In Richardson v Pickett,[49] the 18-year-old offender and two co‑offenders pursued the complainant into a service station.  The three were armed, the offender with a machete.  They pursued the complainant around the service station, wielding the weapons.  As the complainant attempted to run out, the offender struck him twice to the head area with the machete.  A co‑offender struck the complainant several times to the head and body with two tomahawks.  The complainant suffered skull fractures, loss of sensation in the left ear, broken bones in his left hand and lacerations to his right hand and forearm.  The offender pleaded guilty to one count of assault with intent to do grievous bodily harm and one count of being armed in a way that may cause fear.  He was sentenced to 16 months' imprisonment on the count of grievous bodily harm and six months' imprisonment on the count of being armed in a way that may cause fear, both terms being suspended for two years.  A State appeal against sentence was upheld and the suspension of the terms set aside, but the terms were not disturbed.

Criminal damage

[49] Richardson v Pickett [2008] WASC 203.

1. There is no established range of sentences for criminal damage.  This is because the circumstances in which such an offence can be committed can vary markedly.[50]

   [50] Hill v Director of Public Prosecutions (WA) [2023] WASC 437 [36].

2. In Hill v Director of Public Prosecutions (WA),[51] the offending involved the offender attending a restaurant near the Midland Gate Shopping Centre.  The offender picked up a chair from outside the restaurant and threw it at the front glass window.  The glass did not break.  The offender then threw another chair at the front glass window causing the entire window to smash.  An employee inside the restaurant received a small cut to his arm.  The offender then threw a third chair at the window but it did not smash the glass.  There were numerous families inside the restaurant at the time of the offending.  A sentence of seven months' immediate imprisonment was overturned on appeal and a fine of $1,000 imposed instead. 

   [51] Hill v Director of Public Prosecutions (WA) [2023] WASC 437.

3. In Phelps v Standen,[52] the offender punched two windows on an empty bus parked on the roadway, smashing both windows.  The offender was angry because he had been assaulted.  An aggravating factor was that the offender, who had a significant criminal record, was on parole at the time of the offending.  A term of imprisonment of eight months was overturned on appeal and the offender was resentenced to a fine of $1,000 instead. 

   [52] Phelps v Standen [2020] WASC 459.

4. In Corpus v Roseveare,[53] the offender entered a fast‑food restaurant at 8.00 pm and, within sight of the employees but in the absence of customers, kicked four windows of the restaurant causing damage.  The offender suffered from schizophrenia which was likely to have affected his behaviour and was a significant mitigating factor.  A term of immediate imprisonment of eight months was imposed (and a total effective sentence of 13.5 months imposed).  On appeal, Hall J accepted that a term of immediate imprisonment of eight months was 'a severe sentence' in all the circumstances and in particular, those personal to the offender.  However, Hall J concluded that the sentence needed to be viewed in the context of the other sentences imposed on the offender for other offences.  Ultimately, Hall J concluded that the total effective sentence offended the totality principle and reduced that sentence by four months which was achieved by reducing the sentence on the criminal damage charge to four months' imprisonment.

   [53] Corpus v Roseveare [2015] WASC 165.

5. These decisions identify factors such as the nature and extent of the damage; whether the damage was planned or whether it was a single act done quickly and without an opportunity for real thought; whether the damage is associated with breaching property rights; and whether anyone was endangered by the action as being particularly relevant (in addition to the usual sentencing considerations) when sentencing for offences of criminal damage.

Assault occasioning bodily harm

1. In Billington v Depetro,[54] Fiannaca J reviewed the various appeal authorities regarding sentences for assault occasioning bodily harm and observed:

   The Court of Appeal has considered the appropriate range of sentences for the offence of assault occasioning bodily harm on a number of occasions.  The cases demonstrate that it is difficult to discern any 'tariff' or usual sentencing range for that offence because of the great variation in circumstances in such cases.  Nevertheless, in Holden v The State of Western Australia, Wheeler JA concluded that 'in cases which have involved pleas of guilty, a post-transitional range could appropriately include sentences from 6 months' suspended imprisonment, to 2 years' immediate imprisonment', and that the range had been demonstrated to be appropriate even in relation to sentences imposed by magistrates.

   (citations omitted)

   [54] Billington v Depetro [2018] WASC 171 [114].

2. Fiannaca J also observed that the following factors had been identified in the authorities as being relevant to assessing the relative seriousness of an offence of assault occasioning bodily harm:[55]

   [55] Billington v Depetro [2018] WASC 171 [119].

   (1) Whether the assault was premeditated.  Usually a premeditated assault will be regarded as more serious than an impulsive act of violence.

   (2) The nature and extent of the violence.  A persistent attack involving extensive violence will ordinarily be regarded as more serious than a brief assault with minimal violence.

   (3) Whether a weapon was used.  Generally, the use of weapons will aggravate an offence.

   (4) Whether the assault was committed in company with other offenders.  If so, it will generally be regarded as more serious.

   (5) The nature and extent of the injury or injuries inflicted.

   (6) Whether the assault was unprovoked.

   (7) The vulnerability of the victim both to the attack and to suffering serious injury.

Mr Gray's personal circumstances

1. As outlined by the learned Magistrate, there were not a lot of mitigating factors in Mr Gray's favour.  There was a significant need for personal deterrence given Mr Gray's criminal record and the new offences being committed whilst subject to the CSI orders.  Mr Gray's record means that he did not have the mitigating factor of being of prior good character.  Further, at age 29 Mr Gray also did not have youth as a mitigating factor.  Mr Gray's drug use is not a mitigating factor, however it does explain Mr Gray's offending.  Mr Gray's period of time in prison on remand afforded him the opportunity to abstain from drug use.

2. The pre-sentence report identifies limited mitigating factors, including a lack of expressed remorse, regret or empathy.  The role played by Mr Gray's methamphetamine use is identified and a concern is expressed that the use of violence and intimidation has become an established and instrumental strategy Mr Gray uses to meet his perceived needs.

3. The most significant mitigating factor was Mr Gray's pleas of guilty.  I have reviewed the prosecution notices, and whilst Mr Gray did not plead guilty at the earliest opportunity on all of the offences, that must be understood in the context of some of the charges being amended.  On the whole, the guilty pleas resulted in a trial being avoided on a number of offences on different dates and Mr Gray was entitled to a significant discount for those pleas.

Time spent on remand

1. There is no dispute that Mr Gray spent two months on remand for the original offences before the CSI order was imposed.  There is also no dispute that Mr Gray spent one year and two weeks on remand before being sentenced for the new offences.

The sentence does not infringe the first limb of the totality principle

1. I do not consider that the total effective sentence imposed by the Magistrate infringes the first limb of the totality principle. 

2. The individual sentences imposed by the Magistrate (leaving aside those the subject of grounds 2 and 3) cannot be described as excessive or even high.  They were modest sentences having regard to the maximum penalties, the seriousness of the offending, the limited mitigating factors and the comparable cases.  Further, when the totality of the offending behaviour is considered, a total effective sentence of two years' imprisonment is not disproportionate and bears a proper relationship to the overall criminality involved.  The sentencing exercise undertaken by the Magistrate has given due regard to the pleas of guilty and the time spent on remand by way of the individual sentences imposed and the degree of accumulation of those sentences.

3. The offending behaviour comprising the original offences and the new offences was serious and a term of imprisonment was appropriate given the offending behaviour and the maximum penalties.  The offending behaviour comprising the original offences (save for the breach of bail) and the offending on 18 January and 5 February 2023 was particularly serious.  There is no challenge to the individual sentences.

4. Given Mr Gray's conduct, including that the new offences occurred whilst Mr Gray was subject to the CSI order, and his criminal record, there was a need for specific deterrence.

5. The offending also occurred on multiple dates, and it was appropriate for there to be a degree of accumulation of the sentences for the various instances of offending.  The offending behaviour that was subject to (lawful) sentences of imprisonment occurred on four separate occasions.  However, the Magistrate only made the sentences of imprisonment for three of those instances of offending (being 3 January 2023, 18 January 2023 and 5 February 2023) cumulative on the head sentence of the 10 month term of imprisonment for the original offences. 

6. The offending on 5 February 2023 consisted of multiple offences.  The Magistrate explained in his sentencing reasons that the entire criminality of all offending on that day was addressed by imposing a term of six months' imprisonment on charge KH 2886/23, and then making the other sentences for the remaining offences on that day cumulative on that sentence.[56]

   [56] ts 21/02/2024, 20.

7. The sentences for the offending on 30 December 2022 were made concurrent.  Objectively, a degree of accumulation for this instance of offending was also warranted.  It occurred on a separate date and consisted of different and separate offences.  Further, the offending on 30 December 2022 consisted of two entirely separate offences and a different course of conduct.  A degree of accumulation for each of these offences was also objectively warranted.

8. It was appropriate for the sentence to have regard to Mr Gray's guilty pleas.  These pleas removed the need for a trial on multiple offences involving various witnesses.  In light of the facts read at the sentencing, the prosecution case would appear to be reasonably strong on many of the offences, given the presence of witnesses to many of the instances of offending.  However, I accept that discount of at least 20% was warranted.

9. It was also appropriate for the sentence to have regard to the time spent on remand, which the Magistrate considered.  The time spent on remand was significant in duration and reduces the extent of the need for retribution and rehabilitation.  The sentencing exercise is one of instinctive analysis and not a mathematical exercise.  The Magistrate was not required to specify precisely how much credit was given for the time spent on remand and to necessarily provide 'credit' that precisely matched the time spent on remand.  To the extent the Magistrate referred to a total term that 'would have been a period of three years' does not mean the Magistrate has failed to have regard to the total time spent on remand.  The question is whether the total effective sentence of two years adequately reflects the total criminality of the offending behaviour, having regard to (relevantly) the time spent on remand in the context of all other relevant sentencing factors.

10. There were no other mitigating factors, and the pre‑sentence report was not positive.  The significant cause of Mr Gray's offending is his methamphetamine use.  Mr Gray's drug use is not mitigating, but it does explain his offending.  Whilst Mr Gray has been able to abstain from methamphetamine whilst on remand, there is no evidence of his ability to abstain whilst not in prison.  He was unable to do so whilst subject to the CSI order.  Further, Mr Gray has not been able to undertake any programmes to address his drug use whilst on remand, although Mr Gray has indicated through counsel that he is ready and willing to do so. 

11. Accepting the limitations that comparable cases can have in this case, I am of the view that when the comparable cases are considered in relation to the more serious individual offences, it cannot be said that the individual sentences were anything other than modest, and it cannot be said that the total effective sentence was unreasonable or unjust.

12. The offending behaviour constituting the assault occasioning bodily harm (one of the original offences) was serious.  It was an unprovoked assault and resulted in the victim being rendered unconscious for a short period, in addition to causing pain, swelling, bruising and grazing.  It was committed in circumstances where other offences against the victim then occurred.  The sentence of six months' imprisonment was not outside the range referred to in Billington v Depetro.

13. The offending behaviour comprising the two offences of being armed in a way that may cause fear were each objectively more serious than the offending behaviour in the cases of Donovan v The Director of Public Prosecutions and King v The State of Western Australia.  Unlike those cases, Mr Gray entered the home of the victim and forced his way into the bedroom of victim.  He was physically close to the victim and his actions were threatening.  In these cases, terms of imprisonment of 14 months and 12 months were imposed for one offence.  I also consider the offending behaviour was objectively no less serious than that in the case of Quigley v The State of Western Australia, where a term of 12 months' imprisonment for one offence was imposed.

14. The offending behaviour comprising the criminal damage was more serious than that which occurred in Hill v Director of Public Prosecutions and Phelps v Standen.  Unlike those cases (where only fines were imposed) the present offending was to personal property and occurred in the victim's home, it endangered the victim and those present in the room at the time, and it was not the result of a single act done quickly without an opportunity for any real thought.  As in Corpus v Rosevare, the offending behaviour also needs to be considered in the context of the broader offending which occurred on that day.

15. When the various comparable cases are considered in relation to single instances of offending for the more serious charges, I accept the respondent's submission that, to the extent the comparable cases are relevant, the total effective sentence cannot be seen to be outside the general sentencing standards for these offences.

16. Finally, the total effective sentence imposed by the Magistrate included the sentences of imprisonment erroneously imposed for the offences the subject of grounds 2 and 3.  Each of these terms of imprisonment were made concurrent on the head sentence, and I do not consider either affected the total effective sentence.  The offending the subject of the stealing charge (KH 2883/23) occurred on 18 January 2023 and occurred on the same date and in the same course of conduct as the first offence of being armed in a way that may cause fear.  There is no challenge to the individual sentence for the offence of being armed in a way that may cause fear, and it was appropriate for the sentence for this charge to be made cumulative on the head sentence.  Accordingly, I accept the respondent's submission that the error in sentencing Mr Gray on these charges was confined to the sentences imposed on these charges, and did not result in the total effective sentence infringing the first limb of the totality principle.

17. In all the circumstances, I am of the view that the total effective sentence of two years is not unreasonable or unjust and properly reflects the totality of the serious offending, having due regard to the pleas of guilty and the time spent on remand.  I will grant Mr Gray leave to appeal in relation to ground 4, but I will dismiss that ground of appeal.

Resentencing

1. It is necessary to resentence Mr Gray for the offences of breaching the terms of the CSI order (charges KH 2165/2022 ‑ KH 2170/2022) and the offence of stealing (under $1,000) (charge KH 2883/2022).

2. The court has the necessary material to resentence Mr Gray.  Details of the circumstances of the offending; the maximum penalty; Mr Gray's personal circumstances and the mitigating factors are detailed earlier in these reasons.  I have also had regard to the pre-sentence report and the additional oral submissions made by Mr Gray's counsel at the hearing of the appeal.

3. In relation to the breaches of the CSI order, Mr Gray has been charged with six breaches of the CSI order in relation to one set of facts underlying the breach (being the failure to report on 28 November 2022 as directed).  In all the circumstances, I consider the appropriate penalty is a fine of $100 for charge KH 2165/2022 (being the breach associated with the charge of threatening to kill).  I have given Mr Gray a discount of 25% for his plea of guilty to this offence. 

4. For the remaining offences of breaching the CSI order (being charges KH 2166/2022 ‑ KH 2170/2022), I consider it is just in all the circumstance to order that no sentence be imposed under s 46 of the Sentencing Act. I consider the breaches on the remaining five charges to be technical because each relates to the exact same conduct and single failure to report as for charge KH 2165/2022. Mr Gray has seemingly been charged with six offences for the exact same conduct because the CSI order is recorded against all six original offences. My conclusion in this regard should not be taken to mean that failing to comply with a direction to attend a programme is itself technical or trivial. Rather, it is the particular facts of this case which have resulted in my conclusion. I have also had regard to the matters referred to in s 46(b) of the Sentencing Act in reaching my conclusion that it is just to order no sentence on these remaining charges, given that Mr Gray has been fined in relation to the underlying conduct the subject of the offending behaviour in charge KH 2165/2022. 

5. In relation to the charge of stealing (under $1,000) (charge KH 2883/2023) I consider that a fine of $800 is reflective of the seriousness of the offending (when viewed in the context of the other offending on that date), taking into account Mr Gray's personal and mitigating circumstances.  In particular, the circumstances of this offence were serious and Mr Gray had a criminal record.  Any fine must therefore be sufficient to incorporate elements of both general and specific deterrence.  I have given Mr Gray a discount of 25% for his plea of guilty to this offence. 

Conclusion

1. I will make the following orders:

   1.The appellant is granted an extension of time in which to appeal.

   2.Leave to appeal is granted in relation to grounds 2, 3 and 4.

   3.Appeal allowed on grounds 2 and 3.

   4.The sentences imposed on 21 February 2024 for charges KH 2165/22 ‑ KH 2170/22 are set aside and substituted with the following sentences:

   (a)Charge KH 2165/22:  a fine of $100; and

   (b)Charges KH 2166/22 - KH 2170/22: no sentence under s 46 of the Sentencing Act 1995 (WA).

   5.The sentence on 21 February 2024 for charge KH 2883/23 is set aside and substituted with a fine of $800.

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

CH

Associate to Justice Seaward

25 OCTOBER 2024