Henderson v The State of Western Australia - [2007] WASCA 198

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HENDERSON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 198

CORAM: OWEN JA
WHEELER JA
MILLER JA

HEARD: 10 SEPTEMBER 2007

DELIVERED : 28 SEPTEMBER 2007

FILE NO/S: CACR 140 of 2006

BETWEEN: GRANT WILLIAM HENDERSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WAGER DCJ
File No  :IND 686 of 2004

Catchwords:

Sentencing - Aggravated burglary, unlawful detention, assault occasioning bodily harm, stealing - 'Enforcer' case - Series of offences committed in attempt to collect a debt - Whether individual sentences manifestly excessive - Whether totality principle infringed - Relevance of personal circumstances - Aggregate sentence of 4 years

Legislation:

Nil

Result:

Leave to appeal refused on grounds 3 and 4
Leave to appeal granted on grounds 1 and 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr R E Cock QC & Mr C J Henderson

Solicitors:

Appellant: Vincent Partners
Respondent: Director of Public Prosecutions (WA)

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

Lowndes v The Queen [1999] HCA 29
Cook v The Queen [2001] WASCA 16
Drake v the State of Western Australia [2006] WASCA 209
In Iveson v The State of Western Australia [2005] WASCA 25
Mills v The State of Western Australia [2007] WASCA 118
Mourish v The Queen [2006] WASCA 257
Tan v The Queen (Unreported, WASCA, Library No 960188, 1 April 1996)

OWEN JA: The applicant challenges an effective sentence of 48 months' imprisonment imposed on him in the District Court after a jury trial, at the conclusion of which he was convicted of several offences including aggravated burglary, unlawful detention, assault and stealing.
On 7 February 2007 a single judge of this court granted an extension of time to appeal but ordered that the application for leave to appeal and the substantive appeal be heard together.

Background

In early July 2003 the applicant made a loan of $8,000 to two acquaintances, Griffin and Bonser. The latter gave evidence at trial that the loan was part of a drug deal in which all three of them (and others) were involved. The applicant denied any involvement in drug dealing. He said he was aware that the money was being lent to help the complainants avoid some financial trouble and that the purpose was probably unlawful. The complainants were given an immunity certificate in relation to their admitted involvement in drug dealing.
The applicant testified that at the time the loan was made Bonser gave him signed licence transfer papers over a motor vehicle that he (Bonser) owned. There was no other security given for the loan, although there is little doubt that the applicant had an expectation that it would be repaid.
The time by which the applicant expected repayment of the loan passed and repeated attempts by him to contact Griffin had failed. By then the applicant had lost the licence transfer papers he had been given. On 28 July 2003 the applicant, accompanied by one Caisley, drove to Griffin's residence to find out what was happening about the loan. When he arrived, the applicant found that Griffin was moving out of the residence and he became distressed. He said he went alone to confront Griffin and called to him to come outside. Griffin refused. The applicant went inside and punched Griffin once in the head. The applicant announced that he was going to see Bonser. Griffin offered to accompany him.
The applicant got in to Griffin's car but could not start it. Griffin then entered the car and drove the vehicle to Bonser's residence. Caisley followed in his own vehicle. The applicant and Griffin went to the front door of Bonser's residence. They knocked on the door, entered and the applicant hit Bonser once above the right eye. The three of them then started to talk. The applicant demanded the keys to Bonser's vehicle. They (together with Caisley) drove to a public car park and Bonser used a telephone in an attempt to secure sufficient money to repay the debt. When this failed, the licence transfer papers were signed, Bonser and Griffin were returned either to Bonser's residence or to their respective residences (the evidence is unclear) and the applicant left the area driving Bonser's vehicle.
The events of the evening of 28 July 2003 occurred over a period of about three hours.
The applicant testified that he had told Bonser he would not register the licence transfer immediately to give Bonser additional time to repay the loan in cash. In the days that followed, the applicant used the vehicle openly and returned some of Bonser's property that he found in the car. But it was not long before the applicant was told that the police were interested in him and in the whereabouts of the vehicle. He then abandoned the vehicle in Dianella. He was later arrested and charged over these incidents.

The charges

The applicant was charged with several offences arising from the events of 28 July 2003. He pleaded not guilty and faced trial before a jury in the District Court in October 2006. He was convicted of some, but not all, of the offences with which he was charged.

Count 1: aggravated burglary

The events at Griffin's residence resulted in the preferment of a charge of aggravated burglary. The burglary element was constituted by the applicant entering the residence and assaulting Griffin. The circumstances of aggravation were that he was armed (knuckledusters), he was in company with another, he did bodily harm to Griffin, he knew or ought to have known that the place was occupied and that it was used for human habitation.
The applicant was convicted of the offence and of all circumstances of aggravation except being armed and in company. Griffin gave evidence that Caisley accompanied the applicant and that he (Griffin) was struck with a knuckleduster. The verdicts are consistent with the jury not having believed Griffin on those two aspects. But the verdict also indicated that the jury did not accept the defence that the applicant had put forward, namely self defence.

Count 2: kidnapping, alternatively, unlawful detention

The circumstances in which Griffin and the applicant travelled to Bonser's house are the subject of the second count. Griffin testified that the applicant pulled out a hand gun and said 'he was not mucking around'. The applicant denied possessing or producing a gun. The verdict of not guilty of kidnapping but guilty of unlawful detention again suggests the jury had doubts about Griffin's evidence in this respect.

Count 3: stealing a motor vehicle

It seems that Griffin's vehicle 'disappeared', or at least Griffin said he never saw it again. A charge of stealing the motor vehicle was thus preferred against the applicant and he was convicted. The sentencing judge adopted a version of the facts most favourable to the applicant, namely, that he forced Griffin to drive him to Bonser's residence (and thus stole it by unauthorised use rather than with an intention permanently to deprive the owner of property in it).

Count 4: unlawful assault occasioning harm

The punch that the applicant landed on Bonser's head while at the latter's residence resulted in a charge of unlawful assault occasioning bodily harm. The applicant was convicted of this offence. This indicates that the jury did not accept the defence that had been proffered, namely self defence.

Count 5: stealing

Bonser alleged that the applicant entered the residence and took a set of golf clubs, which he put in the boot of the car. The resulting charge of stealing was rejected by the jury.

Count 6: stealing a motor vehicle

The taking of Bonser's vehicle was the subject of a charge of stealing. The applicant raised the defence of honest claim of right. The jury returned a verdict of not guilty, which is consistent with them having accepted the defence.

Counts 7 and 8: kidnapping, alternatively unlawful detention

The trip in the vehicle to the Murdoch University car park was the subject of two counts of kidnapping, alternatively unlawful detention. One related to an offence against Griffin and the other against Bonser. In each instance the jury returned verdicts of guilty of unlawful detention.

Count 9: threat to kill

Bonser gave evidence that after the car park incident, his vehicle was driven to Griffin's residence where Griffin was dropped off. Bonser remained in the car and was threatened with a hand gun and a spear gun and was subjected to a further physical assault at the hands of the applicant. The applicant denied these allegations. They jury acquitted the applicant on this count.

Summary

It is apparent from this brief peregrination that the jury accepted the evidence of the complainants on the essential facts necessary to satisfy the elements of the offences of which the applicant was convicted. But in several important respects it seems the jury was not satisfied to the required standard. Where those matters were relevant in arriving at appropriate sentences, the applicant could not be sentenced on a view of the facts inconsistent with the jury verdicts.

The sentences and the grounds of appeal

The sentencing judge imposed the following sentences of imprisonment:
(a)Count 1:  aggravated burglary (Griffin) - 20 months;
(b)Count 2:  unlawful detention (Griffin) - 16 months concurrent with count 1;
(c)Count 3:  stealing of a motor vehicle (Griffin) - 8 months concurrent with counts 1 and 2;
(d)Count 4:  assault occasioning bodily harm (Bonser) - 12 months cumulative on count 1;
(e)Count 7: unlawful detention (Bonser) - 16 months cumulative on counts 1 and 4;
(f)Count 8:  unlawful detention (Griffin) - 16 months concurrent with count 7.
The effective term was 48 months' imprisonment and the applicant was made eligible for parole on each of the sentences. In the course of pronouncing sentence her Honour rejected a submission that the term should be suspended. I do not understand the applicant to be challenging that aspect of the sentence.
The grounds of appeal are as follows:
(a)Ground 1: each of the sentences was manifestly excessive in all the circumstances of the offending and was outside the range of sentences open to be imposed in the proper exercise of the sentencing discretion;
(b)Ground 2: the total effective sentence of 48 months infringed the totality principle in all the circumstances of the offending and of the applicant;
(c)Ground 3: the sentencing judge erred in law in sentencing the applicant in relation to counts 2, 7 and 8 on a factual basis inconsistent with the finding of the jury;
(d)Ground 4: the sentencing judge erred in law in finding that the previous financial dealings between the applicant and Griffin giving rise to the monies owed to the applicant 'was consistent with financing a drug deal or drug debt'.
Ground 3 requires a little explanation. The offence of kidnapping (the primary allegation in counts 2, 7 and 8), arises from Criminal Code s 332(2)(d): 'Any person who detains another person with intent to - … compel the doing of an act by a person who is lawfully entitled to abstain from doing that act, … by a threat, or by a demand, or by a threat and a demand, is guilty of a crime'. The alternative offence, unlawful detention, is described in s 333: 'Any person who unlawfully detains another person is guilty of a crime'. The gravamen of this ground is that the proper interpretation of the sentencing remarks indicates that the sentencing judge sentenced the applicant as if he had been convicted of kidnapping rather than of unlawful detention.
It will be convenient to deal first with the more specific challenges to the sentencing process (grounds 3 and 4) before dealing with the more general grounds.

Ground 3 – kidnapping or unlawful detention?

In sentencing the applicant on count 2, the sentencing judge said:
Your violence towards [Griffin], I find, intimidated [Griffin]. It was for that reason that your taking of Mr Griffin's car was clearly without his consent because although he ultimately drove, it was due to the physical threat that had already occurred by way of you assaulting him at his premises.
Now, Mr Griffin would not have driven and that was clearly the jury's finding if that violence hadn't occurred and he certainly would not have driven you to Mr Bonser's house. That, I find, is where the conviction in relation to deprivation of liberty arises.
In relation to counts 7 and 8, the sentencing judge recounted the assault on Bonser and made a finding that Bonser had entered the vehicle because demands had been made. Her Honour then said:
The jury found beyond reasonable doubt that you then deprived each of the complainants of their liberty and that you drove them around in Mr Bonser's vehicle.
They did not have a free choice to stay or go and each had been badly beaten before being in the car. On top of that Mr Caisley was also in the car, so it was two on one, effectively in that one was in the front and one was in the back after the violence occurred. I find that the presence of two, the fact of the previous violence and the containment in the vehicle was such that it would have been a threatening and intimidating environment for both of the complainants.
The applicant submitted that these remarks were consistent with him having been convicted of kidnapping, not deprivation of liberty. In my view that does not follow. Certainly, her Honour referred to demands and to the violence. But the admitted reason for going to Griffin's house, and then on to Bonser's residence was to secure repayment of a loan. The 'demands' have to be understood in that context. And the fact that violence was perpetrated against both complainants follows inevitably from the convictions on counts 1 and 4.
In both passages her Honour referred to 'deprivation of liberty' and in the latter to 'a free choice to go or stay'. I do not read the phrase 'a threatening and intimidating environment' as being anything more than an explanation of the situation in which the complainants found themselves. It does not logically follow that her Honour treated 'threats or demands' or 'threats and demands' in the same way as if they were elements of the offences of which the applicant had been convicted.
Senior counsel for the applicant submitted that the sentencing judge had, in effect, used 'threats and demands' as an aggravating factor in imposing a higher sentence in relation to these counts than was justified by the convictions of the lesser offence. For the reasons I have already expressed, I do not accept that submission. If the sentences on counts 2, 7 and 8 are too high, it is for other reasons and not because her Honour erred in considering factual findings inconsistent with the jury verdict.

Ground 4 – the background to the loan

The question raised by the fourth ground is whether the sentencing judge regarded, as a factor aggravating the gravity of the impugned conduct, that the previous financial dealings between the applicant and Griffin were consistent with financing a drug deal or a drug debt. Her Honour could only have done so if she were satisfied beyond reasonable doubt that this were so. In the applicant's submission, this fact was used as an aggravating factor and her Honour could not have been satisfied to the required degree that the factual background was as alleged by the complainants
In my view the contention that her Honour regarded the background to the loan as an aggravating factor cannot be accepted. The remarks referred to by counsel for the applicant have to be taken in context. The full passage reads as follows:
There had been previous financial dealings with [Griffin] and that was consistent with financing a drug deal or a drug debt. It's unclear from the verdict how much you knew about what was happening in their lives but it is clear that you knowingly provided money with no questions and no legitimate security and there was an expectation that you would have return of that money consistent with a financing of that type.
I don't accept that it was a gesture out of the goodness of your heart and that would be inconsistent with your evidence of how the loan occurred.
In my view, there is no warrant for regarding this passage as doing any more than setting the scene for what occurred that evening. There was evidence that the applicant was aware that the complainants needed the money to avoid some financial troubles and that the purpose was probably unlawful. The not guilty verdict on count 6, carrying with it (as it does) the probable acceptance by the jury of the applicant's defence of honest claim of right, would make it difficult to conclude (at least for these purposes) other than that the loan was valid and enforceable. But that finding is not inconsistent with a finding that the loan was made under suspicious circumstances. Something precipitated the unusual turn of events on the evening of 28 July 2003. The fact that the loan was made under suspicious circumstances might well provide an explanation for the turn of events. But it does not lead to the conclusion that the sentencing judge used the existence of suspicious circumstances as an aggravating factor rather than as part of the narrative going to explain the background to offences for which the applicant fell to be sentenced.
The fourth ground has not been made out. This conclusion makes it unnecessary to consider whether the sentencing judge could have been satisfied beyond reasonable doubt that the background to the loan was as claimed by the complainants.

Ground 1 – manifestly excessive sentences?

The question raised by the first ground of appeal is whether the sentences imposed for each count were manifestly excessive and outside the range of sentences to be imposed in the proper exercise of a sentencing discretion.
In the sentencing remarks, her Honour recounted the facts in a way that (save for the matters I have already mentioned) does not call for comment. She then referred to the victim impact statement lodged by Bonser in which he said he was terrified and had been reliving the incidents daily since their occurrence. Her Honour made these comments about the applicant's personal circumstances:
(a)he was 27 years of age at the time of the offences (30 when sentenced) and had no prior record;
(b)he had some technical qualifications and an excellent employment record;
(c)while he had experienced bouts of depression, his health was generally good; and
(d)he had enjoyed family support and encouragement and was in a long term relationship that was stable and continuing.
The sentencing judge noted that a large number of references had been tendered from the applicant's partner and members of her family, members of the applicant's own family, personal friends and people with whom he had been involved through his employment. Her Honour noted that the reference writers were all 'prepared to make comment in relation to [the applicant's] character to the court'.
It is apparent from the sentencing remarks that her Honour was primarily concerned with the nature and seriousness of the offending. The following extracts illustrate the point:
The whole episode took a number of hours and the effect of that sort of violence, threat, vigilantism, as it has been described by the state, was significant on the complainants. … [T]his type of offending has [a] significant [impact] on victims, and it's for that reason that the law takes it so seriously; because individuals in our community are allowed to carry on their lives without threats. If there is an obligation to repay money, there is a lawful way of doing it. Vigilantism and violence does not lead to that result.

At the sentencing hearing counsel for the applicant had submitted that if a term of imprisonment were to be imposed it should be suspended. Her Honour rejected the submission and indicated that an immediate term of imprisonment was the only appropriate option:
The reason for that is because the community must know that if people carry on in this way, they will be punished and they will be punished hard by immediate terms of imprisonment. It wasn't a one off event. There were, in my view, three courses of conduct in that night. It wasn't one bad decision; it was deliberate conduct that may well have escalated as the night went on but it did proceed and the offences followed one after the other.
The conclusions contained in the last three sentences of that passage are significant for the resolution of the appeal. There were three incidents but together they form a course of conduct that continued for an extended period. The applicant did not simply make a single bad decision. Having set out on the assignment he made one bad decision (at Griffin's residence), another (at Bonser's residence) and yet another (the events after leaving Bonser's residence). It is clear that these considerations had a significant impact on her Honour's thinking. I find it difficult to find fault with that approach.
Counsel for the applicant submitted that the sentences were manifestly excessive because her Honour gave too much weight to the aspect of violence and failed to give proper weight to a number of factors personal to the offender.
Counsel submitted that, on the state of the evidence, the applicant was entitled to be sentenced on the basis that in both instances (that is, at the residence of Griffin and later at the residence of Bonser) he threw only one punch. That may be so, but considerable damage can be done by one punch. And the blow on Bonser was delivered with sufficient force to result in the applicant himself sustaining a broken finger. In any event, her Honour presided over the trial and had the peculiar advantage of assessing the level of violence and making a determination on it. The jury found that each of Griffin and Bonser had suffered bodily harm. Her Honour expressed the conclusion that Griffin and Bonser had been 'badly beaten'. This is not inconsistent with the jury's verdict and was an assessment that her Honour was, in my view, in a position to make.
It was also submitted that the gravity of the burglary offences was at the lower end of the scale because it resulted from an 'open but uninvited' entry into Griffin's residence. I am not sure that this takes the matter very far. The fact is that the applicant travelled to the premises for the express purpose of confronting people and recovering a debt. It may be, as the applicant contends, that there was no premeditation in the sense that he did not go there for the express purpose of assaulting his debtors and stealing their property. But he set out on a course in which confrontation was likely and that is what happened.
If the only consideration were the seriousness of the offending (and thus ignoring or giving little weight to factors personal to the applicant), I do not think that the sentences of 20 months and 12 months on counts 1 and 4 respectively are beyond the range of appropriate sentences.
I reach the same conclusion about the sentences of 16 months for each of the three unlawful detention counts. They were part of a sustained course of conduct stretching over a period of about three hours and were predicated on a situation of violence and intimidation. I can see no reason to interfere with her Honour's assessment of the relative gravity of those offences. For similar reasons, I think the 8 month sentence on the stealing charge is unimpeachable. In saying that I acknowledge that her Honour's assessment of the jury verdict was that it involved theft by use rather than an intention permanently to deprive the owner of property in the vehicle.
I now turn to the more difficult question of the applicant's antecedents and whether her Honour gave them sufficient weight. Many of the references tendered on behalf of the applicant, and the letter that he addressed to her Honour for the purposes of sentencing, attest to the fact that violence was out of character for him and that the entire episode was an aberration. Counsel for the applicant submitted that this was something that her Honour overlooked. While she mentioned the references, her Honour did not say that she regarded them as attesting to 'good' character and nor did she avert to the consideration that violence was not part of the applicant's nature and that the episode was an aberration.
In my view there is nothing in the point that her Honour failed to mention that the references attested to the 'good' character of the applicant. It is not usual for an offender or those representing him to procure and tender material that shows the offender in a bad light. In the sentencing process, character evidence can be important and if references are tendered a sentencing judge is obliged to give them serious consideration. But the judge is not bound to accept what a referee says about the offender and must assess whatever he or she does accept against, or in the light of, other relevant factors.
Sentencing remarks have to be read in their entirety and the overall sense gleaned from what is contained in them. The remarks would become inordinately long and the sentencing process unworkable if appellate courts were to pick over the text and demand that every conceivable factor be mentioned specifically and in minute detail. In the end, the question is whether relevant factors were considered, irrelevant factors avoided and due weight given to necessary materials. Applying that process to these remarks, the sense is that her Honour did have regard to the character references and, accordingly, would have been aware that the applicant was not, by nature, a violent person.
In seems clear, although it is not expressed in these words, that her Honour reached the view that the primary sentencing considerations were the gravity of the offences and the need for a deterrent penalty. Her Honour must have formed the view that the applicant's good antecedents did not outweigh those factors. The question for this court is whether her Honour was entitled to reach that view.
The present appeal is an example of what has become known as the 'enforcer' cases. In Tan v The Queen (Unreported, WASCA, Library No 960188, 1 April 1996) an offender went to a house, in company with others to collect drug debt. Violent offences were committed in the process. The sentencing judge described the offences as 'enforcer‑type crimes' involving standover tactics and 'a gangland style of crime' that would not be tolerated by the community. The offender, a 20‑year‑old, sought leave to appeal against a sentence of 5 years' imprisonment. In refusing leave to appeal, Heenan J said (6 ‑ 7):
The seriousness of the offences is such that the youth and antecedents of the applicant are of secondary consideration when seen against the need for protection of the community. In the circumstances a deterrent penalty clearly was required. [emphasis added]
Murray J took a similar view (7 ‑ 8):
It seems to me that the capacity in those circumstances of the offender's mitigating personal circumstances to reduce or modify what would otherwise be an appropriate and proportionate punishment is strictly limited. [emphasis added]
These remarks have been repeated and adopted in more recent cases: see for example, Drake v the State of Western Australia [2006] WASCA 209 [53] ‑ [59], where the terminology is that 'the need for a deterrent sentence leaves little room for personal circumstances which would modify what would otherwise be an appropriate sentence' [emphasis added].
While I would not for one moment cavil with the comments in these cases, anything that impinges on the breadth of the sentencing discretion has to be approached with care. The judges in those cases did not say that the personal circumstances of the offender are irrelevant and ought to be disregarded. To take that approach would be quite wrong. It would offend the basic principle that a judge is sentencing the individual offender then before the court for the specific offences for which that offender has been convicted.
Properly understood, comments of the type to which I have referred mean no more than that the aggravating effect of the seriousness of the offending, coupled with the need for condign punishment and the need for general or personal deterrence will be given greater weight (usually considerably greater weight) than will the mitigating effect of personal factors. But they do not mean that personal factors are never to be taken into account and nor do they mean that, in an appropriate case, those mitigating factors might still be seen as noteworthy.
In Mills v The State of Western Australia [2007] WASCA 118, for example, the offender was described as 'an enforcer'. One of the grounds of appeal was that the sentencing judge had failed to give proper weight to personal circumstances. It was accepted that the offender had entered into a stable relationship with a woman who had a young child and they were dependent on him. He had also undergone re‑education and had good prospects of employment on his release from custody. In that case Miller JA [77] acknowledged that a deterrent sentence was of paramount importance but found, nonetheless, that the sentencing judge had not taken sufficient account of matters personal to the offender. McLure J [19] (with whom Steytler P agreed) also mentioned personal circumstances. The appeal was allowed. I am not suggesting that the facts in Mills are directly comparable with the facts in this case. I mention it only to show that even in enforcer cases personal circumstances can be taken into account.
The personal circumstances of the applicant have at least one feature that often creates difficulties when a court comes to deal with an offender who has not previously been visited with a custodial sentence. The applicant is 30 years of age. He cannot, therefore, appeal for leniency on the basis that raw youth and immaturity led him to make a single mistake. But although the applicant does not have the benefit of youth, he is still a young man. He is a person who has no relevant prior record of offending and he has never before been imprisoned. His past employment history is impressive. He now faces the reality that when he is released from custody his future prospects will be diminished. He will carry the opprobrium of having been found guilty of offences of such magnitude that they warranted a term of imprisonment.
I accept unreservedly that the applicant is responsible for this situation. It is a direct and inevitable result of his own conduct. He has no one else to blame and is the author of his own misfortune. Nonetheless, it will live with him for many years into the future. In my view it is open to a sentencing judge, in dealing with an offender who has not previously been sentenced to a custodial term, to consider whether ongoing consequences of the type I have mentioned might justify the imposition of a shorter term than would otherwise have been meted out. If a consideration of that nature does arise, it becomes one of the myriad factors that go into the factual matrix on which the discretion falls to be exercised.
What, then, is the result of a balancing exercise that weighs the seriousness of these offences, the paramount need for a deterrent element in enforcer cases and the personal circumstances of the applicant, including the on‑going consequences of the fact that he has been sentenced to imprisonment?
The only case to which the court was referred for comparison purposes was Drake. There, the offender and another man went to premises to collect a debt. They forced their way in and the offender hit the first complainant with a bedside lamp, causing a laceration near the left eye that required stitches. The offender left the premises but immediately returned and punched the complainant again. They then went to other premises, broke down a door and assaulted a second complainant, as a result of which he sustained injuries to his nose, left eye, left ear, lip and jaw. The offender was charged with two counts of aggravated burglary and one of assault occasioning bodily harm on the first complainant and one count of burglary and one of assault occasioning bodily harm on the second complainant.
The offender pleaded guilty on the fast track system. She was sentenced to 26 months for each of the aggravated burglaries and 10 months for each of the assaults. Some of the terms were made concurrent resulting in an aggregate term of 32 months. On appeal the aggregate sentence was reduced to 26 months because insufficient allowance had been made for a fast track guilty plea. But it is to be noted that grounds of appeal alleging that the individual sentences were manifestly excessive failed. Accordingly the sentences for the aggravated burglaries (26 months reduced to 22 months for the guilty plea) and for the assaults (10 months) give little support to the challenges in this appeal against the terms imposed on counts 1 and 4.
In Mourish v The Queen [2006] WASCA 257 the court conducted a review of the sentencing range for the offence of assault occasioning bodily harm: see, in particular, McLure JA [12]. The sentence imposed in that case was 2 years, suspended for 2 years. Steytler P [1] described that term as not outside, but at the very top end of, an acceptable range. In my view there is nothing in that review to suggest that terms of 12 months (in the circumstances of this case) are outside the appropriate range.
It is not easy to make comparisons for the offence of unlawful detention because, like crimes such as manslaughter, it covers a broad spectrum of factual possibilities. Many of these cases are associated with sexual offences. I will not mention cases of that type because I think they raise quite different considerations. In Cook v The Queen [2001] WASCA 16, during the course of an armed robbery the offender detained the sole occupant of the premises and bound her wrists with tape to prevent her escaping while he collected money. A sentence of 2 years (16 months under the present sentencing regime) for the unlawful detention (part of an overall term of 6 years and 5 months) following a guilty plea was left undisturbed. In Iveson v The State of Western Australia [2005] WASCA 25 the offender, in breach of a Violence Restraining Order, went to the residence of a former partner and assaulted her. She tried to escape but the offender stopped her at the front door and closed the door. He then assaulted her again. He was charged with one count of unlawful detention, two of assault occasioning bodily harm and one breach of a restraining order. The sentence imposed for the unlawful detention was 2 years (as part of an aggregate sentence of 4 years and 10 months). The offender's application for leave to appeal against the sentence was rejected.
In my view, taking into account all of the circumstances (including personal factors), individual sentences of 20 months for aggravated burglary (including the infliction of bodily harm), 16 months for unlawful detention, 12 months for assault occasioning bodily harm and 8 months for stealing are not manifestly excessive. The sentences for aggravated burglary and unlawful detention may be seen as high, but they are not outside a justifiable range.
It follows that ground 1 has not been made out.

Ground 2 – the totality principle

I turn, finally, to the question of totality. The import of the totality principle is not in dispute. It means that a sentencing judge who is imposing a series of sentences must calculate the sentence for each offence and must then stand back and take one last look to ensure that the aggregate sentence is proportionate to the criminality of the offences and is, in all of the circumstances, just and appropriate.
The question here is whether an aggregate effective sentence of 4 years is just and appropriate in all of the circumstances. The discussion on ground 1 included detailed consideration of the overall criminality of the offences and I do not wish to repeat what is there said. In pronouncing the sentences her Honour said:
Taking into account all of these factors, I consider the appropriate sentence is as follows: in relation to count 1, the aggravated burglary, under the previous law where remissions applied a sentence of two years six months would be imposed and that is reduced to [20] months; in relation to count 2, the unlawful detention, under the previous law two years' imprisonment was appropriate so a sentence of 16 months concurrent is imposed; in relation to the stealing of the motor vehicle, count 3, under the old law 12 months' imprisonment would have been appropriate so a sentence of eight months' imprisonment concurrent is imposed. So in relation, effectively for what happened at Mr Griffin's home, it's a term of [20] months.
So far as the assault occasioning bodily harm on Mr Bonser is concerned, and that is count 4, I impose a cumulative term. That under the old law would have been 18 months; it is reduced to one year. For the deprivations of liberty I consider that a cumulative term must also be imposed but each term will be concurrent on each other and those terms have, in my assessment, been reduced because of the totality that you must serve. So for each of those a sentence of two years' imprisonment is imposed and that is then - under the old law, reduced to 16 months.
That is cumulative, as I say, in respect of count 7 but concurrent in respect of count 8. That gives a total of four years' imprisonment. [emphasis added]
On the face of the sentencing remarks, her Honour did have regard to the totality principle but it is not entirely clear how she did so. If the phrase that I have emphasised is read strictly it seems that her Honour reduced the length of the terms she would otherwise have imposed for counts 7 and 8. But there is no indication of the magnitude of the reduction and nor is it said that any other sentences have been adjusted or made concurrent so as to effect a just and appropriate aggregate sentence. It may be that a fair reading of the emphasised passage leads to the conclusion that her Honour reduced the length of the terms for counts 7 and 8 and made them concurrent for totality reasons.
In any event, it comes back to the same question: is the aggregate sentence of 4 years too much? I have already referred to Drake. In that case the aggravated burglary and the assault might be regarded as being of greater severity than the comparable offences here. But in Drake there were no incidents of unlawful detention and it was a fast track guilty plea. In those circumstances the total aggregate sentence of 26 months imposed in Drake for a lesser number of offences provides little support for the contention that the aggregate of 4 years imposed on the applicant is outside the appropriate range.
It would have been open to her Honour to make the all sentences involved in the Griffin escapade concurrent and all sentences involved in the Bonser incidents concurrent but the two sets cumulative on one another. This would have given an aggregate sentence of 3 years. But her Honour did not do so. As Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 reminds appellate judges, the discretion that the law commits to sentencing judges is of vital importance in the administration of the criminal justice system and its integrity must be protected. The reviewing court must not substitute its own opinion for that of the sentencing judge merely because its members would have exercised the discretion differently. I cannot discern error in the way that her Honour arrived at the sentence. Nor am I persuaded that the aggregate sentence is so high that it, in itself, demonstrates a contravention of the totality principle.

Ground 2 has not been made out.

Conclusion

I would refuse leave to appeal on grounds 3 and 4 but I would grant leave on grounds 1 and 2. Despite the grant of leave I would dismiss the appeal.

WHEELER JA: I agree with Owen JA.
MILLER JA: I agree with Owen JA.