Jetter v The State of Western Australia

[2021] WASCA 80

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   JETTER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 80

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   16 FEBRUARY 2021

DELIVERED          :   16 FEBRUARY 2021

PUBLISHED           :   7 MAY 2021

FILE NO/S:   CACR 120 of 2020

BETWEEN:   ANTHONY RICHARD JETTER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GLANCY DCJ

File Number            :   IND 741 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of three counts - Two offences of sexually penetrating a child of or over the age of 13 years and under the age of 16 years contrary to s 321(2) of the Criminal Code (WA) - One offence of unlawfully doing grievous bodily harm contrary to s 297(1) of the Code - Manifest excess - Totality

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 297(1), s 321(2)
Sentencing Act 1995 (WA), s 76(3)(b), s 81(3)(b)

Result:

Leave to appeal granted on grounds 1 and 2
Appeal allowed
Sentences imposed by the primary judge set aside
Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant	:	Mr D Brunello
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Brand v The State of Western Australia [2011] WASCA 269

Buckley v The State of Western Australia [2015] WASCA 242

Deering v The State of Western Australia [2007] WASCA 212

Gleeson v The State of Western Australia [2019] WASCA 100

GNR v The State of Western Australia [2015] WASCA 5

Greenfield v The State of Western Australia [2019] WASCA 29

Law v The Queen [2019] WASCA 81

Lee v The State of Western Australia [2018] WASCA 156

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Pallister v The State of Western Australia [No 2] [2015] WASCA 221

Poulton v The State of Western Australia [2008] WASCA 97

Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

Sunfly v The State of Western Australia [2009] WASCA 22

Tapper v The State of Western Australia [2016] WASCA 140

The State of Western Australia v Cairns [2006] WASCA 178

The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228

YDN v The State of Western Australia [2018] WASCA 62

JUDGMENT OF THE COURT:

1. This is an appeal against sentence.

2. The appellant was charged on indictment with three counts of offending against a female child.

3. Count 1 alleged, in essence, that on 28 August 2019, the appellant sexually penetrated the complainant, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, contrary to s 321(2) of the Criminal Code (WA) (the Code).

4. Count 2 alleged, in essence, that on a date unknown between 27 August 2019 and 31 August 2019, the appellant sexually penetrated the complainant, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, contrary to s 321(2) of the Code.

5. Count 3 alleged, in essence, that on 30 August 2019, the appellant unlawfully did grievous bodily harm to the complainant, contrary to s 297(1) of the Code.

6. The maximum penalty for each of counts 1 and 2 is 14 years' imprisonment.  The maximum penalty for count 3 is 10 years' imprisonment.

7. On 4 August 2020, the appellant was convicted, on his pleas of guilty, of the charged offences.

8. The three offences were committed during a four day period between 28 and 31 August 2019.  At the time, the complainant was aged 15 years 11 months and 1 week and the appellant was aged 44.

9. On 4 August 2020, Glancy DCJ sentenced the appellant to individual terms of immediate imprisonment as follows:

   (a)count 1:  2 years 6 months;

   (b)count 2:  2 years 6 months; and

   (c)count 3:  3 years.

10. Her Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 3 and that the sentence for count 2 be served concurrently with the sentence for count 3.  The total effective sentence was therefore 5 years 6 months' imprisonment.  The total effective sentence was backdated to 30 August 2019.  A parole eligibility order was made.

11. The appellant relied upon two grounds of appeal.  Ground 1 alleged, in effect, that the sentence of 2 years 6 months' immediate imprisonment for each of counts 1 and 2 was manifestly excessive.  Ground 2 alleged, in effect, that the total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle.

12. The State conceded that the sentence of 2 years 6 months' imprisonment for each of counts 1 and 2 was manifestly excessive as to length (but not as to type).  The State acknowledged that if the court accepted the concession of manifest excess in relation to the sentences for counts 1 and 2, it would be unnecessary for the court to consider ground 2.  The court would wholly re-exercise the sentencing discretion in relation to the appellant.

13. On 16 February 2021, at the conclusion of the hearing of the appeal, the court made orders as follows:

    1Leave to appeal granted on grounds 1 and 2.

    2Appeal allowed.

    3The sentences imposed by the primary judge and the orders for cumulacy and concurrency made by her Honour are set aside.

    4The appellant is resentenced as follows:

    (a)        count 1:  3 months' immediate imprisonment;

    (b)        count 2:  6 months' immediate imprisonment; and

    (c)        count 3:  2 years 9 months' immediate imprisonment.

    5The new sentence for count 1 is to be served cumulatively upon the new sentence for count 3.  The new sentence for count 2 is to be served concurrently with the new sentence for count 3.

    6The new total effective sentence is therefore 3 years' immediate imprisonment.

    7The new sentences for counts 2 and 3 and the new total effective sentence are to be taken to have taken effect on 30 August 2019.

    8The appellant is eligible for parole.

1. When making those orders the court said that reasons for judgment would be published at a later date.  These are the reasons.

The facts and circumstances of the offending

1. In the early afternoon of 28 August 2018, the appellant and the complainant were in central Perth.

2. The complainant and the appellant were unknown to each other.  The complainant approached the appellant and suggested that they consume drugs together.  The appellant assumed that the complainant was aged 18.

3. The complainant and the appellant went to a stairwell in a carpark building in Queen Street.  The complainant and the appellant had sexual intercourse while they were in the stairwell (count 1).  The complainant was a willing participant.

4. Later on 28 August 2018, the complainant and the appellant travelled together by train to a house in Midland where the appellant was staying.  The house belonged to the appellant's aunt.

5. Between the evening of 28 August 2018 and noon on 30 August 2018, the complainant stayed at the Midland house with the appellant.

6. During that time, the complainant and the appellant went to a bedroom which the appellant was using.  They watched pornography together on a television in the bedroom.  The complainant and the appellant then had sexual intercourse (count 2).  The complainant was a willing participant.

7. At about noon on 30 August 2018, the appellant and his aunt asked the complainant whether she knew anything about the recent death of the aunt's brother as a result of a drug overdose.  The complainant laughed in response.  The aunt slapped the complainant's face twice.  The appellant then approached the complainant with a baseball bat.  He swung the bat twice at the complainant.  He struck her once on her upper left arm and broke the arm (count 3).

8. The complainant abandoned her belongings in the house and ran out of the house screaming for help.  The appellant followed her.  A neighbour intercepted the complainant and telephoned the police.  Shortly after, the police arrived and arrested the appellant.

9. The complainant went to a hospital.  Her left humerus bone was fractured.  Surgery was required.  Her treatment involved open reduction and internal fixation of her left humerus and the application of a brace.  Without treatment, the injuries were of such a nature as to cause or be likely to cause permanent injury to her health as a result of the malunion of the fracture.

10. After he was arrested, the appellant was taken to a police station.  The appellant participated in an electronically recorded interview with police.  He admitted having had consensual sexual intercourse with the complainant, once in central Perth and once at the house in Midland.  The appellant said that the complainant appeared to him to be aged over 18 years.  The appellant also admitted striking the complainant with a baseball bat and breaking her arm.

The sentencing judge's sentencing remarks

1. The sentencing judge recounted the facts and circumstances of the offending and noted the maximum penalty for each of the counts.

2. The appellant was born to very young parents.  He was, in effect, adopted by his mother's older sister.

3. The appellant grew up in Carnarvon in a loving environment with three younger sisters.  He maintained contact with his biological parents and their other children.  His adoptive mother died when he was in his 20s.  The appellant then moved to Perth to be closer to his biological parents.

4. The appellant completed his schooling in Carnarvon.  He excelled at sport.  However, the appellant was bullied by other children.  When he retaliated he was disciplined by the teachers.  The appellant left school in year 11.  He worked for some time on a station before leaving school.  He has undertaken some traineeships and completed a certificate in civil construction and engineering.  However, the appellant has not worked since leaving school.

5. The information before her Honour included a psychological report dated 4 July 2020 from a clinical psychologist, Ms Tina Marley.

6. The report records that the appellant was sexually assaulted by a relative when he was a child and that he considers the assault has caused ongoing problems in his life and explains his offending behaviour and his poor capacity to manage stress.  During his 20s, the appellant experienced suicidal ideation and engaged in 'deliberate self‑harm attempts'.  He has a problem with substance abuse.  He has never undertaken any programs or rehabilitation with a view to addressing that problem.  Since the age of about 22 the appellant has used methylamphetamine.  The appellant has an 18 year old daughter and a 9 year old son.  He has limited contact with his children.  However, there has been some improvement recently in his relationship with his daughter.

7. The sentencing judge noted other features of Ms Marley's report as follows:

   (a)Ms Marley's report '[made] clear that [the appellant was] not someone with a sexual interest in children'.

   (b)The appellant told Ms Marley that he had assaulted the complainant with the baseball bat because he believed that she had contributed to the death of his aunt's brother from a drug overdose. 

   (c)The appellant was disgusted with the fact that he had sexual intercourse with a 15 year old girl.

   (d)Although he was disgusted by his sexual offending, the appellant was not especially troubled by having struck the complainant with the baseball bat.  He regarded this violence as a normal response to negative emotions.

   (e)The appellant has antisocial coping strategies; in particular, resorting to illicit drugs and crime.  He is irresponsible and impulsive.

   (f)The appellant requires treatment and counselling in relation to his drug use and violence.  However, it is not necessary for the appellant to participate in a sex offender treatment program.

   (g)The appellant is at an average risk of committing future sexual offences because of his impulsivity, his disregard for the needs of other people and his unaddressed drug abuse.

   (h)The appellant is at a high risk of committing future offences involving violence because of his background, his history of resorting to violence and his attitude to violence.

8. The appellant has a prior criminal record.  Her Honour observed that he did not have any convictions for sexual offending.  However, the appellant's record demonstrated that he had a persistent disregard for the law and a history of using violence.

9. The sentencing judge said that the criminality of the appellant's sexual offending was reduced by several factors.  The victim was not coerced into the offending.  Rather, the complainant 'initiated the contact'.  Her Honour concluded that 'the whole circumstances [cannot] be seen as corrupting [the complainant]' even though 'she was too young to consent at law' to the sexual intercourse.  The complainant was 'close to being of the age of consent'.  She had told the appellant that she was aged 18.  Her physical development, which her Honour said was apparent from photographs of the complainant on the prosecution brief, was not 'such that caused [the appellant] to doubt' that she was aged 18.  Her Honour concluded in relation to the sexual offending that the offending '[was not] corrupting and was engaged in willingly by [the complainant]' and that those factors '[decreased] the [appellant's] moral culpability for that offending'.

10. By contrast, her Honour said that there were several factors which increased the seriousness of the offence of unlawfully doing grievous bodily harm.  First, the complainant was young and 'quite vulnerable being in a home with [the appellant], someone who was effectively a stranger to her'.  Secondly, the injury suffered by the complainant was serious.  The injuries required surgery, but they were not injuries 'at the higher end of the scale of seriousness of injuries that come before the court when people are convicted of offences of [unlawfully] doing grievous bodily harm'.  Thirdly, the appellant used a weapon, namely the baseball bat, to strike the complainant.  He swung the bat at her twice.  The second swing caused the injury.

11. The sentencing judge acknowledged that there were a number of mitigating factors.  First, the appellant pleaded guilty at the earliest reasonable opportunity.  Secondly, the appellant cooperated with the police and made admissions in relation to the offending.  Thirdly, the appellant was remorseful 'at least for the sexual offending, which [caused him] to feel revolted by [his] actions'.  There was, however, 'a question about [his] remorse for the violence'.  Fourthly, the appellant's personal background 'perhaps also mitigates somewhat'.

12. Her Honour allowed the appellant a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence she would otherwise have imposed for each offence.

13. The sentencing judge described the 'gravamen' of the appellant's sexual offending as follows:

    [H]aving only just met [the complainant] in the carpark and not really knowing anything about her, [the appellant did not] do more to ascertain her age before [he] embarked on the sexual activity with her.

14. Her Honour characterised the sexual offending as 'falling at the lower end of the scale of seriousness for offending of this type'.

15. However, the sentencing judge regarded the offence of unlawfully doing grievous bodily harm as serious.  Her Honour said that the appellant 'showed no concern [for the complainant's] welfare and [he was] quite happy to respond to what [he] saw as an affront to the memory of [the deceased] by picking up a weapon and acting violently towards her'.

The appellant's submissions

1. Counsel for the appellant submitted that the sentencing judge's comment that the appellant should have done more to ascertain the complainant's age had 'an air of unreality about it'.  Both the appellant and the complainant were indigent, homeless and drug-affected.  The complainant approached the appellant on the street and suggested that they consume drugs together.  They were strangers.  The complainant looked older than her actual age.  The appellant enquired about her age and she misled him.  The appellant had no reason to doubt the complainant's statement as to her age.

2. In all the circumstances, the length of the sentence for each of counts 1 and 2 was more than merely 'high'.  The length of each sentence was unreasonable or plainly unjust.

3. Counsel contended that it would have been 'well within the appropriate exercise of discretion to have imposed non-custodial sentences for counts 1 and 2', but acknowledged that suspended or conditionally suspended imprisonment for those offences could not be imposed because a term of immediate imprisonment had been imposed for count 3. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act.

4. Counsel accepted that count 3 was 'clearly deserving of a significant term' of immediate imprisonment.  However, it was submitted that the individual sentences for counts 1 and 2 should have been ordered to be served concurrently with each other and concurrently with the individual sentence for count 3.  Her Honour's order for accumulation resulted in a total effective sentence that was 'a substantial wrong'.

The State's submissions

1. As we have mentioned, the State conceded that the sentence for each of counts 1 and 2 was manifestly excessive as to length.

2. Counsel for the State submitted that while the sexual offending 'fell at the low end of seriousness', the sentences imposed had to reflect one of the policy reasons underpinning the offence in question; namely, that children must be protected from themselves.

3. Counsel noted two particular aspects of the sexual offending.  First, the very substantial age disparity between the appellant and the complainant.  Secondly, the complainant was especially vulnerable being, like the appellant, indigent, homeless and a drug abuser.

4. According to counsel, the 'diminished seriousness of the offending the subject of the sex offences' should be accommodated by reducing their length and by the application of the totality principle.

5. Counsel submitted that the offending the subject of count 3 was serious and, if this court allowed the appeal and proceeded to resentence the appellant, the court should reimpose the sentence of 3 years' immediate imprisonment imposed by her Honour.

6. It was also submitted that, on any resentencing, there should be 'some degree of accumulation' of the sentences for the sexual offences upon the sentence for unlawfully doing grievous bodily harm.

The merits of the appeal

1. The general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly excessive are well established.  See, for example, Gleeson v The State of Western Australia.[1]  Similarly, the general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established.  See, for example, Greenfield v The State of Western Australia.[2]  It is unnecessary to repeat the applicable principles.

   [1] Gleeson v The State of Western Australia [2019] WASCA 100 [57] ‑ [64] (Buss P, Mazza & Mitchell JJA).

   [2] Greenfield v The State of Western Australia [2019] WASCA 29 [24] ‑[26] (Buss P, Mazza JA & Hall J).

2. The applicable maximum penalty for each of the appellant's offences of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code, is 14 years' imprisonment. See s 321(7)(a) of the Code.

3. The absence of 'consent' in fact by the child is not an element of the offence created by s 321(2). Also, 'consent' in fact by the child is not a defence.

4. The public policy and purpose underlying s 321(2) is not only to protect children from abuse by sexual predators, but also to protect children from themselves. See Deering v The State of Western Australia;[3] GNR v The State of Western Australia.[4]

   [3] Deering v The State of Western Australia [2007] WASCA 212 [17] (Wheeler JA; Owen & Miller JJA agreeing).

   [4] GNR v The State of Western Australia [2015] WASCA 5 [61] (McLure P; Buss & Mazza JJA agreeing).

1. In Deering, Wheeler JA observed, in the context of s 321(2):

   It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people 'from themselves'.

   However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v R [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney-General, that ' … the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability [17] ‑ [18].  (emphasis added)

2. In Riggall v The State of Western Australia,[5] Wheeler JA (Buss JA agreeing) cited that passage in Deering.  Later in her reasons in Riggall, Wheeler JA reiterated that the presence or absence of an element of 'abuse' is of considerable importance in sentencing for offences of the kind created by s 321(2). Her Honour then said:

   The greater the element of abuse, generally evidenced by matters such as significant disparity in age, or use of force, or other types of pressure, or grooming behaviour, the greater the criminality [48]. (emphasis added)

   [5] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [19].

3. Parliament decided that the conduct referred to in s 321(2) of the Code should be a criminal offence, notwithstanding that the accused person had an honest and reasonable (but mistaken) belief as to the child's age, unless, relevantly, the accused person was not more than 3 years older than the child. See s 321(9) and (9a) of the Code. Further, Parliament decided that the conduct referred to in s 321(2) of the Code should be a criminal offence, notwithstanding that the child was very close to the age of consent. The courts must give effect to Parliament's policy.

4. However, free and voluntary 'consent' by the child is not irrelevant in sentencing an offender who has committed an offence against s 321(2), but its relevance and weight will vary considerably, depending upon the particular facts and circumstances. See Riggall [22].

5. Similarly, the fact that the child was very close to the age of consent is not irrelevant in sentencing an offender who has committed an offence against s 321(2), but its relevance and weight will vary considerably, depending upon the particular facts and circumstances.

6. In The State of Western Australia v SJH,[6] Wheeler JA made these observations about the circumstances in which proved absence of 'consent', absence of evidence concerning 'consent', and proved free and voluntary 'consent' may be an aggravating, neutral or mitigating factor:

   Proved absence of consent or, particularly, knowledge of absence of consent is aggravating:  Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory [69].

   [6] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228.

7. The policy and purpose of protecting children from themselves, in the sense explained by Wheeler JA in Deering [17], is not confined to children under the age of 16 who, in fact, have little or no sexual experience. See Tapper v The State of Western Australia.[7]

   [7] Tapper v The State of Western Australia [2016] WASCA 140 [84] (Buss P; Mazza & Mitchell JJA agreeing).

8. There is no tariff for sexual offending (including, in particular, offending against s 321(2)) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.

9. We have examined numerous cases of offending against s 321(2) including Deering; Riggall; Poulton v The State of Western Australia;[8] Sunfly v The State of Western Australia;[9] SJH; Brand v The State of Western Australia;[10] GNR; Pallister v The State of Western Australia [No 2];[11] Buckley v The State of Western Australia;[12] and Tapper, and the cases referred to in those decisions.  It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases.  There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

   [8] Poulton v The State of Western Australia [2008] WASCA 97.

   [9] Sunfly v The State of Western Australia [2009] WASCA 22.

   [10] Brand v The State of Western Australia [2011] WASCA 269.

   [11] Pallister v The State of Western Australia [No 2] [2015] WASCA 221.

   [12] Buckley v The State of Western Australia [2015] WASCA 242.

10. In the present case, the appellant's culpability in relation to the sexual offending was ameliorated by the following:

    (a)the appellant's pleas of guilty at the earliest reasonable opportunity;

    (b)the appellant's cooperation with the police and his admissions in relation to the offending;

    (c)the appellant's remorse for the offending;

    (d)to some extent, the appellant's personal circumstances and antecedents;

    (e)the appellant's honest belief that the complainant was aged 18 and the absence of any reason for him to doubt that the complainant was of that age;

    (f)the complainant was very close to the legal age of consent, namely 16 years;

    (g)the complainant was a willing participant in the acts of sexual intercourse; and

    (h)on the sentencing judge's unchallenged finding, the appellant did not have a sexual interest in children and it was not necessary for the appellant to participate in a sex offender treatment program.

11. However, on the other hand, there was a very substantial age disparity between the appellant and the complainant.  The complainant was especially vulnerable because, like the appellant, she was indigent, homeless and a drug abuser.  In those circumstances, the public interest which underpins the offence in question required that the appellant obtain some reliable confirmation (apart from the complainant's assertion) as to her age before engaging in sexual intercourse with her.

12. After taking into account:

    (a)the maximum penalty for the sex offences;

    (b)the facts and circumstances of the offending;

    (c)the complainant's vulnerability;

    (d)the standards of sentencing customarily observed;

    (e)all mitigating factors; and

    (f)all other relevant sentencing factors,

    we are of the opinion that the individual sentence of 2 years 6 months' immediate imprisonment for each of counts 1 and 2 was unreasonable or plainly unjust.

13. Ground 1 of the appeal has been made out.

14. Different and significantly lower sentences of imprisonment should have been imposed on counts 1 and 2. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

15. It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, two of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced.  See, for example, McGarry v The Queen;[13] The State of Western Australia v Cairns;[14] Sathitpittayayudh v The State of Western Australia;[15] YDN v The State of Western Australia;[16] Law v The Queen.[17]

    [13] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

    [14] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).

    [15] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).

    [16] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).

    [17] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).

16. In the present case, it is unnecessary, having regard to our conclusion in relation to ground 1 of the appeal, to consider ground 2.

The outcome of the appeal and the resentencing of the appellant

1. For the reasons we have given, we decided, at the conclusion of the hearing of the appeal, that the appeal should be allowed; the sentences imposed by the sentencing judge and the orders for cumulacy and concurrency made by her Honour should be set aside; the appellant should be resentenced as set out at [13] above; and the other orders referred to at [13] above should be made.

2. We note that, in deciding upon the sentence to be imposed for count 3, we had regard to:

   (a)the unchallenged findings of fact made by her Honour in relation to count 3;

   (b)the sentencing pattern for offences of this kind as set out in Lee v The State of Western Australia;[18]

   (c)the fact that the appellant's conduct in striking and attempting to strike the complainant was not premeditated or planned, but spontaneous; and

   (d)the appellant's personal circumstances and antecedents and all other relevant sentencing factors.

   [18] Lee v The State of Western Australia [2018] WASCA 156 [90] ‑ [91] (Buss P, Mazza JA & Allanson J).

3. Also, we note the following:

   (a)like the sentencing judge, we allowed a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty;

   (b)we also reduced each sentence we would otherwise have imposed for each offence to reflect the other mitigating factors; and

   (c)we also reduced the sentence we would otherwise have imposed for count 1 from 6 months' immediate imprisonment to 3 months' immediate imprisonment in the application of the totality principle.

4. Further, we note that it was not open to the court to consider whether suspended or conditionally suspended imprisonment was an appropriate sentencing outcome for counts 1 and 2 because it was inevitable that a term of immediate imprisonment had to be imposed for count 3. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act.

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

TW

Associate to the Honourable President Buss

7 MAY 2021