Kiddie v The State of Western Australia - [2025] WASCA 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KIDDIE -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 107
CORAM:   MAZZA JA
HALL JA
ARCHER JA

HEARD:   25 JUNE 2025
DELIVERED          :   18 JULY 2025
FILE NO/S:   CACR 86 of 2024
BETWEEN:   STEPHEN ALEXANDER KIDDIE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MACLEAN DCJ
File Number            :   IND 1675 of 2022

Catchwords:

Criminal law - Sentencing - Whether the appellant was sentenced for additional offences - Whether total effective sentence was disproportionate to the overall criminality

Legislation:

Nil

Result:

Application for extension of time and leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	S H King & F E Sellers
Respondent	:	R F Owen SC

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Barnard v The King [2025] WASCA 63
Bradbury v The State of Western Australia [2020] WASCA 214
Croxford v The State of Western Australia [2021] WASCA 159
GUE v The State of Western Australia [2022] WASCA 121
Hayward v The State of Western Australia [2020] WASCA 57
Kabambi v The State of Western Australia [2019] WASCA 44
Pennetta v The State of Western Australia [2013] WASCA 234
Pilling v The State of Western Australia [2014] WASCA 146
Puntigam v The State of Western Australia [2023] WASCA 46; (2023) 60 WAR 26
Skelly v The State of Western Australia [2020] WASCA 3
The State of Western Australia v Drew [2012] WASCA 86
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Tawhitapou [2024] WASCA 25
UGN v The State of Western Australia [2021] WASCA 10

JUDGMENT OF THE COURT:

Overview

Between 22 and 30 October 2021, the appellant committed a series of crimes in the southern suburbs of Perth. He was charged with 10 offences. After negotiating with the State, he pleaded guilty to two counts of armed robbery, one count of attempted aggravated armed robbery, two counts of stealing a motor vehicle, and one count of home burglary. The remaining four counts were discontinued.
The appellant was sentenced to a total effective sentence of 12 years' imprisonment. He now appeals against that sentence on two grounds:
1.Ground 1 alleges, in essence, that the sentencing judge erred by taking into account facts that related to the discontinued counts.
2.Ground 2 alleges that the total sentence imposed on the appellant was disproportionate to the total criminality of his offending.
For the reasons that follow, we would allow the appeal.

The facts of the offending

As ground 1 alleges that the sentencing judge took into account matters that related to the discontinued counts, the following summary of the facts will include, in italics, the facts that the parties agree underpinned the discontinued counts.[1]

Counts 1 and 2 (home burglary and stealing a motor vehicle)

[1] See sentence appeal book (AB) 11 ‑ 14 (appellant's submissions [7] ‑ [9]) and 30 ‑ 32 (State's submissions [5] ‑ [15]).

At 6.00 pm on 22 October 2021, the appellant broke a window to get into an unoccupied house in Bull Creek (count 1). He took various items, including the keys to a Nissan Pulsar parked outside the house. He used the keys to steal the Nissan Pulsar (count 2).

Count 3 (attempted aggravated armed robbery)

Count 3 was an offence of attempted aggravated armed robbery that occurred later the same day. The appellant was armed with a knife. The aggravating circumstance was that the victim was over 60 years old.
The facts were as follows.
The appellant used the stolen Nissan Pulsar to travel to Livingston Marketplace in Canning Vale. At 10.30 pm he approached an 81‑year‑old woman who had just withdrawn $300 from an ATM. The appellant was wearing a black coat and had a hood pulled up over his head. He told the victim he had a screwdriver and demanded she give him the cash she had withdrawn. The victim saw something she believed was a screwdriver in the appellant's hand. The victim's 76‑year‑old husband then confronted the appellant, and the appellant threatened him as well. The husband stepped back, and the appellant fled in the Nissan Pulsar.

Counts 4 and 5 (discontinued) and count 6 (armed robbery)

Counts 4, 5 and 6 involved the same victim.
Count 4 (armed robbery) and count 5 (deprivation of liberty) were discontinued.
Count 6 was an offence of armed robbery. The appellant was armed with a knife.
The facts for all three charges were as follows. The italicised words relate to the discontinued charges.
On 23 October 2021 at 12.45 am, the manager of a Domino's restaurant in Leeming locked the front door and activated the alarm.
The appellant approached the manager. The appellant was wearing a black hooded jumper covering his chin and mouth area and black gloves on both hands. While holding a knife in front of his body, the appellant said, 'Give me all of the money you have in your wallet'. The blade of the knife was approximately 9 ‑ 10 inches long.
The manager removed his wallet and showed the appellant that he had no cash. The appellant then told the manager to open the restaurant and the safe. The appellant took $475 from the safe, leaving behind the coins (discontinued count 4, armed robbery at Domino's).
The appellant told the manager to close the safe and that they would go to an ATM. The appellant followed the manager from the restaurant and continued to threaten him with the knife. The appellant and the manager walked to an IGA but were unable to get inside as the door was locked. The appellant told the manager to drive them to an ATM in Bull Creek in the manager's car. In the car, the appellant told the manager to do what he was told if he did not want to get hurt. The manager drove, as directed, towards the NAB ATM in the Bull Creek Shopping Centre (discontinued count 5, deprivation of liberty).
The manager told the appellant where the NAB ATM was, and the appellant directed the manager to park in a taxi bay outside the ATM. The appellant told the manager to withdraw all of the money in his account and that he wanted proof. The manager withdrew $600 and gave it to the appellant along with a receipt showing there was no money left in the account.
The appellant then told the manager to drive him back to the Domino's restaurant, where the appellant had parked the stolen Nissan Pulsar. During the drive, the appellant told the manager to hand over his wallet, which the manager did. The appellant looked at the manager's driver's licence and read out the manager's home address several times. He told the manager that he would kill the manager and his family if the manager contacted the police before the following morning.

Count 7 (discontinued) and count 8 (stealing motor vehicle)

Counts 7 and 8 involved the same victim. Count 7 (stealing) was discontinued.
The facts for both charges were as follows. The italicised words relate to the discontinued count 7.
At 8.10 pm on 30 October 2021, the appellant went to Willetton Sports and Community Centre and took a bag containing the keys to a Volkswagen Polo (discontinued count 7, stealing).
The appellant used the keys to steal the Volkswagen Polo (count 8).
He was on bail at the time.

Count 9 (discontinued) and count 10 (armed robbery)

Counts 9 and 10 involved the same victim.
Count 9 was a charge of armed robbery. It was discontinued. It had alleged that the appellant stole property with actual violence while armed with an offensive instrument, namely a number plate. Of all of the counts on the indictment, including the discontinued counts, count 9 was the only one to allege actual violence, as distinct from threats of violence.
Count 10 was an offence of armed robbery. The appellant stole property with threats of violence while armed with a dangerous weapon, namely a knife.
At 9.00 pm the same evening as the offence in count 8, a woman made a deposit in an ATM in Bull Creek, before returning to her car. The woman turned around and observed the appellant standing very close to her.
The facts relating to the discontinued count 9 were not entirely clear, so are reproduced in full.[2]
The [appellant] was holding a numberplate in his right hand and grabbed [the victim]'s Louis Vuitton bag which she was wearing across her body. The [appellant] raised his right hand and attempted to strike [the victim] with the numberplate. [The victim] let go of the bag and the [appellant] pulled it off her, causing her to fall to the ground. The [appellant] began walking towards a silver Volkswagen hatchback which was missing the rear numberplate.
[The victim] pleaded with the [appellant] to return her bag and offered the [appellant] some money which she had in her bag. The [appellant] said 'I don't want to hurt you. I only want the money.' [The victim] gave the [appellant] $50 and her bag, to which the [appellant] said '50 is not enough. Go to the ATM and get money for me.' (italics added)
[2] AB 90.
The appellant put his arm around the victim's shoulders and walked her to the ATM before saying 'Don't make any problem. If you make a problem I can cut you right away.' The victim withdrew $50 from the ATM and gave it to the appellant (count 10).
At some point, the appellant apologised and told the victim that he did not want to scare her.
The appellant was on bail at the time of this offence.

The appellant's personal circumstances

The appellant was 36 years old at the time of offending and 38 years old at the time of sentencing. He had a traumatic upbringing. He had difficulty adjusting to life in Australia after arriving with his parents from the United Kingdom when he was 10 years old. His parents separated shortly afterwards, and he was placed in the care of a family member. He was a victim of sexual abuse.[3]
[3] AB 73.
The appellant suffers from anxiety, for which he takes medication, and depression.[4]
[4] AB 55.
The appellant has a lengthy criminal history, including for armed robbery and aggravated robbery. He was a repeat offender for the purposes of the home burglary provisions of the Criminal Code (WA). The appellant began this series of crimes nine days after he was released from custody, having served a prison sentence for other offences.
The appellant was also on bail when he committed counts 8 and 10.
The sentencing judge reduced the sentences by 10% to take into account the appellant's guilty pleas, which were entered four days before his trial was listed to commence.[5]
[5] AB 73.

The sentences

The appellant was sentenced to:[6]
1.3 years' imprisonment on count 1 (home burglary, contrary to s 401(2)(b) of the Criminal Code), reduced from 4 years' imprisonment for totality reasons;
2.18 months' imprisonment on count 2 (steal motor vehicle, contrary to s 371A of the Criminal Code), to be served concurrently with the sentence imposed for count 1;
3.3 years' imprisonment on count 3 (attempted aggravated armed robbery, contrary to s 392(c) and s 552 of the Criminal Code), reduced from 4 years' imprisonment for totality reasons, to be served cumulatively on the sentence imposed for count 1;
4.3 years' imprisonment on count 6 (armed robbery, contrary to s 392(c) of the Criminal Code), reduced from 6 years' imprisonment for totality reasons, to be served cumulatively on the sentence imposed for count 1;
5.10 months' imprisonment on count 8 (steal motor vehicle, contrary to s 371A of the Criminal Code), to be served concurrently with the sentence imposed for count 1; and
6.3 years' imprisonment on count 10 (armed robbery, contrary to s 392(c) of the Criminal Code), reduced from 4 years 6 months' imprisonment for totality reasons, to be served cumulatively on the sentence imposed for count 1.
[6] AB 74 - 76.
The total effective sentence was therefore 12 years' imprisonment.
The sentences were backdated to 4 November 2021 to take into account the time the appellant had spent in custody.
The appellant was made eligible for parole.

Ground 1 - wrong facts?

The first ground of appeal is that the sentencing judge erred 'by sentencing the appellant for additional offences to the ones with which the [appellant] was charged, alternatively, [by sentencing] the appellant on the wrong facts'. In essence, the appellant asserts that the sentencing judge, in evaluating the seriousness of counts 6 and 10, took into account facts relating to the discontinued charges, and considered that those facts made the offending more serious.
The sentencing judge's description of counts 6 and 10 was relevantly as follows. The appellant submits that the words in bold italics demonstrate the alleged error.
In relation to count 6, the sentencing judge relevantly said:[7]
Count 6 took place, again, at night. You were disguised, you were armed, you were threatening and frightening to a person who was going about their business, closing their business. They were vulnerable and they were entitled to be able to be expected to go home safe and not to be threatened and detained by you and then forced to drain their [account] of all the money that they had in their bank. And then at the conclusion of that, to be met with more threats by way of a threat to kill and, in the event that they reported the event.
The complainant or victim in that matter told police that you said to him …
And then after forcing him to go to an ATM and to drain the account of the $600 he had in it, you made threats to kill him and his family. You threatened [him with] a knife. He was obviously scared and he wanted to cooperate in full with you because he did not want to get hurt. (emphasis added)
[7] AB 67 ‑ 68.
In relation to count 10, the sentencing judge relevantly said:[8]
The victim … was out and about entirely, one might reasonably be expected to be [at] 9 pm on a Saturday night. Went to a Commonwealth Bank near a kebab shop, … perfectly ordinary behaviour.
…
You armed yourself with what was available to you, namely a number plate that you'd taken from [the stolen Volkswagen Polo], and you used that as a weapon by way of attempting to strike the person with the number plate.
You, again, used not only the threat of violence, but actual violence, insofar as the swinging of the plate goes, and you commandeered the victim by putting your arm around them and walking them to the ATM and threatening that person, again, by way of threatening to cut them if they did not comply with your demand for money.
They had $50 or something of that nature on their person, but were told by you that that was not enough, hence the commandeering of them and the direction to travel to the ATM and withdraw, again, a fairly paltry amount, to pay you. (emphasis added)
[8] AB 68.
In Skelly v The State of Western Australia,[9] this court said:
It is a fundamental principle that 'no one should be punished for an offence of which he has not been convicted'. The importance of this fundamental principle, which is founded on basic notions of fairness and justice, means that it trumps the general principle that all the circumstances of the offence are to be considered in determining the appropriate sentence for that offence.
This principle applies in several different situations. Among other things, it means that, in sentencing an offender for an offence, a sentencing judge must not take into account a fact or circumstance if it would, in effect:
(a)treat the offender as guilty of a more serious offence than the offence of which they have been convicted; or
(b)constitute a circumstance of aggravation, so as to render the offender liable to a higher penalty.
…
It is not always easy to determine where the line is to be drawn between permissible consideration of the circumstances of the offence and punishment for an offence not charged. Questions of fact and degree are involved. What is required is a careful reading of the sentencing remarks to see to what extent, and for what purpose, uncharged acts might have been taken into account. (citations omitted)
[9] Skelly v The State of Western Australia [2020] WASCA 3 [81] ‑ [84].
This should not be understood as meaning that where the surrounding circumstances of an offence include other conduct which could have been the subject of charges it must be ignored. There is a distinction between improperly increasing a sentence to take into account uncharged offences and properly making an assessment of the seriousness of an offence having regard to the context in which it occurred.[10]
[10] Barnard v The King [2025] WASCA 63 [109].
Having considered the sentencing remarks as whole, we do not accept that the sentencing judge fell on the wrong side of the line in relation to count 6. We do accept his Honour fell on the wrong side in relation to count 10. Before explaining why, we will set out the events that occurred prior to the sentencing remarks being made. These form part of the context against which the sentencing judge's remarks are to be assessed.

Context - events prior to the sentence

The appellant pleaded guilty to the six charges on 25 January 2024 before Bowden DCJ, who was not the sentencing judge. Following the pleas, Bowden DCJ asked the prosecutor if she was in a position to outline the material facts. The prosecutor said that she was.
Defence counsel then told his Honour that 'those facts were read to [the appellant]. I understand there's no dispute but I understand my learned friend wishes to read them'.[11] The prosecutor then read the facts for all 10 charges from an amended copy of the material facts dated January 2024. His Honour asked defence counsel to confirm that the facts relating to the counts to which the appellant had pleaded guilty were admitted, and he confirmed that they were.[12]
[11] AB 86.
[12] AB 91.
The sentencing was later listed for 10 May 2024. In its written submissions filed prior to the sentencing hearing, the State submitted in relation to count 6:[13]
24.The victim was vulnerable by virtue of the fact that the offending occurred at night, in an empty car park and the victim had just left his place of employment and was not expecting to be approached and robbed.
…
26.The seriousness of this offending is marked by the extended time the offender terrorised the victim. The offender forced the victim to re‑enter the Dominos store, then attend at the Leeming Shopping Centre to locate an ATM and when there was no ATM available, the victim was forced to drive his own assailant to the Bullcreek Shopping Centre to locate another ATM. During all of these acts, the offender made sure that the victim could still see the knife and know of [the] ongoing threat to his safety.
27.The terrorising of the victim continued, even after the victim provided the offender with all of his money from the ATM, by making him drive back to the Dominos store and reading the victim's address aloud to him to memorise it and threatening to kill him and his partner if he called police.
[13] AB 134.
In its written submissions in relation to count 10, the State submitted:[14]
31.The offender targeted the victim, who was walking alone to her car from an ATM at night in a carpark.
32.The offending was prolonged and persistent, with the offender first forcibly taking the victim's bag off her person, causing her to fall to the ground, and attempting to hit her with the number plate in his hand. Once the victim called out to the offender and pleaded for her handbag back, he forced the victim to walk with him back to the ATM so that she could withdraw more money out for him. The offender forced the victim to withdraw the money by threatening to cut her if she caused any issues.
[14] AB 135.

In his written submissions filed a day later, defence counsel did not take issue with anything in the State's written submissions.[15] Nor did he do so in his oral plea in mitigation.[16] Further, during the plea in mitigation, defence counsel noted that the facts had been read and said the facts were not in dispute.[17]
[15] AB 127 - 130.
[16] AB 55 - 60.
[17] AB 57.
In its oral submissions, the State again referred to the extended nature of the offending in these two counts.[18] Defence counsel said nothing in reply.[19]

Count 6

[18] AB 64.

[19] AB 65.

In relation to count 6, the appellant objects to the sentencing judge's reference to the fact that he had detained the victim and then forced the victim to go to an ATM (being the NAB ATM).
The sentencing remarks were delivered ex tempore. In reciting the facts in relation to count 6, the sentencing judge did not mention any of the events relating to the armed robbery at the Domino's restaurant (discontinued count 4). In relation to the discontinued count 5, his Honour did not mention that, after the alleged robbery in the discontinued count 4, the appellant had forced the victim, while threatening him with the knife, to walk with him to an IGA. His Honour did not mention that the appellant then made the victim drive the victim's own car from the restaurant, and threatened him during the drive.
The appellant does not, and could not, suggest that the victim accompanied him willingly from his place of employment to an ATM. Plainly, the factual foundation of count 6 was that the victim was forced to drive to the NAB ATM and park outside and withdraw cash, and that the appellant threatened the victim and was armed with a knife. The sentencing judge's reference to the appellant forcing the victim to go to an ATM was entirely apt.
We accept that, as the charge of deprivation of liberty had been discontinued, it may have been better if the sentencing judge had not used the word 'detained'. However, sentencing remarks are not to be parsed word by word. In the context of the sentencing remarks as a whole, we are not satisfied that his Honour's use of the word 'detained' shows that his Honour punished the appellant for the deprivation of liberty alleged in the discontinued count 5 or that his Honour sentenced the appellant on the wrong facts. The factual foundation of count 6 included that the victim had been forced to go to the NAB ATM, withdraw money, and drive the appellant back to the restaurant (where the appellant had left the stolen Nissan Pulsar), while being threatened and while the appellant had a knife.
In any event, if the sentencing judge did err, we are not satisfied that the error was capable of affecting the actual sentence imposed.[20]
[20] As to which, see The State of Western Australia v Rayapen [2023] WASCA 55 [164]; Croxford v The State of Western Australia [2021] WASCA 159 [43].
As can be seen in the extract of the sentencing remarks above, his Honour used the word 'detained' in the context of describing the victim's vulnerability, and that the victim was entitled to expect to be able to go home safe and 'not be threatened and detained by [the appellant] and then forced to drain their [account] of all the money that they had in their bank. And then at the conclusion of that, to be met with more threats by way of a threat to kill [if] they reported the event'.[21]
[21] AB 67.
His Honour went on to detail the victim's description of the threats the appellant had made after the robbery. His Honour then noted that the threats were to kill the victim and his family, and that the appellant threatened the victim with a knife. His Honour said that the victim was obviously scared and cooperated because he did not want to get hurt.[22]
[22] AB 67 - 68.
The appellant accepts that the factual foundation of count 6 included that:[23]
1.The appellant 'directed [the victim] to park in a taxi bay outside the ATM [and] told [the victim] to withdraw all of the money in his account and that he wanted proof'.
2.The victim withdrew $600 and gave it to the appellant along with a receipt showing there was no money left in the account.
3.The appellant then told the victim to drive him back to the Domino's restaurant, where the appellant had parked the stolen Nissan Pulsar.
4.During the drive, the appellant told the victim to give the appellant his wallet, which the victim did. The appellant looked at the victim's driver's licence and read out the victim's home address several times. He told the victim that he would kill the victim and his family if the victim contacted the police before the following morning.
[23] As these matters were not italicised in the appellant's submissions - see AB 13 (appellant's submissions).
In that context and those circumstances, his Honour's use of the word 'detained' was, even if erroneous, not an error that could have affected the sentence that the sentencing judge imposed on the appellant. The gravamen of the appellant's criminality in count 6 was forcing the victim to withdraw all of his money, while being threatened with a knife, and then making the victim drive the appellant back to where he had parked the stolen Nissan Pulsar while making further threats.

Count 10

In relation to count 10, the appellant objects to the sentencing judge saying:
You armed yourself with what was available to you, namely a number plate that you'd taken from [the stolen Volkswagen Polo], and you used that as a weapon by way of attempting to strike the person with the number plate.
You, again, used not only the threat of violence, but actual violence, insofar as the swinging of the plate goes[.] (emphasis added)
The State notes that, in its written sentencing submissions as to the seriousness of the offending and the aggravating factors, it referred to the use of the number plate in relation to count 10.[24] In his written submissions filed a day later, defence counsel did not take issue with anything in the State's written submissions.[25] Nor did he do so in his oral plea in mitigation.[26]
[24] AB 135 [32]. Extracted above.
[25] AB 127 - 130.
[26] AB 55 - 60.
The State submits that the sentencing judge's reference to those specific facts did not impermissibly add to his Honour's assessment of the seriousness of the offending. It submits that they were facts available to provide necessary context to the admitted offending, and amounted to an accurate characterisation of the whole of the offending conduct.[27]
[27] AB 35 [25].
The State submits:[28]
In relation to count 10, the appellant pleaded to a charge of armed robbery. The fact that, at the very least, the appellant was carrying a number plate as a weapon, was an element of the charge. There was no error in the judge's reference to this fact.
As to the judge's observation that the appellant used 'actual violence' by swinging the number plate towards the victim, this did not constitute a material error. The appellant's actions prior to the victim going into the bank on that occasion to withdraw money for him were plainly relevant to the seriousness of the offence and were not denied by the appellant. In particular, the appellant demonstrated that he was willing to use the numberplate as a weapon in order to secure compliance with his demands for money.
[28] AB 37 [31] ‑ [32].
It is incorrect that the alleged fact that the appellant was carrying a number plate as a weapon was an element of count 10. Count 10 alleged that the appellant was armed with a knife. Being armed with the number plate was an element of the discontinued count 9.
The State also submits 'it is notable that the facts specifically relating to count 9 (the appellant taking the victim's bag and [her] falling to the ground) were not mentioned by the [sentencing] judge'.[29] We accept this. Nevertheless, the sentencing judge did mention the use of the number plate as a weapon.
[29] AB 37 [33].
The State submits that the sentencing judge did not treat the use of the number plate as an aggravating feature of count 10. It submits that, when the judge did treat a fact as aggravating, his Honour used phrases such as 'more serious' or 'aggravating factor' or 'particularly serious given the aggravating circumstances'.
We do not accept this.
In referring to the number plate, the sentencing judge was plainly doing more than simply identifying the context in which count 10 occurred. It was not merely a single comment (see the passage reproduced at [63]).
Further, we accept the appellant's submission that the sentencing judge's phrasing 'You … used not only the threat of violence, but actual violence, insofar as the swinging of the plate goes' demonstrated that his Honour considered that the use of the number plate made count 10 more serious. In effect, his Honour was placing count 10 into a different and more serious category of offending on the basis that actual violence was used, notwithstanding that that actual violence related to a different armed robbery charge that had been discontinued.
The State submits that, if his Honour had treated the use of the number plate as aggravating count 10, the sentence would have been higher. The State submits that this can be seen by comparing the penalty imposed for count 10 with sentences commonly imposed for offences of this type and with the sentences imposed on counts 3 and 6. In effect, the State submits that, if count 10 had involved actual violence in the swinging of a number plate, comparable cases and the sentences imposed on counts 3 and 6 would indicate that a sentence higher than the sentence imposed would have been given.
We do not accept this. In any event, as pointed out by the appellant, he need not establish that the error affected the sentence, only that it was capable of doing so.[30]
[30] See Rayapen [164] and Croxford [43].
In our view, the error was capable of affecting the sentencing judge's assessment of the seriousness of count 10, and was therefore capable of affecting the sentence. Accordingly, we are satisfied that the error was material.
For these reasons, we would uphold ground 1 in relation to the sentence imposed on count 10.

Ground 2 - disproportionate total effective sentence?

Ground 2 is that the total sentence imposed on the appellant was disproportionate to the total criminality, having regard to the circumstances of the offending, the appellant's personal circumstances and pleas of guilty, and sentencing standards. This ground alleges, in effect, that the total effective sentence infringed the first limb of the totality principle.
The general sentencing principles applicable to such a ground of appeal are well established.[31]

Maximum penalties

[31] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

The maximum penalty for the offence of home burglary not committed in circumstances of aggravation is 18 years' imprisonment.[32] As the appellant was a repeat offender, the minimum penalty was 2 years' imprisonment.[33]
[32] Criminal Code, s 401(1)(b).
[33] Criminal Code, s 401(4)(b)(i).
The maximum penalty for stealing a motor vehicle is 7 years' imprisonment.[34] The maximum penalty for attempted aggravated armed robbery is 14 years' imprisonment.[35] The maximum penalty for armed robbery is life imprisonment.[36]

Seriousness of the offending

[34] Criminal Code, s 371A and s 378.

[35] Criminal Code, s 392(c) and s 552(2)(a).

[36] Criminal Code, s 392(c).

The sentencing judge rightly found that, other than the stealing offences, the offending was serious.
In relation to count 1, the sentencing judge noted that the appellant had broken a window to get into the house he burgled.
In relation to the robberies, the sentencing judge found that the robberies were calculated and planned, that the appellant deliberately targeted vulnerable people at night who appeared to have ready access to cash, and that the appellant had persisted in the use of violence and intimidation to steal money from them.[37]
[37] AB 69.
None of these findings (other than any reliance on the use of the number plate) are challenged in the appeal.
The offending began nine days after the appellant was released from custody, having served a prison sentence for other offences.
The appellant was on bail when he committed counts 8 and 10.
The appellant was a repeat offender for the purposes of the home burglary provisions of the Criminal Code.
The robbery offences and the attempted robbery were particularly serious. The appellant deliberately targeted vulnerable people at night. He threatened one victim with a screwdriver and the others with a knife. The victim of count 3 was 81 years old. The robbery the subject of count 6 was persistent and prolonged. The appellant threatened to kill the victim and his family if the victim reported it to the police before the morning, and made it clear to the victim that he knew where the victim lived.

Deterrence and community protection

The sentencing judge said that the appellant's lengthy record, and history of similar offending, demonstrated the need for specific deterrence and community protection. His Honour said that the appellant remained a significant risk to the community.[38]
[38] AB 71 - 74.
None of these findings are challenged in the appeal.

Mitigating factors

The sentencing judge reduced the sentences by 10% to take into account the appellant's guilty pleas, which were entered four days before his trial was listed to commence.[39]
[39] AB 73.
The sentencing judge was not satisfied that the appellant was remorseful.[40]
[40] AB 74.
The sentencing judge noted that the appellant's continuing offending may be an echo of his traumatic childhood, but that the vulnerability caused by his childhood also increased his risk of further offending.[41]
[41] AB 74.
None of these findings are challenged in the appeal.

Comparable cases

The appellant's contention in relation to ground 2 is, in essence, that error can be inferred by comparing his total effective sentence to the total effective sentences imposed in other cases.
When an infringement of the first limb of the totality principle is alleged, comparing the total effective sentence under challenge to cases said to be comparable is of limited utility.[42] This is because[43]
the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (citations omitted)
[42] UGN v The State of Western Australia [2021] WASCA 10 [54].
[43] Pennetta v The State of Western Australia [2013] WASCA 234 [39].
The appellant submits that the sentences imposed in 15 cases support this ground of appeal.[44] In 11 of those cases, the offender was refused leave to appeal on the ground that the total effective sentence infringed the first limb of the totality principle. That is, the Court of Appeal found that the total effective sentence under appeal was not even arguably excessive. In those circumstances, the sentence imposed does not provide any marker as to the upper limits of the proper exercise of discretion.[45]
[44] The appellant's reference to Puntigam v The State of Western Australia [2023] WASCA 46; (2023) 60 WAR 26 was only to note that that case considered the sentences imposed in two other cases.
[45] GUE v The State of Western Australia [2022] WASCA 121 [59].
The remaining four cases were The State of Western Australia v Drew;[46] Bradbury v The State of Western Australia;[47] The State of Western Australia v Tawhitapou;[48] and Hayward v The State of Western Australia.[49]
[46] The State of Western Australia v Drew [2012] WASCA 86.
[47] Bradbury v The State of Western Australia [2020] WASCA 214.
[48] The State of Western Australia v Tawhitapou [2024] WASCA 25.
[49] Hayward v The State of Western Australia [2020] WASCA 57.
In Drew, the court dismissed a State appeal against sentence. However, the court said that the individual sentences and the total effective sentence were, without doubt, lenient and that the sentencing disposition was merciful.[50] In those circumstances, the sentence that had been imposed at first instance does not provide any marker as to the upper limits of the proper exercise of discretion.
[50] Drew [43].
Bradbury did not involve an appeal against the length of the total effective sentence. In any event, leave to appeal was refused.
In its submissions, the State appeared to accept that Tawhitapou was a useful comparator.[51] In that case, the offender committed three aggravated home burglaries, one aggravated armed robbery, one armed robbery, and an offence of stealing. He received a total effective sentence of 7 years' imprisonment after a successful State appeal.
[51] AB 43 [48].
The State submits that Mr Tawhitapou's offending 'may be considered somewhat similar to the appellant's offending'.[52] While it may have been 'somewhat similar', in our view, Mr Tawhitapou's offending was significantly worse. This is evident from the facts relating to the third home burglary and the aggravated armed robbery, which can be summarised as follows.
[52] AB 43 [48].
At about 9.30 pm, the female complainant, EEC, answered a knock at her front door. As she opened the front door, Mr Tawhitapou grabbed the flyscreen door and swung it open. Mr Tawhitapou punched EEC to the mouth with a closed fist, causing her to stumble backwards. He then punched her in the face again, grabbed her by the throat and pushed her backwards into the house. He then put EEC in a headlock and dragged her along the hallway. The male complainant, BG, heard the commotion and came to EEC's aid. BG tried to free EEC from Mr Tawhitapou's headlock, and she was able to slide free.
BG and Mr Tawhitapou continued to struggle. A co‑offender, who was armed with a knife, entered the complainants' home. BG ran towards the co‑offender and attempted to push him out the front door. BG and the co‑offender wrestled for control of the knife. During the struggle, the co‑offender pushed the knife into BG, causing a mild laceration. Next, Mr Tawhitapou grabbed BG around the neck and pulled him away from the co‑offender. Mr Tawhitapou and the co‑offender kicked BG to the head while he lay on the ground at the bottom of the stairs outside the front of the house. Mr Tawhitapou lay on top of BG and held his shoulders, shaking him and hitting his head on the ground.
EEC went inside the house, secured the front door and grabbed her mobile telephone to call the police. The co‑offender forced his way into the house again through the front door. He held the knife towards EEC and made a stabbing motion with it. He then held the knife against EEC's chest and demanded money. EEC gave him $200 cash. As the co‑offender left the kitchen, EEC heard someone outside the house shout, 'Did you get it?'
Mr Tawhitapou did have significantly more matters of mitigation than the appellant. He was 24 years old at the time of committing the first five offences, and 26 at the time of committing the last. His age was said to warrant 'modest mitigation'.[53] He received a 15% discount for his pleas of guilty. Further, while he had a criminal record and could not therefore be considered to be of prior good character, it was relatively minor.
[53] Tawhitapou [77].
The Court of Appeal resentenced Mr Tawhitapou to a total effective sentence of 7 years' imprisonment.
In our view, despite the significantly greater mitigation available to Mr Tawhitapou, the total effective sentence imposed on the appellant seems inconsistent with the total effective sentence imposed on Mr Tawhitapou by the Court of Appeal.

The appellant in Hayward committed nine offences in one day. The offences included an act with intent to cause bodily harm, armed robbery, attempted armed robbery, and two counts of threat to harm. In the course of these offences, the appellant assaulted his former partner with a small claw hammer, striking her repeatedly to the head and body. In a pharmacy, he produced the claw hammer and demanded Valium. After leaving the pharmacy, the appellant was approached by a security officer and the manager of a supermarket. The appellant raised the claw hammer and threatened them both with it. A short time later, the appellant threatened a young woman in a car park. Later the same day, he went to Red Rooster and demanded $200 from one of the staff members, telling him that he had a fully‑loaded pistol in his bag. After attempting to sell the staff member two Valium tablets, the appellant displayed the claw hammer and left the store.
Like the appellant in this case, Mr Hayward had a disadvantaged childhood. He was not youthful nor of prior good character, having an extensive record for violence including armed robbery. The only mitigating factor of significance was his pleas of guilty, for which he was given discounts of 20% for some charges and 25% for others. He received a total effective sentence of 10 years 6 months' imprisonment. His appeal was allowed on the basis that this breached the first limb of the totality principle. This Court resentenced him to a total effective sentence of 8 years 6 months' imprisonment.
In our view, the total effective sentence imposed on the appellant seems inconsistent with the total effective sentence imposed on Mr Hayward by the Court of Appeal.
The State submits:[54]
Review of broadly comparable cases, including those relied upon by the appellant, suggests that the [total effective sentence] imposed in the present case was high. Nevertheless, the respondent submits that a sentence of that magnitude was entirely appropriate, due to the seriousness and persistence of the offending, the importance of general and personal deterrence, and the need to impose a sentence which protected the community. The [total effective sentence] in the present case reflects nothing more than a richly deserved punishment for the significant number of serious offences committed by the appellant.
[54] AB 43 ‑ 44 [49].
In a footnote to this submission, the State referred to two cases not cited by the appellant, stating:
See Herz v The State of Western Australia [2022] WASCA 73 (sentenced as secondary participant to the offending, single but serious and prolonged incident ‑ 7 years and three months' imprisonment after trial); Morley v The State of Western Australia [2021] WASCA 134 (two counts: armed robbery and aggravated assault with intent to steal ‑ similar stand‑over offending to present case ‑ 6 years upheld on appeal).
Neither sentence approaches the total effective sentence of 12 years' imprisonment imposed on the appellant.
The State also made comments in relation to some of the cases cited by the appellant in which leave to appeal against a total effective sentence on the basis that it infringed the totality principle was refused. The State noted that, in Pilling,[55] leave to appeal against a total effective sentence of 10 years' imprisonment was refused. The State submitted that the offending in Pilling 'may be considered more serious than the present offending, but not markedly so'.[56] In our view, the offending in Pilling was markedly more serious than the present offending. Mr Pilling was sentenced for seven offences of armed robbery and one attempted armed robbery on eight separate days. Four of the armed robbery offences were aggravated by being committed while the appellant was in company. In all but the first armed robbery (in which Mr Pilling had a large screwdriver), Mr Pilling was armed with a replica handgun. When committing five of the armed robberies, Mr Pilling wore a black stocking over his face. Further, Mr Pilling pleaded guilty on the first day of the trial, and was given no, or only a nominal, discount for his pleas.

Conclusion

[55] Pilling v The State of Western Australia [2014] WASCA 146.

[56] AB 42 [46(c)].

It is difficult to compare the appellant's total effective sentence to the total effective sentences imposed in other cases, because of the inevitable differences in the factual circumstances, personal circumstances, and the combination of offences in each case. Nevertheless, the court must try to ensure a broad consistency in sentencing. Having reviewed the cases cited by the parties, we are satisfied that the total effective sentence imposed on the appellant was not broadly consistent with the total effective sentences imposed in other cases.
The appellant's offending was undoubtedly serious, for the reasons identified by the sentencing judge. Nevertheless, we are satisfied that the total effective sentence imposed by the sentencing judge was disproportionate to the total criminality, having regard to the circumstances of the offending, the appellant's personal circumstances and pleas of guilty, and sentencing standards. Therefore, it infringed the first limb of the totality principle. Ground 2 has been made out.

Resentencing

This court has all the materials necessary to resentence the appellant.
Like his Honour, we would give a discount of 10% for the appellant's pleas of guilty, under s 9AA of the Sentencing Act 1995 (WA).
In exercising the sentencing discretion afresh on this occasion, it is unnecessary to vary the individual sentences imposed by the sentencing judge. Rather, we would set aside the orders as to accumulation and concurrency, and, in lieu thereof, order that count 3 be the head sentence, that the sentences for counts 6 and 10 be cumulative, and that the other sentences be concurrent. This results in a total effective sentence of 9 years' imprisonment.
The appellant should remain eligible for parole and this sentence should be backdated to commence on 4 November 2021.

Application for extension of time

The appellant filed his notice of appeal over 10 weeks late. He sought an extension of time within which to appeal. The delay has been explained. Although the explanation is not entirely satisfactory, the State does not oppose the application. As we are satisfied that the appeal has merit, we would grant the application for an extension of time.

Conclusion

For these reasons, we would grant the application for an extension of time, grant leave to appeal on grounds 1 and 2, and allow the appeal.

Orders

Extension of time granted.
Leave to appeal granted.
Appeal allowed.
The sentences imposed on IND 1675/2022 be varied by setting aside the orders as to accumulation and concurrency and in lieu thereof ordering that the sentences on counts 6 and 10 be served cumulatively with each other and on count 3, and that the sentences on counts 1, 2 and 8 be served concurrently with the sentence on count 3.
The appellant be eligible for parole.
The total effective sentence of 9 years' imprisonment be taken to have commenced on 4 November 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NC
Associate to the Hon Justice Archer
18 JULY 2025