Luckman v The State of Western Australia - [2024] WASCA 140

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LUCKMAN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 140
CORAM:   QUINLAN CJ
MAZZA JA
HALL JA

HEARD:   11 MARCH 2024
DELIVERED          :   12 NOVEMBER 2024
FILE NO/S:   CACR 69 of 2023
BETWEEN:   ROBERT JOHN LUCKMAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   EGAN DCJ
File Number            :   IND 696 of 2022

Catchwords:

Criminal law - Sentencing - Aggravated home burglary - Unlawfully doing grievous bodily harm in course of an aggravated home burglary - Mandatory minimum sentence - Whether sentencing judge acted in contravention of s 11 of Sentencing Act 1995 (WA) - Whether total effective sentence infringed first limb of totality principle - Principle against double punishment

Legislation:

Criminal Code (WA), s 294(1)(a), s 294(2), s 297(1), s 297(5)(a)(ii), s 401(2)(a)
Sentencing Act 1995 (WA), s 11(1)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	N Sinton
Respondent	:	R G Wilson

Solicitors:

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

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

Beekman v The State of Western Australia [2022] WASCA 130
Cotterill v The State of Western Australia [2013] WASCA 52
Hunter-Aragu v The State of Western Australia [2015] WASCA 80
Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kelly v The State of Western Australia [2020] WASCA 29
Larsen v The State of Western Australia [2019] WASCA 181
Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Ritchie v The State of Western Australia [2023] WASCA 120

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment in the District Court of Western Australia with two offences, as follows:[1]
(1)On 12 February 2021 at Singleton Robert John Luckman, while in the place of Daniel Adam Lyon without his consent, committed the offence of assault
And that Robert John Luckman was armed with a dangerous weapon, namely a machete
And that Robert John Luckman did bodily harm to Daniel Adam Lyon
And that immediately before the commission of the offence Robert John Luckman knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place Robert John Luckman, with intent to do some grievous bodily harm to Daniel Adam Lyon, unlawfully did grievous bodily harm to Daniel Adam Lyon
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
[1] WAB 35 - 36.
In broad terms, in the early hours of 12 February 2021, the appellant broke into a house occupied by Mr Lyon and three others, without their consent, armed with a machete. Mr Lyon and the others were at home asleep. The appellant entered Mr Lyon's bedroom and struck him several times with the machete, inflicting serious physical injuries.
Count 1 is an offence of aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).[2] The offence carries a statutory maximum penalty of 20 years' imprisonment. Count 2 is an offence of doing grievous bodily harm with intent to do grievous bodily harm, contrary to s 294(1)(a) of the Code, which carries a statutory maximum penalty of 20 years' imprisonment. Section 294(2) of the Code provides that if an offence contrary to s 294(1) is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in s 294(1). Thus, the appellant was liable upon conviction on count 2 to a mandatory minimum sentence of 15 years' imprisonment.
[2] See the definitions of 'home burglary' and 'aggravated home burglary' in s 1(1) of the Code.
There are a number of statutory alternative offences available under s 294(1) of the Code, including the offence of doing grievous bodily harm to another (absent an intent to do grievous bodily harm), contrary to s 297(1) of the Code. By s 297(5)(a)(ii), if an offence under s 297(1) is committed by an adult offender, then the court sentencing the offender must, if the offence is committed in the course of conduct that constitutes an aggravated home burglary, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in s 297(1). Thus, an offender who commits an offence contrary to s 297(1) in the course of conduct that constitutes an aggravated home burglary is liable to a mandatory minimum sentence of 7 years 6 months' imprisonment.
On 17 April 2023, the appellant, on arraignment at his trial before Egan DCJ and a jury, pleaded guilty to count 1. The appellant pleaded not guilty to count 2. However, he pleaded guilty to the alternative offence of doing grievous bodily harm to another, contrary to s 297(1) of the Code (the alternative offence).[3] The plea was not accepted by the State.[4] The trial proceeded in respect of count 2.
[3] ts 5.
[4] ts 5.
As defence counsel made clear in his opening address, the only issue in dispute at the trial was whether the appellant intended to do grievous bodily harm to Mr Lyon.[5] The appellant made admissions, pursuant to s 32 of the Evidence Act 1906 (WA), which, in effect, admitted to all of the elements of count 2 save for the element of intent.[6] The appellant did not dispute that he did the grievous bodily harm to Mr Lyon in the course of conduct which constituted an aggravated home burglary.
[5] ts 35 - 36.
[6] Exhibit 1.
The appellant gave evidence in his defence. He testified that he had no memory of the offending, of going to Mr Lyon's house with a machete, or of entering the housing and assaulting him. Dr Adam Brett, a consultant and forensic psychiatrist, also testified for the defence. In substance, Dr Brett testified that it was a reasonable possibility that the appellant was in a dissociative state at the time of the offences, as a result of which, he was not capable of forming the intention required for the offence in count 2. To be clear, the appellant did not allege that any of his acts were unwilled. Nor did he raise a defence under s 27(1) of the Code.
The forensic strategy of the appellant at trial is evident. By putting in issue the element of intent in count 2, but otherwise admitting to an offence contrary to s 297(1), the appellant hoped to avoid being convicted of count 2, and thus being liable to a mandatory minimum penalty of 15 years' imprisonment. Instead, if convicted of the alternative offence, he would be liable to the lesser mandatory minimum sentence of 7 years 6 months' imprisonment.
On 19 April 2023, the jury found the appellant not guilty of count 2, but guilty of the alternative offence. The trial judge left to the jury the question of whether the alternative offence was committed in the course of conduct that constituted an aggravated home burglary. As to this circumstance, the jury, unsurprisingly, delivered a verdict of guilty.[7] Thus, the appellant was liable to be sentenced to a statutory maximum penalty of 10 years' imprisonment with a mandatory minimum sentence of 7 years 6 months' imprisonment.
[7] ts 258.
On 9 May 2023, his Honour sentenced the appellant on count 1 to 1 year 6 months' imprisonment, reduced from 3 years' imprisonment for totality, and to the mandatory minimum sentence of 7 years 6 months' imprisonment for the alternative offence. His Honour ordered that the sentences be served cumulatively. Thus, the total effective sentence imposed on the appellant was 9 years' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 12 February 2021.

The grounds of appeal

There are two grounds of appeal. In substance, ground 1 alleges that his Honour erred in law by sentencing the appellant in contravention of s 11(1) of the Sentencing Act 1995 (WA). Alternatively, his Honour infringed the common law principle against double punishment by ordering that the sentence on count 1 be served cumulatively upon the sentence for the alternative offence. Ground 2 alleges that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle. The question of leave to appeal on each of these grounds was referred to the hearing of the appeal.[8]
[8] Order of Buss P dated 26 September 2023.
At the hearing of the appeal, counsel for the appellant accepted that the focus of ground 1 was upon the alleged infringement of s 11(1) of the Sentencing Act, and that the alleged infringement of the principle against double punishment could be dealt together with the allegation of the infringement of the totality principle in ground 2.[9] We will deal with the grounds on this basis.
[9] Appeal ts 14.
In our opinion, his Honour did not infringe s 11(1) of the Sentencing Act. However, there have been infringements of the principle against double punishment and the totality principle. We would allow the appeal, set aside the sentences imposed at first instance and resentence the appellant. Our reasons for those conclusions are as follows.

The facts of the offending

The facts of the offending as found by the sentencing judge are not in dispute. They may be summarised as follows.
On both 22 and 27 January 2021, the appellant and Mr Lyon, who was the appellant's neighbour, got into two separate altercations. On each occasion, the appellant punched Mr Lyon in the head. Mr Lyon did not provoke these incidents.
On 2 February 2021, a violence restraining order was served on the appellant, which, among other things, prevented him from entering or remaining on Mr Lyon's residence in the suburb of Singleton (the Singleton property), or communicating, or attempting to communicate, with him.
Apart from Mr Lyon, his partner and two other people also lived at the Singleton property.
On the afternoon and evening of 11 February 2021, the appellant had been drinking alcohol. The precise amount of alcohol that the appellant had consumed could not be ascertained. But, according to the evidence given by the appellant at his trial, he became intoxicated.
Sometime between midnight and 12.20 am on 12 February 2021, the appellant, in breach of the violence restraining order, went to the Singleton property carrying a machete. Upon his arrival, the appellant kicked in a side door and entered the house. He then entered Mr Lyon's bedroom and struck him repeatedly with the machete while he was asleep in bed, inflicting multiple lacerations and open fractures to Mr Lyon's ankle and shoulder. The appellant then turned on the bedroom light. Mr Lyon got out of bed and tackled the appellant to the floor. While attempting to disarm the appellant, Mr Lyon sustained further injuries. The other three occupants of the house woke up and came to assist Mr Lyon. The appellant's arms were pinned down, the machete was removed from his grasp, and then taken away by one of the other occupants.
The police were called and the appellant was placed under arrest. Mr Lyon's injuries required surgery at Royal Perth Hospital. The injuries to his ankle and shoulder constituted grievous bodily harm as defined in s 1(1) of the Code because they were of such a nature as to cause permanent injury to health.

The appellant's personal circumstances

At the time of the offending, the appellant was 37 years old. He was 39 years old when he was sentenced. His parents separated when he was 5 years old, and he was predominantly raised by his mother. Both his parents are supportive of him and provided references to the sentencing judge confirming their support. The appellant left school at year 11. He has no formal trade or tertiary qualifications, but has been employed throughout most of his adult life in a number of different occupations.
The appellant has five children; four with his first wife and one with his second wife. The appellant and his second wife separated shortly before the commission of the offences, and, at the time the offences were committed, his second wife was pregnant. At the time the appellant was sentenced, she and the baby had moved away and were living in the United Kingdom.
Prior to the offences on 12 February 2021, the appellant had a relatively minor criminal history, comprising mostly of offences under the Road Traffic Act 1974 (WA). His Honour described the effect of the appellant's prior criminal history on his sentencing as 'neutral'.[10]
[10] ts 302.
Although the appellant had good physical health, he had suffered from mental health issues for a number of years prior to the commission of the offences, and had, on several occasions, been admitted to mental health facilities. In December 2020, the appellant was hospitalised at the Rockingham Hospital Mental Health Unit. The nature and effect of the appellant's mental health issues on the offending were described by Dr Brett in his evidence.
Dr Brett said that the appellant suffered from borderline personality disorder, which was complicated by a mood disorder, namely major depression with anxiety.[11] Dr Brett testified that, in the period leading up to the commission of the offence, the appellant was in a low mood and behaving erratically.[12] He had attempted to seek medical assistance, but had found it difficult to get help through the public mental health service.[13] Dr Brett testified that it was not uncommon for people with the kind of personality structure of the appellant to have episodes of amnesia or blackout, particularly under stress.[14] Dr Brett noted that, in early 2021, prior to the commission of the offences, the appellant's then pregnant second wife left him and returned to the United Kingdom, which would have been stressful for the appellant.[15]
[11] ts 144.
[12] ts 151.
[13] ts 145.
[14] ts 147.
[15] ts 148.
In Dr Brett's opinion, the appellant was 'severely disabled' at the time of the commission of the offences by the symptoms associated with his borderline personality disorder and major depression with anxiety.[16] Dr Brett said that dissociation is very common as a symptom of borderline personality disorder, and is usually precipitated by stress.[17] Dr Brett described being in a dissociative state as a completely unconscious process which the person in that state has no control over, and gave as an example sleepwalking. He said that being in a dissociative state included a spectrum of behaviours from mild daydreaming to losing concept of time, and losing any awareness of what the person was doing during that time.[18]
[16] ts 154.
[17] ts 155.
[18] ts 156.
Dr Brett testified that, in the present case, he could not rule out as a reasonable possibility that, at the time of the commission of the offences, the appellant was in a dissociative state.[19] That is, the appellant was not necessarily thinking about what he was doing or he was intending to do.[20]
[19] ts 157 - 158.
[20] ts 158.
In cross‑examination, Dr Brett accepted that the consumption of alcohol can worsen depression and increase anger and irritability.[21] Dr Brett accepted that the appellant's lack of memory could also have been due to alcohol consumption.[22]
[21] ts 169.
[22] ts 171.

The victim impact statements

The sentencing judge received victim impact statements from Mr Lyon, his partner and the other two occupants of the Singleton property.
Mr Lyon described how it had taken a long time for him to recover from his injuries, and that, as at 26 April 2023, he had still not fully recovered and was unsure whether he would 'ever get back to myself again'. Mr Lyon stated that, before the commission of the offences, he was a social person, but he had become withdrawn from his social network. His sleep had been adversely affected, and he still got 'jumpy' at nighttime noises. His level of anxiety, following the offences, had left him unable to return to work in the retail industry. Mr Lyon described how he struggled to leave his house for fear of 'what I will come across'.
Mr Lyon's partner, who witnessed the offending, described the incident as 'a total nightmare and a horror story'. The offences have had a continuing adverse psychological, economic, and social impact upon her.
One of the other occupants of the house wrote in his victim impact statement that the offences were 'horrific and forever lifechanging'. He and his partner had to move away from the city for a few months to recover from the incident.
The other occupant of the house wrote in her victim impact statement that she had developed anxiety in social situations, and she felt unsafe when she went out, especially around intoxicated people. She described how she had moments where she feared for her safety generally and in her home.

The sentencing remarks

The sentencing judge comprehensively described the facts of the offending, the appellant's antecedents, and the victim impact statements. He noted that the maximum penalty for count 1 is 20 years' imprisonment, and that the penalty for the alternative offence of doing unlawful grievous bodily harm is 10 years' imprisonment, but in the circumstances in which the offence was committed, the appellant was subject to a mandatory minimum penalty of 7 years 6 months' imprisonment.
His Honour said that the seriousness of count 1 was marked by a number of features, including that the appellant entered his neighbours' home in the early hours of the morning, when the occupants were in bed and entitled to feel safe. He also noted that the appellant forcibly entered the property by kicking and damaging the door, and that the appellant was armed with an extremely dangerous weapon, namely a machete. The sentencing judge observed that there was a significant potential for a violent confrontation as a result of the appellant's actions, and that the offence was extremely frightening for the victims.
As for the alternative offence, his Honour said that the seriousness of the offence was marked by features which included that it was a forceful and surprise attack upon Mr Lyon, who was asleep in his bed. Mr Lyon was unarmed and unable to defend himself. The appellant struck Mr Lyon multiple times to multiple parts of his body, causing lacerations, including to his right ear and left forearm, as well as to his right side acromion and deltoid. His Honour particularly noted the open right ankle fracture. His Honour found that, without medical treatment, Mr Lyon would have likely suffered permanent injuries to one of the bones in his ankle and permanent muscle weakness. The sentencing judge observed that Mr Lyon's bedroom was dark, and that Mr Lyon was extremely frightened, as were the other occupants of the house. His Honour said that he could readily understand why all of the victims would have been terrified for their lives.
The sentencing judge found that there were a number of mitigating factors, including the plea of guilty on count 1. His Honour gave a reduction for the plea of guilty on count 1 of 22% pursuant to s 9AA of the Sentencing Act.
His Honour observed that the appellant had offered to plead guilty to the alternative offence on 22 February 2022, more than a year before the appellant's trial. To reflect this, his Honour stated that he reduced the length of the sentence he would otherwise have imposed for the alternative offence by 25%.[23] We observe that given the necessity to impose the mandatory minimum sentence of 7 years 6 months in the context of an offence that carries a maximum sentence of 10 years, it is difficult to see how this discount was actually applied.
[23] See ts 309 - 312. The appellant's case was recalled on 11 May 2023, under s 37(1) of the Sentencing Act, because defence counsel wished to correct information he had given about the timing of the appellant's offers to plead guilty. As a result, the s 9AA discount was reduced on count 1 from 25% to 22%, and the discount on count 2, to reflect the offer to plead guilty to the alternative offence (which, of course, was not pursuant to s 9AA of the Sentencing Act), was increased from 22% to 25%. These adjustments did not result in any change to the sentences actually imposed by his Honour.

His Honour found that there was a causal link between the offending and the appellant's mental health at the time of the offences, which his Honour said should be treated as mitigatory. His Honour also found that the appellant was remorseful for his offending.[24]
[24] ts 301 - 302.
His Honour said that he was unable to make any assessment of the appellant's risk of reoffending in the future due to the absence of any expert reports addressing this question.[25]
[25] ts 302 - 303.
His Honour considered that the appellant's mental illnesses significantly reduced the need for denunciation and general deterrence. However, there remained a need for some specific deterrence, having regard to the role that alcohol may have played in the onset of the appellant's dissociative state.[26]
[26] ts 303.
The sentencing judge considered the effect of s 11(1) of the Sentencing Act upon the appellant's sentencing. His Honour found that s 11(1) of the Sentencing Act did not apply. However, his Honour acknowledged that there was a large degree of factual overlap between the two offences. His Honour said, in substance, that in order to satisfy the requirements of the first limb of the totality principle, and to avoid double punishment, he would reduce the sentence he otherwise would have otherwise imposed on count 1 from 3 years' imprisonment to 1 year 6 months' imprisonment, and ordered that the sentence be served cumulatively on the sentence of 7 years 6 months' imprisonment, being the mandatory minimum penalty, for the alternative offence.[27]
[27] ts 306 - 307.

The submissions

The appellant's submissions

As to ground 1, in the written submissions filed on behalf of the appellant, it was contended that s 11(1) of the Sentencing Act had been infringed because the evidence necessary to establish the elements of the alternative offence included that the offence was committed in the course of conduct that constituted an aggravated home burglary, being the same aggravated home burglary the subject of count 1. Thus, for the purposes of s 11(1) of the Sentencing Act, the evidence necessary to establish the commission of the alternative offence included the evidence necessary to establish count 1.
As to ground 2, the appellant submitted that if s 11(1) of the Sentencing Act did not apply, then his Honour was required to avoid doubly punishing the appellant for the overlapping facts and circumstances. It was submitted that the facts and circumstances of the alternative offence largely, if not completely, overlapped with count 1, so that the order for accumulation infringed the principle against double punishment and resulted in a total effective sentence which also infringed the first limb of the totality principle.

The respondent's submissions

As to ground 1, the respondent accepted that the elements of the alternative offence included the commission of the aggravated home burglary the subject of count 1. However, s 11(1) of the Sentencing Act was not engaged because the elements of the respective offences were not identical. Nor was the evidence required to prove them.
As to ground 2, the respondent acknowledged that there was a large degree of overlap between the facts and circumstances of the respective offences. The respondent submitted that the total effective sentence took into account the need to avoid double punishment, and that the total effective sentence did not infringe the totality principle due to the objective seriousness of each offence and the offending overall.

Legal principles

Section 11(1) of the Sentencing Act provides:
11.Person not to be sentenced twice on same evidence
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
The principle against double punishment was described by McHugh, Hayne and Callinan JJ in Pearce v The Queen:[28]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
[28] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] (McHugh, Hayne & Callinan JJ).
Section 11(1) of the Sentencing Act does not abrogate the principle against double punishment. The purpose of each is to ensure that when a person is sentenced for offences which factually overlap, the offender is not doubly punished for the common conduct.
The operation of s 11(1) of the Sentencing Act and the principle against double punishment have recently been considered in a number of cases decided by this court, namely Kelly v The State of Western Australia;[29] Beekman v The State of Western Australia;[30] and Ritchie v The State of Western Australia.[31]
[29] Kelly v The State of Western Australia [2020] WASCA 29 [29] (Mazza, Beech & Vaughan JJA).
[30] Beekman v The State of Western Australia [2022] WASCA 130 [43] ‑ [46].
[31] Ritchie v The State of Western Australia [2023] WASCA 120 [63] (Buss P, Mazza & Vaughan JJA).
In Beekman, the court summarised the common law principle concerning the avoidance of double punishment and the principles embodied in s 11(1) of the Sentencing Act, as follows:[32]
[32] Beekman [43] - [46].
It is a well established common law principle that when an offender is to be sentenced for multiple offences which contain one or more common legal or factual elements, care must be taken by the sentencing court to avoid punishing the offender twice (or more) for the commission of the common elements. See Pearce v The Queen;[33] Johnson v The Queen.[34]
[33] Pearce [40].
[34] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [27], [34] (Gummow, Callinan & Heydon JJ), [38] (Kirby J).
No single correct mechanism exists for avoiding double (or more) punishment. For example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences. See Cotterill v The State of Western Australia;[35] Hunter-Aragu v The State of Western Australia.[36]
[35] Cotterill v The State of Western Australia [2013] WASCA 52 [27] (McLure P, Buss & Mazza JJA agreeing).
[36] Hunter-Aragu v The State of Western Australia [2015] WASCA 80 [33] (Buss JA, McLure P & Mazza JA agreeing).
Section 11(1) of the Sentencing Act provides:
'If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.'
In Kelly v The State of Western Australia, this court held [29]:
(a)The commission of an offence is not established unless and until all of its elements are proved.
(b)Accordingly, the phrase 'the evidence necessary to establish the commission by a person of an offence', within s 11(1), refers to the evidence necessary to establish all of the elements of the offence.
(c)That proposition also applies to the phrase 'the evidence necessary to establish the commission … of another offence', within s 11(1).
(d)Section 11(1) is therefore engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all of the elements of, and consequently the commission of, another offence.
(e)Section 11(1) does not apply where there is overlap between the evidence required to establish the two offences, but where each offence requires some distinct additional evidence to establish the commission of that offence.
(footnote omitted)
Section 11(1) of the Sentencing Act operates in narrower circumstances than the principle against double punishment. Section 11(1) is engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all of the elements of, and consequently, the commission of, another offence. The focus is upon the elements of the offences and the evidence necessary to establish them. The principle against double punishment is not so restricted and may operate whenever there is factual overlap between two charged offences, whether in respect of the elements of the offences or not.
The general principles applicable to appeals against sentence on the ground of totality are well established.
Sentencing is a discretionary exercise. An allegation of manifest excess in respect of an individual sentence or an infringement of the totality principle in relation to a total effective sentence is an allegation of implied error. Implied error arises where the end result is so unreasonable or plainly unjust that the court is compelled to conclude that a substantial wrong has occurred. Because sentencing is a discretionary exercise, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving, or is yet to serve, a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases.

Ground 1 - disposition

The proposition which underpins ground 1 is that one of the elements of the alternative offence is that the unlawful grievous bodily harm was committed in the course of an aggravated home burglary. We do not accept the correctness of this proposition. In our opinion, the circumstance that an offence under s 297(1) was committed in the course of an aggravated home burglary is not an element of that offence.
Section 297(1) of the Code states:
Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.
It is plain from the statutory language that the elements of this offence are that the offender does grievous bodily harm (a term defined in s 1(1) of the Code) and that the doing of the grievous bodily harm was unlawful. Section 297(1) provides for a single maximum penalty of 10 years' imprisonment.
Section 297(5) of the Code relevantly states:
If the offence is committed by an adult offender, then the court sentencing the offender -
(a)if the offence is committed in the course of conduct that constitutes an aggravated home burglary, must, notwithstanding any other written law, impose a term of imprisonment of -
…
(ii)at least 75% of the term specified in subsection (1), in any other case[.]
Section 297(5)(a)(ii) specifically applies to an offence committed under s 297(1). The effect of s 297(5)(a)(ii) is not to create a further element to an offence contrary to s 297(1), or a separate offence. Rather, the effect is to prescribe a minimum sentence of, effectively, 7 years 6 months' imprisonment, which must be applied notwithstanding any other written law,[37] when an offence under s 297(1) is committed in a course of conduct which constitutes an aggravated home burglary. In such a circumstance, the prescription of a mandatory minimum penalty 'fixes one end of the relevant yardstick' for the exercise of the sentencing discretion,[38] the other, higher, end being the maximum penalty.
[37] Such an other written law is s 7(3) of the Sentencing Act, which states that an offender is not liable to a greater statutory penalty unless the offender has been charged and convicted of committing the offence in those circumstances. Despite s 7(3) being overriden by s 297(5) of the Code, it remains good practice for the existence of a circumstance which gives rise to a mandatory minimum offence to be pleaded in the indictment, as occurred in this case. See the discussion in Larsen v The State of Western Australia [2019] WASCA 181 [117] ‑ [124] (Mazza & Beech JJA).
[38] Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 [48] (French CJ, Hayne, Crennan, Kiefel & Bell JJ).
As the evidence necessary to establish the commission of the alternative offence does not establish all of the elements of count 1, and having regard to its narrow application, s 11(1) of the Sentencing Act has not been engaged. Ground 1 has not been made out. Leave to appeal in respect of ground 1 should be refused.
This outcome does not mean that the principle against double punishment is inapplicable. As the sentencing judge rightly recognised, because of the factual overlap between the offences committed by the appellant, the principle still applied to the appellant's sentencing. It is a matter which had a bearing upon the application of the totality principle and is, thus, relevant to the determination of ground 2. It is to this ground that we now turn.

Ground 2 - disposition

The appellant does not challenge the individual sentences that were imposed. Ground 2 alleges that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle. As noted above, ground 2 alleges a species of implied error.
In many cases, in applying the first limb of the totality principle, the identification of an implied error depends upon the appeal court's assessment that the overall result is either manifestly excessive or manifestly inadequate.
In the present case, however, the identification of an implied error depended not so much on the overall result of 9 years' imprisonment, as in the fact that, having been sentenced to 7 years 6 months' imprisonment on the alternative to count 2, a cumulative sentence was imposed in relation to count 1, in circumstances in which, factually, count 1 involved little (or no) additional criminality.
As discussed above, a relevant consideration in the application of the first limb of the totality principle in cases where there is material factual overlap, is to ensure that an offender is not punished twice (or more) in respect of facts which are common. As noted in Beekman, there is no single correct mechanism for avoiding double (or more) punishment. It is open to a sentencing court to do so by reducing the otherwise appropriate sentence for an offence, or by ordering partial or total concurrency in relation to two or more offences.[39]
[39] Beekman [44].
In the present case, the State accepted that the sentence of 7 years 6 months' imprisonment on the alternative to count 2 was an appropriate sentence and was not inadequate. In those circumstances, the application of the totality principle operated such that, unless there was some additional element of criminality involved in count 1, the common law principle against double punishment required that the sentence for that count be wholly concurrent with the sentence for count 2.
We accept that the sentence 7 years 6 months' imprisonment on the alternative to count 2 was not in error and properly reflected all relevant sentencing considerations.
In that regard, there can be no doubt that the objective seriousness of the appellant's conduct was very serious. This is apparent from the summary of the facts of the offending set out at [16] ‑ [21] above. The aggravated home burglary involved the forcible entry, contrary to a violence restraining order, at night, into Mr Lyon's home, when he and others were sleeping and therefore highly vulnerable. The appellant was armed with a dangerous weapon, namely a machete. He forced his way into Mr Lyon's bedroom and, without any justification, struck him with the machete, inflicting serious injuries which constituted grievous bodily harm. The potential for more serious injury or death is obvious. Not only did the appellant terrify Mr Lyon, he terrified the other occupants of the house.
There were, however, a number of mitigating factors in the present case. These are summarised between [38] - [42] above, and included the appellant's plea of guilty on count 1; the appellant's offer to plead guilty to the alternative offence more than a year before the trial; that there was a causal link between the appellant's mental health at the time of the offences and the offending; that the appellant was remorseful; and that the appellant's mental illnesses significantly reduced the need for denunciation and general deterrence, although specific deterrence remained a relevant sentencing consideration.
The sentence 7 years 6 months' imprisonment on the alternative offence was therefore appropriate and not in error. The question which then arises is whether count 1 involved any additional criminality, such as to justify any accumulation of the sentences.
In that regard, it is unnecessary to conduct a detailed analysis of the facts and circumstances of the two offences. It is clear that there was a very substantial, if not complete, factual overlap between them. In oral argument before this court, the respondent submitted that an additional factor relevant to count 1 which was not present in the alternative offence was that there were multiple victims of count 1, and only one victim in respect of the alternative offence. We do not accept this submission. Although Mr Lyon was the primary victim in respect of the alternative offence, as the sentencing judge recognised, the other occupants of the house were also terrified by the conduct the subject of the alternative offence, and were considered, at least for the purposes of giving a victim impact statement, to be victims of the alternative offence as well as of count 1.
In those circumstances, in our view, count 1 involved no additional criminality to that already reflected in the sentence for the alternative to count 2, such as might have justified any accumulation of the sentences. In those circumstances, in our view, by imposing a cumulative sentence on count 1, the total effective sentence failed to reflect the overall criminality and thereby infringed the first limb of the totality principle.
Ground 2 has been made out. It is therefore necessary for this court to resentence the appellant.

Resentencing

This court has all the materials necessary to resentence the appellant. It is unnecessary to repeat the facts and circumstances of the offending; the appellant's personal circumstances, including the opinions of Dr Brett; the contents of the victim impact statements; and the general sentencing principles which apply to the offences the appellant committed.
With respect to the plea of guilty the appellant entered in respect of count 1, the plea was indicated in February 2022, that is, about a year after the appellant was charged, and about 14 months prior to trial. The reduction given under s 9AA of the Sentencing Act by the sentencing judge was very generous. We would give a s 9AA reduction of 15%.
Count 1 was a very serious offence of its kind. Bearing in mind the plea of guilty and the other mitigating circumstances, we would sentence the appellant to 5 years' imprisonment.
The appellant must be sentenced to at least 7 years 6 months' imprisonment for the alternative offence. As recently explained by the High Court in Hurt v The King,[40] a mandatory minimum sentence serves a double function: first, it restricts the sentencing power to the minimum period of imprisonment; secondly, it provides a yardstick, the opposite of the maximum term of imprisonment, for the exercise of the sentencing discretion. As a yardstick, it imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances.[41]
[40] Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485.
[41] Hurt [54] (Edelman, Steward & Gleeson JJ).

Having regard to all of the facts and circumstances of the alternative offence, including the mitigatory factors, it might be thought that the offence was not in the least serious category, and that a sentence somewhat greater than 7 years 6 months' imprisonment was justified. The task of a sentencing court in such a position is complicated, to a degree, by the fact that for an offence under s 297(1) which is subject to a mandatory minimum, there is little room to move between the mandatory minimum and the statutory maximum. This is especially so where an offender pleads guilty.
However, in the present case, the State accepted that the sentence of 7 years 6 months for the alternative offence was not inadequate.[42] Having regard to this concession, we would impose a sentence of 7 years 6 months' imprisonment on count 2. In order to reflect the principle of double punishment, we would order that the sentence on count 1 and the alternative offence be served concurrently with each other. Thus, the appellant should be resentenced to a total effective sentence of 7 years 6 months' imprisonment.
[42] See appeal ts 26.

Conclusion and orders

Ground 1 has not been made out. Leave to appeal in respect of this ground should be refused. Ground 2 has been made out. We would resentence the appellant in accordance with [81] above.
The orders that we would make are as follows:
1.Leave to appeal is refused on ground 1.
2.Leave to appeal on ground 2 is granted.
3.The appeal is allowed.
4.The sentences imposed by Egan DCJ on 9 May 2023 are set aside.
5.The appellant is resentenced on count 1 to 5 years' imprisonment, and on the alternative offence to 7 years 6 months' imprisonment. These sentences are to be served concurrently with each other. Thus, the appellant is resentenced to a total effective sentence of 7 years 6 months' imprisonment. The appellant remains eligible for parole and the sentences are backdated to commence on 12 February 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
12 NOVEMBER 2024