Mansfield v The State of Western Australia - [2025] WASCA 110

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MANSFIELD -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 110
CORAM:   MAZZA JA
HALL JA
ARCHER JA

HEARD:   2 JULY 2025
DELIVERED          :   18 JULY 2025
FILE NO/S:   CACR 47 of 2025
BETWEEN:   DYLAN IAN MANSFIELD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARBAGALLO DCJ
File Number            :   IND BUN 95 of 2024

Catchwords:

Criminal law - Appeal against sentence - Two offences, the second of which was subsumed within the first - Term of imprisonment imposed for each offence - Breach of s 11 of the Sentencing Act 1995 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 41(2)
Sentencing Act 1995 (WA), s 11

Result:

Application for extension of time within which to appeal granted
Leave to appeal on ground 2 granted
Leave to appeal on grounds 1, 3 and 4 refused
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	D S Hunter
Respondent	:	L M Fox SC

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
Eldridge v The State of Western Australia [2020] WASCA 66
Goddard v The State of Western Australia [2023] WASCA 164
Kelly v The State of Western Australia [2020] WASCA 29
NSA v The State of Western Australia [2023] WASCA 53
Ripper v The State of Western Australia [2024] WASCA 30
Ritchie v The State of Western Australia [2023] WASCA 120
Rowsell v The State of Western Australia [2015] WASCA 2
Ugle v The State of Western Australia [2018] WASCA 97
Winmar v The State of Western Australia [2018] WASCA 155

JUDGMENT OF THE COURT:

Introduction

On 8 March 2024, the appellant broke into a house and stole a safe containing silver ingots, gold nuggets, other valuables and personal documents. The total value of the stolen property was $62,371.
The appellant was charged with two offences. The first charge was that the appellant had committed a home burglary, by being in the home of the alleged victims without their consent and committing the offence of stealing while in that home. The second charge was that the appellant had committed the offence of stealing in aggravating circumstances, by stealing the safe and its contents from a dwelling when the value of the property exceeded $10,000.
The appellant pleaded guilty to both charges. The learned sentencing judge imposed a term of 3 years' imprisonment for the home burglary, and 12 months' imprisonment for the stealing. Her Honour ordered that the sentences be served concurrently.
The appellant appeals against that sentence on four grounds. Ground 2 alleges that the sentencing judge erred in imposing a sentence in relation to the stealing charge, because the legal and factual elements of that charge were also part of the elements of the burglary charge. By imposing a sentence on the stealing charge, the sentencing judge breached the prohibition in s 11(1) of the Sentencing Act 1995 (WA) against sentencing a person twice on the same evidence.
The State concedes that her Honour made that error. As we will explain below, we accept that concession. Accordingly, we would set aside the sentences imposed by the sentencing judge and resentence the appellant.

The offences

The facts of the offending are as follows.[1]
[1] See WAB 76 ‑ 79.
On the afternoon of 8 March 2024, the appellant parked a ute near the side fence of a rural property in Worsley. He had borrowed the ute from his partner's father and removed the registration plates. He jumped the fence to enter the property. He was wearing gloves, a beanie, and a mask that covered most of his face.
The appellant used a metal jemmy bar to force open a rear sliding door of the house and went inside. He stole a set of Yamaha keys from the kitchen and rummaged through drawers in the spare room and main bedroom.
In the study, there was a metal safe measuring 100 cm by 40 cm. The safe contained six 1 kg silver ingots and 63 g ‑ 68 g of gold nuggets.[2] The safe also contained other valuables and personal items, and personal documents including passports. The total value of the property in the safe was $62,371.
[2] The facts read by the prosecution stated that 68 g of gold had been stolen, but the appellant's counsel asserted it was 63 g. The sentencing judge did not determine the issue as it would not have made any material difference to the sentence - see WAB 76 ‑ 77.
The appellant put the safe onto a chair and pushed it towards the front door of the house. He then left the house, opened a vehicle access gate, and drove the ute up to the front of the house. He loaded the safe into the tray of the ute and drove away.
The appellant's conduct outside the house was recorded on a high‑definition CCTV system.
On 21 March 2024, police searched the appellant's partner's home and located the ute, the jemmy bar, and various documents and items of jewellery belonging to the victims of the burglary. The appellant subsequently participated in an electronically recorded interview at Bunbury Police Station. He denied being responsible for the burglary and, in the words of the sentencing judge, 'attempted to develop some elaborate series of events that ultimately got [him] tied up in knots'.[3]
[3] WAB 79.
The appellant was charged with the two offences on 21 March 2024 and remanded in custody from that time. He was also charged with two counts of gaining a benefit by fraud, for selling some of the silver ingots and gold nuggets. The fraud charges were dealt with in the Magistrates Court.[4] Although some of the stolen property was recovered, property valued at $50,056 was not recovered.
[4] WAB 84.
At the time of committing the offences, the appellant was on bail for an aggravated burglary committed at Bunnings Australind on 14 December 2023 (Bunnings burglary).

The sentences

The appellant was sentenced on 27 February 2025.
The sentencing judge reduced the sentences by 25% to take into account the early guilty pleas, under s 9AA of the Sentencing Act. Her Honour sentenced the appellant to 3 years' imprisonment for the home burglary offence and 12 months' imprisonment (to be served concurrently) for the stealing offence. The sentences were backdated to 21 March 2024, when the appellant was first taken into custody. Her Honour also made a compensation order in the sum of $50,056.
Later the same day, the appellant was dealt with in the Magistrates Court for the two fraud offences and three other offences. He was given a total effective sentence of 7 months' immediate imprisonment, to be served concurrently with the sentences imposed by the District Court.

The sentences imposed by the Magistrates Court have not been appealed. Nevertheless, as the sentences imposed by the District Court will be set aside, this court has the power to vary any sentence imposed at or after the time the District Court sentences were imposed and that took into account those sentences.[5]
[5] Criminal Appeals Act 2004 (WA), s 41(2).

Ground 2 - a sentence imposed on each count

Ground 2 alleges that the sentencing judge erred in imposing a sentence in relation to the stealing charge, because the legal and factual elements of that charge were also part of the elements of the burglary charge.
This ground of appeal turns on s 11(1) of the Sentencing Act, which states:
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.
This provision only applies if the evidence necessary to establish all the elements of one offence also establishes, without more, all the elements of, and therefore the commission of, another offence. It does not apply if each offence requires some distinct additional evidence to establish the commission of that offence.[6]
[6] Beekman v The State of Western Australia [2022] WASCA 130 [46], citing Kelly v The State of Western Australia [2020] WASCA 29 [29].
The appellant was charged with the offences of aggravated home burglary (count 1) and stealing (count 2). The stealing offence was the grounding offence for the aggravated home burglary offence. The appellant points out that the evidence necessary to prove the commission of count 1 (stealing from the house while being there without consent) also proves the commission of count 2 (stealing from the house). No distinct additional evidence was required to establish the commission of count 2.
It is true that count 2 included an allegation that the value of the property stolen from the house exceeded $10,000. However, that allegation was a circumstance of aggravation that increased the maximum penalty to which the appellant was liable. It was not an element of count 2. Section 11(1) applies to the evidence necessary to establish the offence, not the maximum penalty.
Accordingly, by s 11(1), the appellant could not be sentenced for both offences.
The sentencing judge ordered that the sentence for the stealing offence be served concurrently with the sentence for the home burglary offence. There was no impact on the total effective sentence. However, by s 11(1), the sentencing judge was precluded from sentencing the appellant in respect of count 2, even if the sentence her Honour imposed had no practical effect. As no distinct additional evidence was required to establish the commission of count 2, her Honour was required to impose no penalty in relation to count 2.[7]
[7] Beekman [43] - [49], [60]. See also Ritchie v The State of Western Australia [2023] WASCA 120 [64] - [66], [80].
Ground 2 has been established. The sentence imposed by the sentencing judge should be set aside and the appellant resentenced.[8]
[8] See NSA v The State of Western Australia [2023] WASCA 53 [57], [99], [134].

Other grounds of appeal

Ground 1 asserts that the sentencing judge erred by finding[9] that the offending was aggravated by the appellant's knowledge that the house had a safe in it and the occupants would not be at home, when that assertion was not pursued by the prosecution.
[9] This is the effect of the complaint in ground 1, as can be seen from the appellant's submissions in WAB 20 [28].
Ground 3 alleges that the sentences imposed in relation to both offences were manifestly excessive as to length and type.
Ground 4 alleges that the sentencing judge erred in law by not properly revisiting and reconsidering factors relevant to the offences and personal to the appellant when determining that it was not appropriate to suspend the sentences of imprisonment.
As a result of the success of ground 2, the sentences imposed by the sentencing judge will be set aside. It is therefore unnecessary to determine the other grounds of appeal. Nevertheless, we observe that, in our view, there is no merit in any of the other grounds of appeal.
In relation to ground 3, we will also explain why we do not accept the appellant's submission that sentences imposed in comparable cases indicate that the sentence imposed in relation to the home burglary was manifestly excessive.

The appellant accepts that the circumstances of burglary offences can vary widely and attract a wide range of sentences. Nevertheless, he refers to the sentences imposed in four cases: Ugle v The State of Western Australia,[10] Ripper v The State of Western Australia,[11] Rowsell v The State of Western Australia,[12] and Winmar v The State of Western Australia.[13] Unsurprisingly, each of those cases involved different mitigating and aggravating features.
[10] Ugle v The State of Western Australia [2018] WASCA 97.
[11] Ripper v The State of Western Australia [2024] WASCA 30.
[12] Rowsell v The State of Western Australia [2015] WASCA 2.
[13] Winmar v The State of Western Australia [2018] WASCA 155.
The appellant submitted that Ripper and Winmar were the two most similar to the appellant's case.
In our view, Ripper is not an appropriate comparator.
In Ripper, the primary judge had sentenced the offender for two counts of home burglary. The primary judge imposed a term of 2 years 6 months' imprisonment on count 1. His Honour said that he had reduced that term from 3 years' imprisonment for totality reasons. The primary judge imposed a term of 2 years' imprisonment on count 2, and ordered that term be served cumulatively on the sentence imposed for count 1. The total effective sentence was therefore 4 years 6 months' immediate imprisonment.
Ms Ripper successfully appealed against her conviction on count 2. The parties agreed that this court had the power to resentence Ms Ripper on count 1, by s 30(6) of the Criminal Appeals Act. That provision provides:
If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence -
(a)that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and
(b)that took into account the sentence for offence A.
The court noted that the power in s 30(6) of the Criminal Appeals Act is discretionary, and that it is to be exercised to the extent, and only to the extent, that the court considers it is appropriate to do so.[14] It said:[15]
The State did not submit that the sentence of 3 years' imprisonment that the trial judge would otherwise have imposed was inadequate or that this court should, in exercising the power in s 30(6) of the Criminal Appeals Act, impose a sentence of greater than 3 years' imprisonment. In any event, absent strong reasons for doing so, the court will generally not vary a sentence for another offence in a manner which results in a total effective sentence that is more severe than the sentence imposed at first instance for that offence and 'offence A'.
[14] Ripper [141]
[15] Ripper [142].
The court varied the sentence that was imposed for count 1 by ordering that the appellant be sentenced to 3 years' imprisonment, noting that this was the sentence the primary judge said he would have imposed had the appellant been sentenced only for count 1.[16]
[16] Ripper [147].
In these unusual circumstances, the penalty imposed by this court does not provide a marker of any upper limit or an indication of the appropriate range of sentences.
The offender in Winmar stole property worth just under $60,000 during a home burglary, none of which was recovered. He was using cannabis and methylamphetamine daily at the time of the offending. He was 22 years old and pleaded guilty at the first reasonable opportunity. The sentencing judge imposed a term of 3 years 3 months' imprisonment. Mr Winmar successfully appealed against his sentence on grounds which included that he had been given an inadequate discount for his pleas of guilty. In resentencing Mr Winmar, this court reduced his sentence by 25% on account of his pleas of guilty and imposed a sentence of 3 years' imprisonment.
The primary difference between Mr Winmar's position and the appellant's position is that Mr Winmar's criminal history was significantly worse than the appellant's. In particular, at the time of the home burglary the subject of his appeal, Mr Winmar had been previously convicted of four aggravated burglary offences for which he initially received intensive supervision and suspended imprisonment orders and later, when he breached those orders, 9 months' immediate imprisonment. By comparison, the appellant had no prior convictions for burglary at the time of the current offending and had never been sentenced to a term of imprisonment.
There are two reasons why the fact that the appellant's record is not as bad as Mr Winmar's record is of limited assistance to the appellant.
First, the appellant had a criminal record. That is, both he and Mr Winmar were not entitled to any mitigation on the basis that they were of prior good character. In that context, the fact that the appellant's record was not as bad as Mr Winmar's record is a modest point of distinction.
Second, the appellant was on bail in relation to the Bunnings burglary charge at the time of the current offending. This was an aggravating feature of the appellant's offending, which was not present in Mr Winmar's case.
There is a more fundamental difficulty in the appellant's reliance on Winmar. Winmar was decided in 2018, before this court's decision in Eldridge v The State of Western Australia.[17] In Eldridge, the court said that home burglaries are serious and prevalent offences, and that there has long been a recognition that sentences for home burglary need to be firmed up.[18]
[17] Eldridge v The State of Western Australia [2020] WASCA 66.
[18] Eldridge [64].

Resentencing

During the hearing of the appeal, the appellant said that, if the court resentenced him, he would seek to adduce additional evidence as to matters that have occurred since he was sentenced. Where an appellant intends to rely on such material if the appeal is successful, the appellant is expected to file an application to adduce additional evidence, and an affidavit annexing that additional evidence, prior to the hearing of the appeal. Nevertheless, the court gave the appellant leave to file such an application and affidavit by 4.00 pm on 4 July 2025. An application and affidavit were duly filed by that deadline. This court now has all the materials necessary to resentence the appellant.

The seriousness of the offending

Home burglary not committed in circumstances of aggravation attracts a maximum penalty of 18 years' imprisonment.[19]
[19] Criminal Code, s 401(2)(b).
There is no tariff for home burglary, whether aggravated or non‑aggravated. This is hardly surprising given the significant variety of circumstances in which offences of this kind are committed and the personal circumstances of those who commit them. Offences of home burglary are prevalent. It is well recognised that sentences for home burglary need to be firmed up.[20]

Aggravating factors

[20] Goddard v The State of Western Australia [2023] WASCA 164 [26], citing, among other cases, Eldridge [64].

There was clearly an element of planning involved. The appellant had taken the registration plates off the ute before driving it to the home. He wore gloves to minimise the chance of leaving fingerprints or DNA at the scene. He wore a beanie and a mask covering most of his face in an attempt to hide his identity.
The monetary value of the property stolen was $62,371. The stolen property also included passports, identification cards and other personal items.
At the time of committing the offences, the appellant was on bail for the Bunnings burglary charge.

Neutral factor

During the sentencing hearing, the sentencing judge asked whether the appellant knew that the occupants would not be at home and that there was a safe in the house. The appellant denied this.[21] Ground 1 of the appeal alleges that the sentencing judge wrongly sentenced the appellant on the basis that he did know that the occupants would not be at home and that there was a safe in the house. Had it been necessary to decide ground 1, we would have rejected it. Her Honour made it plain that she was not sentencing on that basis.[22]
[21] WAB 50 - 51, 73.
[22] WAB 88.
In any event, we observe that the offence would not be less serious if the appellant did not know that the occupants would not be home. As the sentencing judge pointed out, if he did not know this, there was a risk that he would be confronted by an occupant. As he was carrying a metal jemmy bar when he entered the house, there was a risk that any such confrontation could become violent.[23] Further, the appellant could not have contended that his lack of knowledge showed that the offence was spontaneous. There was ample evidence to show that the offence was pre‑planned.

The appellant's personal circumstances

As at the time of sentence

[23] WAB 88 - 89.

Apart from the matter the subject of ground 1, the appellant does not challenge any of the sentencing judge's findings.
The appellant was 20 years old when he committed the offences.[24] He was 21 years old at the time he was sentenced in the District Court, and at the hearing of the appeal.
[24] WAB 80.
The appellant's childhood was difficult. His parents separated when he was 2 years old. He has had no contact with his father since he was 4 years old. He suffered considerable physical abuse from his mother's subsequent partners.
Over the years, the appellant's contact with his mother has varied and their relationship had been distant. However, by the time of sentencing, their relationship was being re‑established.[25]
[25] WAB 52.
The appellant has been in a relationship for about seven years. He and his partner had a child in 2023. The relationship has had its ups and downs, including some periods of separation. His partner has not used drugs for many years and remains supportive of him.[26]
[26] WAB 82; Psychological report of Steve Jobson dated 27 September 2024 (Psychological report) [7].
The appellant was diagnosed with ADHD when he was 11 years old and has been prescribed various medications. The appellant stopped taking ADHD medication at one point and began to 'self‑medicate' using illicit drugs.[27]
[27] WAB 81.
The appellant commenced using cannabis, alcohol and methylamphetamine as a teenager. He has consistently used methylamphetamine and alcohol since the age of 18.[28] He said that he continued to use methylamphetamine even when he was working in the mining industry, and that, by the time of the offending, he was using it daily.[29]
[28] WAB 16 [15].
[29] Pre-sentence report dated 27 September 2024 (Pre-sentence report), 3.
The appellant struggled at school and left at the end of year 9. He had worked intermittently. For about 12 months prior to his arrest, he had not worked due to his drug use. He told the author of the pre‑sentence report that he supported himself by stealing goods and selling them on, and that he also received financial help from his partner.[30]
[30] WAB 81; Pre‑sentence report, 3.
The appellant told the author of the pre‑sentence report that he did not have a drug problem because he did not use drugs in custody. The sentencing judge noted that this was a very naive view.[31]
[31] WAB 83.
The appellant told the author of the psychological report, Steve Jobson, that a close friend had died in June 2023 and that he was later dismissed from his job. He told Mr Jobson that he was dismissed because he was 'late a few times' and sleeping at work.[32] The appellant told Mr Jobson that this resulted in considerable financial difficulties and a subsequent escalation of his methylamphetamine use. Mr Jobson also noted that the appellant's baby was born in August 2023, which may have caused him additional stress.
[32] Psychological report [8].
Mr Jobson reported:[33]
[The appellant's] offending appears to have been considerably influenced by a combination of his ADHD‑related impulsivity and the long‑term impact of his early dysfunctional childhood, marked by exposure to violence, substance abuse, and general instability. It is theorised that these early adverse experiences likely impacted his ability to develop healthy decision‑making skills, increasing the likelihood of vulnerability to external stressors and impulsive actions later in life.
In addition, together with his apparent difficulty considering long‑term consequences of his actions, a pertinent characteristic of his ADHD subtype, [the appellant's] difficulty making effective decisions appears to have been more pronounced during the period of emotional and financial distress. This included his job loss, the death of a close friend, and the increased pressure of becoming a young parent at age 19. It is further hypothesised that these compounded difficulties intensified his desperation, resulting in an escalation of his methylamphetamine use as a form of self‑medication, to cope with his depression, anxiety, and emotional distress.
[33] Psychological report [23] ‑ [24].
In terms of the risk of the appellant re‑offending, Mr Jobson said that there were numerous risk factors, and therefore treatment needs. He also noted that psychometric test results suggested some level of antisocial attitudes and beliefs. Mr Jobson said that the appellant's primary risk factor was his use of illicit substances 'as a means of self‑medicating'.[34]
[34] Psychological report [25].
Mr Jobson also noted that the appellant would likely require substantial support after his release from prison.
The sentencing judge did not accept that the appellant had stopped taking the ADHD medication because it was more expensive than illicit drugs. Her Honour noted that the appellant's decision to stop taking the medication was entirely voluntary.[35] This reduced the mitigatory weight that would otherwise be given to the fact that the appellant's ADHD affected his impulse control.
[35] WAB 82.
The appellant's criminal history shows regular offending since he was 14 years old. His history does not record the commission of any offences in the period from 18 September 2021 to 9 August 2023, which he attributed to being employed at that time.[36] However, he accepted that he was using methylamphetamine throughout that period.
[36] WAB 52.
At the time of committing the current offences, the appellant's record largely involved traffic, minor drug[37] and dishonesty offences. He had never been sentenced to a term of imprisonment. However, at the time of committing the current offences, the appellant was on bail in relation to the Bunnings burglary charge, and he has since been convicted of that charge.
[37] He was convicted of one offence of possessing cannabis with intent to sell or supply, but his other drug offences were all simple offences.
The sentencing judge was unable to make a finding that the appellant was remorseful. Her Honour noted that the appellant had lied extensively to the police and sought to blame others for being a bad influence on him.[38]

Events post sentencing

[38] WAB 85 - 86.

The additional material filed by the appellant indicates that he is taking positive steps towards rehabilitating himself.
Significantly, he sold his car for $5,000 to pay for a substance abuse program, and has been attending that program. He has attended nine counselling sessions, for a total of 13.5 hours. It appears that, if he attends five more sessions, he will complete the program. The program facilitator reports that the appellant has attended each session with openness and a willingness to learn.
Another positive development is that his relationship with his mother appears to have been re‑established. She provided a letter of support for him. She said that she has seen a 'massive change' in him and that he has her complete support.
A third development is that the appellant's grandparents have offered to let him live with them when he is released from custody. The offer was not made lightly. His grandfather became a quadriplegic four years ago and is heavily reliant on his 76‑year‑old wife. Nevertheless, they have made the offer so that the appellant will be able to live in Perth, away from his previous associates.
The other materials filed by the appellant are a further letter of support from his partner and from the coordinating chaplain at Bunbury Prison. Both remain supportive of him. The appellant's partner also said that the appellant's attitude towards drugs and criminal behaviour had noticeably improved since he began the drug abuse program.

Mitigating factors

The appellant pleaded guilty at the first reasonable opportunity. This is a significant mitigating factor. Like her Honour, we would give a discount of 25% for the appellant's pleas of guilty, under s 9AA of the Sentencing Act.
The appellant's youth is also a significant mitigating factor.
In addition, the new material filed by the appellant indicates the appellant is trying to rehabilitate himself and that there is reason to be hopeful that he will be able to become a productive member of society.

Appropriate penalty

We would impose no penalty in relation to the aggravated stealing offence, under s 11(1) of the Sentencing Act.
The home burglary was serious.
Home burglary not committed in circumstances of aggravation attracts a maximum penalty of 18 years' imprisonment.[39] Offences of home burglary are prevalent. Sentences for home burglary need to be firmed up.
[39] Criminal Code, s 401(2)(b).
There were several aggravating factors of this home burglary. There was clearly an element of planning involved. The monetary value of the property stolen was $62,371. The stolen property also included passports, identification cards and other personal items. Most of that property has not been recovered. At the time of committing the offences, the appellant was on bail for an aggravated burglary.
There are some significant mitigating factors. In particular, the appellant's youth and his pleas of guilty.
In our view, despite the mitigating circumstances, a term of immediate imprisonment is the only option open.
Like her Honour, we would give a discount of 25% for the appellant's pleas of guilty, under s 9AA of the Sentencing Act.
Had we been sentencing the appellant on the material available to the sentencing judge, we would have imposed the same sentence as her Honour did. However, the new material has caused us to consider that a lower sentence should be imposed. In particular, the appellant has taken significant steps towards rehabilitating himself. He will also be able to live with his grandparents in Perth, away from his previous associates, on his release from prison. We would assess the need for personal deterrence, and the appellant's risk of re-offending, as lower now than it was at the time he was sentenced in the District Court.
We would therefore impose a term of 2 years 6 months' immediate imprisonment.
Like the learned sentencing judge, we would backdate the sentence to 21 March 2024 and order that the appellant be eligible for parole.

Sentences imposed in the Magistrates Court

After the appellant was sentenced in relation to the offences the subject of this appeal, later the same morning, he was dealt with in the Magistrates Court for the two fraud offences and three other offences (Magistrates Court offences). In imposing those sentences, the learned magistrate took into account the sentences that had been imposed in the District Court.[40] The parties acknowledge that this court has the power to resentence the appellant on the Magistrates Court offences, under s 41(2) of the Criminal Appeals Act.
[40] Transcript of 27 February 2025 in the Bunbury Magistrates Court, ts 10.
As noted earlier, the two fraud offences (BU 1775 ‑ 1776 of 2024) were connected to the offences the subject of this appeal. In each offence, the appellant sold some of the property he had stolen in the home burglary. In the first, he sold gold nuggets and a 1 kg silver ingot for $3,200 on 9 March 2024. In the second, he sold four 1 kg silver ingots for $3,959 on 18 March 2024.
The remaining three Magistrates Court offences were not connected to the offences the subject of this appeal.
The first was the Bunnings burglary (BU 5905 of 2023). The facts were relevantly as follows:[41]
[A]bout 5 pm on Wednesday 13 December 2023, the accused attended the Australind Bunnings ... The accused arrived in an unknown white Holden Colorado. …
The accused retrieved a trolley and loaded several items into it including a vision smart lock valued at $599, a smart door lock valued at $399 and a Samsung Mortise wi‑fi lock valued at $748. The accused walked to the rear of the store where there is a large steel gate that was closed. The accused placed the three items into a nearby wheelie bin and closed the lid. The accused then returned to the large steel gate where he played with the locking mechanism for a short time before placing a quick‑grip clamp on the door and leaving the area. The accused was then seen walking back to the unknown white Colorado, removing the front registration plate and driving off.
At about 12.30 am on Thursday 14 December 2023, the accused returned to the location and returned to the gate he had previously been during the day. The accused used an unknown object to force open the gate, causing approximately two thousand dollars worth of damage, entered the store and proceeded directly to the wheelie bin with the items previously prepared inside. The accused then left the area to the waiting same unknown white Colorado, put the wheelie bin into the rear tray and [got] into the passenger seat. The vehicle was then driven away by an unknown co‑offender.
[41] Transcript of 27 February 2025 in the Bunbury Magistrates Court, ts 3.
The second offence was the stealing encompassed in the first offence (BU 5906 of 2023).
The third offence (BU 5474 of 2024) was possession of a firearm in circumstances of aggravation, contrary to s 19(1)(c) of the since repealed Firearms Act 1973 (WA). During a search of the appellant's vehicle on 21 March 2024, the police found a sawn‑off Bauer .22 calibre rifle, which had had its serial number removed, and its barrel modified. The appellant's DNA was found in the inner grip and trigger. The appellant has never held a firearms licence.
The sentencing magistrate noted that the Bunnings burglary was plainly planned, and was aggravated by the fact that it was committed in company. Her Honour further observed that the firearms offence was serious.[42] Nevertheless, her Honour recognised that '[t]otality is the issue'.[43] That is, in determining the appropriate sentence, her Honour understood that she needed to take into account the fact that the appellant had been sentenced to 3 years' imprisonment earlier that day in the District Court.
[42] Transcript of 27 February 2025 in the Bunbury Magistrates Court, ts 10.
[43] Transcript of 27 February 2025 in the Bunbury Magistrates Court, ts 6.
The sentencing magistrate took into account the 59 days the appellant had served in custody in relation to the Bunnings burglary (and which could not have been, and had not been, taken into account in the District Court). Her Honour gave a discount of 25% for the appellant's pleas of guilty, under s 9AA of the Sentencing Act.
The sentencing magistrate imposed no penalty in relation to the stealing offence, under s 11(1) of the Sentencing Act. Her Honour imposed sentences of immediate imprisonment for each of the other offences, being 7 months on the aggravated burglary, 3 months on each of the two fraud offences, and 4 months on the firearms offence. Her Honour ordered that the sentences be concurrent with one another and with the District Court sentences.
It is clear that the sentences imposed by the sentencing magistrate were made entirely concurrent with the District Court sentences due to the totality principle. Therefore, we have considered whether we should interfere with the sentences imposed for the Magistrates Court offences in light of the reduced sentence we would impose for the home burglary, under s 41(2) of the Criminal Appeals Act.
We have concluded that we should.
The Magistrates Court offences were serious.
Like the home burglary the subject of the appeal, the Bunnings burglary was pre‑planned. It could not be attributed to, or explained by, the impulsivity of youth or the appellant's ADHD.
Similarly, the fraud offences, involving the sale of property stolen in the home burglary, cannot be attributed to impulsivity.
As for the firearm offence, the sentence of 4 months' imprisonment was lenient. The offence was the possession of a firearm without a licence or permit to do so, in two circumstances of aggravation. First, the firearm's serial number had been removed.[44] Secondly, the firearm had been altered[45] ‑ its barrel had been shortened. Shortening the barrel would make it easier to conceal. Firearms modified in these ways are often found in connection with criminal offences. The maximum penalty for this offence was 7 years' imprisonment.[46]
[44] Firearms Act 1973, s 19(1ac)(c).
[45] Firearms Act 1973, s 19(1ac)(d).
[46] Firearms Act 1973, s 19(1ac).
Having imposed a lower sentence than the sentencing judge for the home burglary, we consider that the totality principle does not require that all of the sentences imposed for the Magistrates Court offences be entirely concurrent with the home burglary sentence. Further, the Bunnings burglary and the firearm offence were entirely unrelated to the home burglary.
Like the sentencing magistrate, we would give a discount of 25% for the appellant's pleas of guilty, under s 9AA of the Sentencing Act.
We would also take into account the 59 days the appellant had served in custody in relation to the Bunnings burglary, by reducing the length of the sentences we would otherwise impose.
We would also take into account the appellant's youth, his difficulties, and his positive efforts to rehabilitate himself.
We would impose no penalty in relation to the stealing offence (BU 5906 of 2023), under s 11(1) of the Sentencing Act.
In relation to the other four offences, we would impose the following sentences, subject to the totality principle:
1.10 months' immediate imprisonment for the Bunnings burglary (BU 5905 of 2023);
2.3 months' immediate imprisonment for each of the two fraud offences (BU 1775 ‑ 1776 of 2024); and
3.6 months' immediate imprisonment for the firearm offence (BU 5474 of 2024).
For totality reasons, we would reduce the sentence we would impose for the Bunnings burglary to 6 months. We would order that that sentence be served cumulatively on the home burglary sentence imposed in the District Court. For totality reasons, we would order that the sentence imposed for each other Magistrates Court offence be served concurrently with the Bunnings burglary sentence and the sentence for the home burglary.

The effect of this is that, while the appellant was successful in relation to ground 2 of the appeal, his total effective sentence remains the same.

Extension of time

The appellant was sentenced on 27 February 2025. The appeal notice was filed on 3 April 2025, two weeks late. The appellant's application for an extension of time within which to appeal was referred to the hearing of the appeal.
The appellant's counsel swore an affidavit explaining that the appeal notice was filed out of time because he did not receive a grant of legal aid to provide an opinion on the merits of an appeal until 19 March 2025, and it then took time to source and consider all relevant sentencing materials.[47]
[47] WAB 8 [4] - [6].
Given that the delay was short and has been adequately explained, the application for an extension of time should be granted.

Conclusion

For the above reasons, we would make the following orders:
1.The application for an extension of time within which to appeal is granted.
2.Leave to appeal is granted on ground 2.
3.Leave to appeal on grounds 1, 3 and 4 is refused.
4.The appeal is allowed.
5.In relation to indictment BUN 95 of 2024:
a.The sentencing judge's sentencing decision is set aside (other than the order for compensation, which is unaffected).
b.The appellant is resentenced to 2 years 6 months' immediate imprisonment in relation to count 1. No penalty is imposed in relation to count 2.
6.In relation to BU 1775 - 1776 of 2024, 5474 of 2024, and 5905 - 5906 of 2023:
a.The sentencing magistrate's sentencing decision is set aside.
b.No penalty is imposed in relation to BU 5906 of 2023.
c.The appellant is resentenced to:
i.BU 5905 of 2023: 6 months' immediate imprisonment;
ii.BU 1775 of 2024: 3 months' immediate imprisonment;
iii.BU 1776 of 2024: 3 months' immediate imprisonment;
iv.BU 5474 of 2024: 6 months' immediate imprisonment.

d.The sentence imposed on BU 5905 of 2023 is to be served cumulatively on the sentence imposed in relation to count 1 on indictment BUN 95 of 2024. Each other sentence is to be served concurrently with the sentence imposed on BU 5905 of 2023 and the sentence imposed in relation to count 1 on indictment BUN 95 of 2024.

7.The total effective sentence of 3 years' imprisonment is backdated to commence on 21 March 2024.
8.The appellant is eligible for parole.

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