MYB v The State of Western Australia - [2024] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MYB -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 53
CORAM:   MAZZA JA
MITCHELL JA
VANDONGEN JA

HEARD:   15 DECEMBER 2023
DELIVERED          :   13 MAY 2024
FILE NO/S:   CACR 33 of 2023
BETWEEN:   MYB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   ALB 13 of 2022

Catchwords:

Criminal law - Appeal against sentence - Family and domestic violence - Appellant convicted on pleas of guilty of aggravated strangulation (contrary to s 298 Criminal Code (WA)) and doing an act, with intent to harm, as a result of which bodily harm was caused to victim (contrary to s 304(2) Criminal Code) - Where appellant and victim were de facto partners - Where their infant child witnessed the offending - Where appellant sentenced to a total effective sentence of 5 years' imprisonment - Whether sentence for s 304(2) offence is manifestly excessive - Where offending involved two incidents of strangulation on the same date - Where appellant previously served 14 months' imprisonment for unrelated drug offences - Whether sentencing judge ought to have reduced total effective sentence for totality in light of earlier sentence

Legislation:

Criminal Code (WA), s 298, s 304
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Jackson
Respondent	:	B Murray

Solicitors:

Appellant	:	James Jackson Criminal Defence
Respondent	:	Director of Public Prosecutions (WA)

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

Ackland v Police [2019] NZHC 312
Aung v The State of Western Australia [2022] WASCA 175
Blurton v The State of Western Australia [2014] WASCA 61
Bropho v Hall [2015] WASC 50
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Chikonga v The State of Western Australia [2017] WASCA 34
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Drage v The State of Western Australia [2021] WASCA 6
Duncan v The State of Western Australia [2018] WASCA 154
Forrest v The State of Western Australia [2019] WASCA 172
Gillespie v The State of Western Australia [2016] WASCA 216
Gomboc v The State of Western Australia [2023] WASCA 115
GUE v The State of Western Australia [2022] WASCA 121
Hardwick v The State of Tasmania [2020] TASCCA 2; (2020) 32 Tas R 62
Hewins v The State of Western Australia [2023] WASCA 2
HSH v The State of Western Australia [2023] WASCA 113
Kaokula v The State of Western Australia [2016] WASCA 198
Lawrence v The State of Western Australia [2015] WASCA 187
McAllister v The State of Western Australia [2017] WASCA 183
Merritt v The State of Western Australia [2019] WASCA 203
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
OAI v The State of Western Australia [2022] WASCA 110
Pedrochi v Brown [2021] WASC 81
Quirk v The State of Western Australia [2019] WASCA 76
R v HBZ [2020] QCA 73; (2020) 4 QR 171
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v MCW (2018) QCA 241; [2019] 2 Qd R 344
R v MDB [2018] QCA 283
Ridgway v The State of Western Australia [2021] WASCA 143
Roffey v The State of Western Australia [2007] WASCA 246
Rolfe v The State of Western Australia [2012] WASCA 169
Shramka v The Queen [2022] NZCA 299; [2022] 3 NZLR 348
Sophiadakis v The State of Western Australia [2016] WASCA 203
T v Police [2019] NZHC 3375
The State of Western Australia v Chungarai [2021] WASCA 147
The State of Western Australia v Darroch [2018] WASCA 114
The State of Western Australia v Doodson [2021] WASCA 148
The State of Western Australia v Krakouer [2022] WASCA 118
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Riley [2024] WASCA 11
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
Ugle v The State of Western Australia [2018] WASCA 16
Vlek v The Queen (Unreported, WASCA, Library No 990153C, 29 March 1999)
Woods v The Queen (1994) 14 WAR 341

JUDGMENT OF THE COURT:

This is an appeal against sentences imposed by Lonsdale DCJ on 13 March 2023.
The appellant was charged on indictment in the District Court with two offences, both of which occurred on 16 September 2021 at a regional location in Western Australia. The victim of both counts of offending was the appellant's de facto partner, a woman we will refer to as 'V'. The appellant and V were living in a family relationship and had one daughter together, who was 9 months old at the time of the offending.
Count 1 alleged that the appellant impeded the victim's normal breathing by manually applying pressure on, or to, her neck in circumstances of aggravation; namely that a child was present and that the appellant was in a family relationship with V, contrary to s 298(b) of the Criminal Code (WA) (Code). This offence is commonly referred to as 'strangulation'. It carries a maximum penalty of 7 years' imprisonment when committed in circumstances of aggravation, or 5 years' imprisonment in any other case.
Count 2 alleged that the appellant, with intent to harm V, did an act as a result of which bodily harm was caused to her, contrary to s 304(2)(a) of the Code. This offence carries a maximum penalty of 20 years' imprisonment. The expression 'intent to harm' is defined in s 304(3). The precise nature of the appellant's intent to harm, for the purposes of count 2, was not particularised by the State. However, it appears that the relevant intention was either to unlawfully cause bodily harm to V or to unlawfully endanger V's life, health or safety.[1]
[1] See s 304(3)(a) and s 304(3)(b) of the Code.
On 31 October 2022, the appellant pleaded guilty to counts 1 and 2. On 13 March 2023, her Honour sentenced the appellant to 2 years 6 months' imprisonment on count 1 and 5 years' imprisonment on count 2. Her Honour ordered that the sentences be served concurrently, resulting in a total effective sentence of 5 years' imprisonment. Her Honour backdated the sentence to commence on 25 September 2022 and ordered that the appellant be made eligible for parole.
The commencement date of the sentences reflect the fact that, on 2 February 2022, the appellant was sentenced in the District Court by Flynn DCJ for three other offences to a total effective sentence of 14 months' immediate imprisonment, backdated to commence on 24 July 2021. Those offences were one count of possession of methylamphetamine (6.27 g) with intent to sell or supply to another; one count of selling methylamphetamine (1.75 g) to another; and one count of possession of property reasonably suspected to have been unlawfully obtained, namely $1,900 in cash. Although the appellant was made eligible for parole, he served the entire 14‑month sentence in custody, and completed the sentence on 24 September 2022. The facts of that offending are set out in [91] below.
The appellant relied on two grounds of appeal in respect of the sentences imposed by Lonsdale DCJ. Ground 1 alleged that the sentence of 5 years' imprisonment on count 2 was manifestly excessive. Ground 2 alleged that the sentence on count 2 infringed the totality principle by failing to take into account the fact that the appellant had just completed the 14‑month term of imprisonment imposed by Flynn DCJ, and was then required to serve the whole 5‑year sentence for count 2. The question of leave to appeal on each ground was referred to the hearing of the appeal.
For the reasons that follow, neither ground of appeal has been made out. We would refuse leave to appeal on each ground and dismiss the appeal.

The facts

There was no dispute at the sentencing hearing, nor at the hearing before this court, as to the facts of the appellant's offending. What follows is drawn principally from Lonsdale DCJ's sentencing remarks, in which her Honour adopted the facts as read out by the prosecutor.[2]
[2] ts 76 ‑ 78.
At the time of the offending, the appellant and V had been living in a de facto relationship for about three years. They had a child together, who was, as already stated, 9 months old. V also had two children from a previous relationship, although they did not live with the appellant and V. Prior to the offending conduct the subject of this appeal, the Western Australian police had recorded seven incidents of domestic violence perpetrated by the appellant against V. Additionally, Queensland police had recorded one prior incident by the appellant against V.[3] However, no charges had previously been laid against the appellant.
[3] ts 37.
At about 7.00 pm on 16 September 2021, the appellant, V, and their infant child were at home together. The appellant had been drinking alcohol throughout the day and was intoxicated. During a conversation, he became agitated about the prospect of V travelling to see her two children from a previous relationship. V became fearful of the appellant's mood and ran from the house, out onto the street. The appellant chased her and an argument ensued. A passing motorist, who was concerned for V's welfare, spoke to the appellant about his behaviour and then called the police. V ran back into the house and tried to lock herself and their child inside, but the appellant managed to enter through an unlocked window.
Once he was back inside, the appellant grabbed V and threw her to the floor. He put his arm around her neck so that she was in a headlock and then squeezed her neck to the point where she could barely breathe. This was the act of strangulation the subject of count 1.
The appellant then dragged V over to the living room, where he threw her onto the couch. He placed his hand over her mouth and nose while he shouted at her, calling her several derogatory names. With a clenched fist, the appellant punched V several times in the face. The blows caused immediate and significant bruising and swelling to V's right eye. The appellant also threatened her, by saying:
Now I'm going to have to kill you 'cause the dogs will see that when they come[.]
The appellant's reference to 'the dogs' was evidently a reference to the police, who would see V's swollen eye upon their arrival at the house.
The appellant then took hold of V and dragged her into a walk‑in wardrobe connected to the main bedroom. He picked up a roll of tape and told V that he was going to tie her up with it. The appellant then subjected V to what her Honour described in the sentencing remarks as 'a violent and sustained assault' in which he slammed V's head into the wall. He grabbed V's legs, picked her up, and slammed her into the ground, using his body weight to increase the impact of the fall. The appellant punched V numerous times to the face and, again, placed her in a headlock. During the assault on V in the walk‑in wardrobe, their infant child was present in the adjoining bedroom. In self‑defence, V bit the appellant. She then fled into the main bedroom. The appellant pursued her. Once inside the bedroom, and in front of their child, he pushed V into the corner between the head of the bed and the wall, and then stood over her. The appellant squeezed V's neck with both of his hands until she could not breathe. As he did so, the appellant mocked V by saying:
Are you ready to die?
And:
Have you pissed yourself yet?
After the appellant released his grip on V's neck, he picked up their child and handed her to V. While V tried to comfort her, the appellant headbutted V in the face, and then bit her left ear. He also threatened to tie her up and smash her mobile telephone in order to give himself a head start in escaping from the police.
The events described in [13] ‑ [16] above are the subject of count 2. The relevant acts for the purpose of s 304(2) were the appellant's punches and the act of strangling V, for the second time that evening, in the bedroom.[4]
[4] Appeal ts 3 ‑ 4.

Events immediately after the commission of the offences

Prior to the arrival of the police, the appellant told V to stay in the shower with their child, away from the police. He also instructed V to lie to the officers about what had occurred. It was clear from body‑worn camera footage recorded by the attending police officers that the appellant was agitated when they arrived. Both the appellant and V were obviously injured. According to the prosecutor during the sentencing proceedings, the appellant misled the police by falsely telling them that V's injuries were a result of engaging in 'crazy monkey sex'.[5] However, in her Honour's sentencing remarks, the sentencing judge found that the appellant's remark about 'crazy monkey sex' was made to police by way of explanation for his own injuries.[6] Nothing turns on this discrepancy. The appellant also engaged in behaviour that the sentencing judge described as being 'very manipulative'[7] by trying to communicate with V even after the police took steps to separate him from her. The sentencing judge observed that the appellant's attempts to negotiate with the police officers so that he could speak to V, rather than submitting to being arrested, indicated that he had difficulty accepting the situation.
[5] ts 39.
[6] ts 78
[7] ts 79.
After the appellant's arrest, he was taken to the local hospital for treatment. He sustained cuts, bruises, and other minor injuries, but he was declared medically fit to remain in custody. Upon being interviewed by police, he denied assaulting V and said, in essence, that the injuries she sustained were self‑inflicted as a result of her mental health issues.
V was also taken to the hospital for treatment, where her multiple injuries were photographed. In addition to suffering a black eye, her right eye was so swollen that she could not open it. She also suffered an associated subconjunctival haematoma to her right eye and a large corneal abrasion. Her other facial injuries included a swollen and bruised left ear with a large haematoma, abrasions to the front of her neck and multiple small bruises to her chin, which appeared consistent with finger marks from being strangled. She had a large bruise on her right upper arm. The photographs taken of V also revealed other marks and bruising on her body. There is no question that her injuries constituted bodily harm, as that expression is defined in s 1(1) of the Code.

Sentencing and events associated with those proceedings

The appellant entered his pleas of guilty, following negotiations with the State, after the charges were committed for trial to the District Court and a trial listing hearing had taken place. The sentencing judge found that the appellant did not plead guilty to the charges at the earliest reasonable opportunity.[8]
[8] ts 78.
On the appellant's instructions, defence counsel made submissions, apparently in mitigation, in which he effectively sought to deflect blame for the appellant's offending against V. For example, it was submitted that V had perpetrated violence towards the appellant on previous occasions, and that she had, from time to time, called the police and attempted to have him arrested without justification 'as a means of winning arguments'.[9] Defence counsel also asserted that, at the time of the commission of the offences, the appellant had 'completely lost his cool as a result of the years of abuse he had suffered from the victim'.[10] Defence counsel described the appellant's attack on V as 'a mutual fight involving significant violence by both parties towards one another'.[11] In oral submissions, defence counsel also asserted that the injuries sustained by the appellant 'reflect a vicious attack by the victim towards [the appellant]'.[12]
[9] Defence outline of sentencing submissions, par 9.
[10] Defence outline of sentencing submissions, par 26.
[11] Defence outline of sentencing submissions, par 29.
[12] ts 49.
The sentencing judge informed defence counsel that she was not prepared to accept the appellant's version of events, including the appellant's conflicting explanation as to what caused the argument, and his account of the extent to which V fought back, in the absence of sworn evidence from the appellant. Defence counsel advised the court that the appellant did not wish to have a trial of the issues.[13] Accordingly, no trial of issues occurred.
[13] ts 49 ‑ 51, 72.
Defence counsel told the sentencing judge that the appellant accepted the offences were serious and that V was frightened, injured and traumatised as a result of the sustained assault upon her. However, having regard to his own injuries incurred during the 'mutual fight', the offending fell into 'a less serious category than an offence involving an [sic] one‑sided assault by one party on a defenceless person'.[14] At the sentencing hearing, defence counsel also made oral submissions which, in effect, suggested the appellant's offending conduct was an act of self‑defence against a 'vicious attack' by V.[15]
[14] Defence outline of sentencing submissions, pars 46 - 47.
[15] ts 49 - 50.
The written sentencing submissions filed on behalf of the appellant acknowledged that there were few mitigating factors, although it was asserted that the pleas of guilty and the 'numerous injuries' he suffered were 'significant matters in mitigation'.[16]
[16] Defence outline of sentencing submissions, par 50.
Defence counsel then referred to the 14‑month term of immediate imprisonment served by the appellant in respect of the offences dealt with by Flynn DCJ, described in [6] above. Defence counsel submitted that the appellant's service of that sentence was relevant to the application of the totality principle in the case.[17]
[17] Defence outline of sentencing submissions, par 49.
There was one further matter of note discussed at the sentencing hearing. After entering his guilty pleas, but before he was sentenced by Lonsdale DCJ, the appellant spoke to V on a number of occasions by telephone from prison. The conversations were lawfully recorded. Transcripts of the conversations were provided to defence counsel and to her Honour. It is unnecessary to refer to the content of those conversations in detail. It is sufficient to note that, at times, the appellant became verbally abusive towards V and made statements in which he continued to blame V for his offending conduct the subject of this appeal. It is material inconsistent with any notion of true remorse.

The victim impact statement

The sentencing judge was provided with a victim impact statement written by V. It is clear from the victim impact statement that, as a result of the offences committed by the appellant, V's life has changed for the worse. She stated that she remains frightened of the appellant and fears his release from custody. As she put it:
No matter where I am I will be looking over my shoulder even when I am in the shower.
V stated that she has been left 'half the woman [she] was mentally and financially'. Ultimately, she concluded that the appellant's actions have taken away the confidence and independence of herself and that of her children.

The appellant's personal circumstances

The appellant was born in New South Wales. He was 41 years old at the time of the offending, and was 43 years old when sentenced.
The appellant left high school after year 9, which he completed in Queensland. In 2012, he moved to Western Australia. He is a carpenter by trade. Upon moving to Western Australia, the appellant established a car restoration business, which exposed him to various individuals with criminal backgrounds, including drug dealers and bikies. It was during that time that the appellant was first introduced to illicit drugs. Her Honour described the appellant's illicit drug use as 'the major factor' in his offending conduct.[18]
[18] ts 80.
The appellant has, in the past, attempted to rehabilitate himself from illicit drug use but has been unsuccessful in doing so. The sentencing judge found that he has significant treatment needs in this area.[19]
[19] ts 80 - 81.

In January 2021, the appellant was injured in a workplace accident, in which a concrete boom pump fell onto his head. He spent eight days in hospital, and was put in a neck brace. The appellant struggled to walk properly and suffered from chronic pain thereafter.[20]
[20] ts 46.
The appellant has a significant prior criminal record in New South Wales, Queensland and Western Australia. In New South Wales, in 2011, he was convicted of assault occasioning bodily harm against his then domestic partner. In Queensland, he was convicted of various offences of using obscene language in a public place, unlawful possession of weapons, assault occasioning bodily harm, and assault or obstruction of a police officer. In Western Australia, he has convictions for driving whilst his licence was suspended, driving whilst under the influence of illicit drugs, possession of stolen or unlawfully obtained property, stealing offences, aggravated burglary, drug offences (including the offences referred to in [6] above) and breaching various orders, including community‑based orders and bail undertakings.
While in prison for the offences dealt with by Flynn DCJ, the appellant completed various courses relating to verbal communication skills, health and wellbeing, and workplace health and safety.
At the time of the sentencing proceedings before Lonsdale DCJ, the appellant had reportedly commenced a new relationship with a person who was described by defence counsel as 'prosocial', and who reportedly does not tolerate illicit drug use. Defence counsel submitted the appellant intended to live with his new partner upon his release from prison.[21] Whether such living arrangements would actually be feasible was not elaborated upon.
[21] ts 52, 81

The sentencing remarks

Her Honour's sentencing remarks included the following.
As outlined above, the appellant was initially charged with one count of strangulation and one count of offending contrary to another section of the Code, which also carried a maximum penalty of 20 years' imprisonment. He entered pleas of not guilty in respect of both offences. However, following negotiations with the State, the appellant ultimately agreed to plead guilty to both the strangulation offence and a lesser charge, namely the count of offending contrary to s 304(2) of the Code.
Her Honour found that the appellant did not plead guilty at the earliest opportunity, but considered that he should nonetheless receive a significant discount for his guilty pleas. Pursuant to s 9AA of the Sentencing Act 1995 (WA), her Honour gave a discount of 15%.[22]
[22] ts 82.
Her Honour acknowledged the appellant's claims that he was remorseful and that he accepted responsibility for his conduct, as set out in the appellant's 'letter of apology'. Her Honour said she was prepared to accept that there was 'a level of remorse' but she did not consider the appellant to have fully accepted responsibility for his conduct, nor did her Honour consider the appellant to have any insight into what he had done.[23] In support of these findings, her Honour noted the content of the telephone conversations between the appellant and V, which had been initiated by the appellant from prison, as described at [27] above. As to those conversations, her Honour said:[24]
The calls show a complete absence of remorse, it shows that you continue to blame the victim and that you have no insight or acceptance of responsibility.
[23] ts 78.
[24] ts 78.
Her Honour rejected the submissions made by defence counsel to the effect that the appellant had acted in self‑defence and that V was the aggressor.[25] The mere fact that the appellant had also suffered injuries following the incident was not sufficient to persuade her Honour that V was even partly responsible for the assault. Her Honour also noted the appellant's claims, that he did not want to have any further contact with V, and that she was the one who wanted to maintain contact with him, were inconsistent with what he had repeatedly said in his telephone conversations with V from prison.[26] Her Honour also rejected the submission, put by defence counsel, that the relationship between the appellant and V was a 'toxic relationship' of 'mutual drug use and mutual abuse'.[27]
[25] ts 78.
[26] ts 79.
[27] ts 80.
As already stated, the sentencing judge characterised the offending as 'very serious'. She elaborated on this characterisation by pointing to these aggravating factors:[28]
(a)The appellant was on bail for other offences at the time of the commission of the offences.
(b)The offending was prolonged and appeared to be motivated by a desire to exercise a degree of control over V.
(c)The offending occurred in the presence of a child.
(d)The appellant deliberately targeted vulnerable parts of V's body, including her head and neck, in the course of assaulting her.
(e)The appellant was physically bigger and stronger than V. Her Honour noted that the appellant was tall and had a 'significant' build in contrast to V, who was described as having a 'fairly slight, [or] slight build'.
(f)The appellant's conduct was dangerous and V could have suffered greater physical injury or, potentially, even death.[29]
(g)Even after the police arrived at the scene, the appellant's behaviour remained aggressive, defiant and controlling.
(h)Based on the victim impact statement, the offending conduct had 'a very profound effect' on V, causing her to experience feelings of fear, regret, guilt and shame.[30] Her Honour noted that, based on the body‑worn camera footage taken by the police officers who attended the scene of the offending, it was obvious that V had been violently assaulted and that she was 'absolutely terrified' of the appellant.[31]
[28] ts 79.
[29] ts 79.
[30] ts 80.
[31] ts 80.
Her Honour also referred to the appellant's criminal history, which spanned across the states of New South Wales, Queensland and Western Australia. Her Honour concluded that the appellant was not a person of prior good character.[32]
[32] ts 81.
Her Honour gave the appellant credit for the fact that he had taken steps towards his rehabilitation by undertaking various rehabilitative courses while in prison, but her Honour noted that he had not engaged in any intensive drug treatment programs.[33]
[33] ts 81.
Her Honour stated that the main sentencing consideration was general deterrence. She acknowledged that personal deterrence was also relevant due to the appellant's past history of violence. Her Honour observed that the protection of the community and, in particular, the protection of the appellant's intimate partners 'loom[ed] large'[34] in the sentencing process. Her Honour also stated that there was a need to punish the appellant for his conduct, and a need to protect vulnerable women.[35]
[34] ts 82.
[35] ts 82.
After imposing the individual sentences for counts 1 and 2, her Honour ordered that the sentences be served concurrently because they arose out of 'the one episode of offending'.[36]
[36] ts 82.
Her Honour did not refer to the totality principle and, in particular, did not refer to the effect that the earlier sentences imposed by Flynn DCJ may have had on the sentences that her Honour now imposed. However, in deciding when the sentences she imposed should commence, her Honour did note that the appellant had been sentenced for other, unrelated offences on 2 February 2022.[37] This acknowledgement was undoubtedly a reference to the sentences imposed by Flynn DCJ.
[37] ts 82.

Ground 1 - was the sentence of 5 years' imprisonment imposed on count 2 manifestly excessive?

The parties' submissions

Counsel for the appellant submitted that, although the appellant's offending was undoubtedly serious, it did not involve some of the more serious features found in other cases. In particular, counsel pointed to the absence of the following features as indicative of this case not belonging at the higher end of the scale of seriousness:[38]
(a)the use of a weapon;
(b)multiple offenders attacking the one victim;
(c)premeditation;
(d)the infliction of substantially more serious injuries, injuries causing the victim to suffer from ongoing or permanent residual effects, or injuries requiring significant medical treatment;
(e)kicks and stomps to the head, which, in some cases, could result in the victim being rendered unconscious; and
(f)conviction after trial, and a complete absence of remorse.
[38] Appellant's case, par 26.
The appellant submitted that the sentence imposed on count 2 was inconsistent with the outcomes in other cases involving offences contrary to s 304(2) of the Code, all of which involved more serious offending than in the present case.[39] Those cases were: The State of Western Australia v Wallam;[40] Blurton v The State of Western Australia;[41] De Alwis v The State of Western Australia;[42] Lawrence v The State of Western Australia;[43] Sophiadakis v The State of Western Australia;[44] McAllister v The State of Western Australia;[45] Ugle v The State of Western Australia;[46] Forrest v The State of Western Australia;[47] Ridgway v The State of Western Australia;[48] and Hewins v The State of Western Australia.[49] In addition to those cases, the appellant also cited the outcome in Rolfe v The State of Western Australia,[50] which concerned an offence of grievous bodily harm committed with intent to main, disfigure, disable or do grievous bodily harm, contrary to s 294 of the Code.
[39] Appellant's case, par 41.
[40] The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116.
[41] Blurton v The State of Western Australia [2014] WASCA 61.
[42] De Alwis v The State of Western Australia [No 2] [2015] WASCA 42.
[43] Lawrence v The State of Western Australia [2015] WASCA 187.
[44] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[45] McAllister v The State of Western Australia [2017] WASCA 183.
[46] Ugle v The State of Western Australia [2018] WASCA 16.
[47] Forrest v The State of Western Australia [2019] WASCA 172.
[48] Ridgway v The State of Western Australia [2021] WASCA 143.
[49] Hewins v The State of Western Australia [2023] WASCA 2.
[50] Rolfe v The State of Western Australia [2012] WASCA 169.
The respondent contended that the appellant's submissions as to the seriousness of the offending in count 2 substantially downplayed the seriousness of the appellant's criminal conduct. In particular, the appellant's submissions failed to recognise the fact that the offence was committed against the appellant's de facto partner, in the presence of a child, and that the offence on count 2 included an act of strangulation in addition to the act of strangulation the subject of count 1. It was argued by the respondent that the appellant's submissions focused too much on the physical injuries actually suffered by V, and did not pay sufficient regard to the psychological effects of the offending on V.
As for the comparable cases cited by the appellant, the respondent submitted that they failed to demonstrate that the sentence of 5 years' imprisonment was manifestly excessive.
The respondent also submitted that, apart from the discount for the pleas of guilty, there was very little mitigation that could be afforded to the appellant. Contrary to the submission of counsel for the appellant, the appellant was not remorseful for his offending. While the appellant had engaged in rehabilitative courses, he had apparently not engaged in any rehabilitation to deal with his illicit drug use which, as her Honour recognised, was 'the major factor' in his offending. It was contended that the appellant had not taken responsibility for his offending and held no insight into the impact that it had on V. Bearing in mind the sentencing objectives of proper punishment, general and personal deterrence, and protection of the public, the sentence that was imposed on count 2 was not manifestly excessive.

Ground 1 - disposition

The principles to be applied in the context of a ground of appeal which alleges that an individual sentence is manifestly excessive are well established and need not be repeated in detail. The issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently. Rather, the critical question is whether the sentence is unreasonable or plainly unjust, having regard to all relevant circumstances. In determining whether an individual sentence is manifestly excessive, the court is required to examine it in light of the prescribed maximum penalty, the standards of sentencing customarily observed in relation to the relevant offence, the place that the offending occupies on the scale of seriousness of offences of the type in question, and the offender's personal circumstances.
Section 304(2) and s 304(3) of the Code are in these terms:
(2)If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a)bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
(3)For the purposes of subsection (2) an intent to harm is an intent to -
(a)unlawfully cause bodily harm to any person; or
(b)unlawfully endanger the life, health or safety of, any person; or
(c)induce any person to deliver property to another person; or
(d)gain a benefit, pecuniary or otherwise, for any person; or
(e)cause a detriment, pecuniary or otherwise, to any person; or
(f)prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
(g)compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.
As we have already stated, and as may be seen from s 304(2), the maximum penalty for an offence contrary to that subsection is 20 years' imprisonment.
In Quirk v The State of Western Australia,[51] Buss P, Mitchell and Pritchard JJA made the following comments in relation to s 304(2):
[T]he offence created by s 304(2) does not require that bodily harm is actually caused to any person. It is sufficient that the life, health or safety of any person is, or is likely to be, endangered, by the act of the offender.[52] The factors relevant to sentencing for an offence under s 304(2) of the Criminal Code thus include the nature and seriousness of the offender's intent to harm; the nature and seriousness of the bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety; and the potential (as distinct from the actual) consequences of the offender's conduct.[53] Moreover, the structure of s 304(2) reveals that the potential risk to life, health or safety may be equally as important as the actual harm caused by the person's act done with the intent to harm. If injury does occur, that may aggravate the offending. Where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant factor in the determination of the appropriate sentence.[54] However, the absence of any injury does not detract from the seriousness of the offending by virtue of the risk to the life, safety or health of any person.
[51] Quirk v The State of Western Australia [2019] WASCA 76 [55].
[52] Section 304(2)(b) of the Code.
[53] Kaokula v The State of Western Australia [2016] WASCA 198 [63].
[54] Kaokula [62]; The State of Western Australia v Darroch [2018] WASCA 114 [34].
In The State of Western Australia v Darroch,[55] the court (Mazza & Beech JJA, & Allanson J) noted:
It is true, as the respondent emphasises [respondent's submissions [29]], that the structure of s 304(2) reveals that potential harm may be as significant as actual harm, and cases cannot be approached with a singular focus on the presence and extent of physical injuries.[56] However, where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant factor in the determination of the appropriate sentence. In this case, the catastrophic and permanent injuries suffered by the victim were a seriously aggravating feature of the appellant's offence.
[55] Darroch [34].
[56] Kaokula [62]; Chikonga v The State of Western Australia [2017] WASCA 34 [27] ‑ [28].
It is well established that there is no sentencing tariff for an offence against s 304(2) because such an offence may be committed in a wide range of circumstances. There is no hierarchy of seriousness in respect of offences against s 304(2). The seriousness of each case depends upon its own facts and circumstances.[57]
[57] Forrest [45].
Amongst the factors that are relevant to the evaluation of the objective seriousness of an offence against s 304(2)(a) are: the nature and seriousness of the appellant's 'intent to harm'; the nature and seriousness of the appellant's 'act'; the nature and seriousness of the actual 'bodily harm' which the appellant's 'act' caused to the victim; and the inherent potential of the appellant's 'act' to have caused the victim more serious 'bodily harm'.[58]
[58] Forrest [46].
Another factor relevant to the evaluation of the objective seriousness of an offence against s 304(2)(a) is that the victim, in this case, V, was the offender's de facto partner.
General deterrence is an important sentencing consideration for offences committed in the context of domestic violence. There has been, in recent years, a 'firming up' of sentences for offences committed in such circumstances.[59]
[59] The State of Western Australia v Riley [2024] WASCA 11 [67]; The State of Western Australia v Chungarai [2021] WASCA 147 [57]; Drage v The State of Western Australia [2021] WASCA 6 [42]; Pedrochi v Brown [2021] WASC 81 [63]; Duncan v The State of Western Australia [2018] WASCA 154 [46].
In Duncan v The State of Western Australia,[60] this court observed:
There is no doubt that the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them, means that general deterrence is an important sentencing consideration in offences of this kind. In Bropho v Hall,[61] Mitchell J (as his Honour was then) discussed the impact of the aggravating factor of an assault committed in the context of a domestic relationship. His Honour rightly said:[62]
'An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner.'
[60] Duncan [40].
[61] Bropho v Hall [2015] WASC 50.
[62] Bropho [16], referred to with approval in Gillespie v The State of Western Australia [2016] WASCA 216 [48].
In R v Kilic,[63] the High Court observed that current sentencing practices for offences involving domestic violence have changed over time, in line with changes in societal attitudes towards domestic relations. The short and long‑term psychological and physical harm caused by acts of domestic violence to victims, and to children who are present when such behaviour occurs, is much better appreciated now than it once was.[64] So, too, is the potential for the violence to escalate, with lethal consequences.
[63] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [21].
[64] As to the adverse effects of exposing children, even very young children, to domestic violence: Australian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (2023), ch 3.1.8; Department of Justice (WA), Equal Justice Bench Book (2nd ed, 2021) 816 ‑ 825; Mueller I and Tronick E, 'Early Life Exposure to Violence: Developmental Consequences on Brain and Behaviour' (2019) 13 Frontiers in Behavioural Neuroscience 1, 3.

Strangulation, which is commonly reported by women who have experienced domestic violence, can be distinguished from other forms of family and domestic violence on the basis that it often leaves very few marks or signs; even in cases where the strangulation was life‑threatening.[65] The fact that this type of offending is more likely to go undetected makes strangulation a particularly dangerous form of domestic violence, and recent studies have consistently shown that it is both a predictive risk factor for future severe domestic violence and a relatively common cause of domestic violence‑related homicide.[66]
[65] Douglas H and Fitzgerald R, 'Strangulation, Domestic Violence and the Legal Response' (2014) 36(2) Sydney Law Review 231, 235; see also Ackland v Police [2019] NZHC 312 [18] ‑ [19], citing Law Commission of New Zealand, Strangulation: The Case for a New Offence, Report 138 (2016) [1.3] ‑ [1.4].
[66] Even where the pressure placed on the victim's neck is released before the point of unconsciousness, the sustained lack of oxygen to the victim's brain may cause irreversible damage. The victim may also suffer other injuries not visible to the naked eye, such as vision and hearing changes, sore throat, paralysis, anxiety, post‑traumatic stress, dissociation, and suicidality: Douglas H, Sharman L and Fitzgerald R, 'Domestic Violence, Sex, and the 'Blurry' Question of Consent' (2024) 88(1) Journal of Criminal Law 1, 3 and the peer‑reviewed studies cited therein. See also T v Police [2019] NZHC 3375 [40].
In Pedrochi,[67] Quinlan CJ referred to the growing appreciation of the particular dangers associated with offences involving strangulation and its role in cases of intimate and family violence. The recognition of the particular dangers posed by non‑fatal strangulation in incidents of domestic violence has resulted in the introduction of the specific offence of strangulation,[68] with which this appellant was charged on count 1. However, as there was a second, separate instance of strangulation that comprised part of the series of acts committed with intent to harm V, contrary to s 304(2)(a) of the Code, a recognition of the seriousness and danger of non‑fatal strangulation was also a relevant sentencing consideration in respect of count 2, with which ground 1 of this appeal is concerned.
[67] Pedrochi [64].
[68] Due to the lack of physical injuries or visible bodily harm, perpetrators of strangulation have, in the past, commonly been charged with more minor offences such as common assault, which generally carry lower maximum penalties. The introduction of a separate strangulation offence in s 298 pursuant to s 6 of the Family Violence Legislation Reform Act 2020 (WA) was intended to recognise the less visible forms of harm described above, by ensuring the sentences imposed on perpetrators of strangulation reflect the actual seriousness of the offending.
In his Second Reading Speech in respect of the Bill that introduced s 298 of the Code,[69] the Attorney General referred to research which reveals that strangulation, when committed against an intimate partner, is one of the strongest indicators of an increased risk of homicide.[70] The Attorney General went on to describe strangulation as a 'perversely intimate and callous form of violence', which is often used by a perpetrator to convey to his victim that he has the power to take her life away. Observations to this effect have also been made by intermediate appellate courts in a number of other jurisdictions, including Queensland, Tasmania and New Zealand.[71] Those cases also recognise that the need for deterrent punishment arises, not just from the physical and psychological harm which frequently results from an act of strangulation, but also from its inherently dangerous nature and the strong likelihood that, if it is repeated, death or serious injury may eventually result.[72]
[69] Family Violence Legislation Reform Bill 2019 (WA), cl 6.
[70] Western Australia, Parliamentary Debates, Legislative Assembly, 27 November 2019, 9427 ‑ 9432 (The Honourable Mr J Quigley, Attorney General).
[71] R v MCW (2018) QCA 241; [2019] 2 Qd R 344 [3], [39]; R v MDB [2018] QCA 283 [45]; R v HBZ [2020] QCA 73; (2020) 4 QR 171 [56].
[72] See MCW [3], [39]; HBZ [72]; MDB [43] ‑ [45]; Hardwick v The State of Tasmania [2020] TASCCA 2; (2020) 32 Tas R 62 [50] ‑ [52]; Shramka v The Queen [2022] NZCA 299; [2022] 3 NZLR 348 [22] ‑ [23].
In our opinion, as contended by the respondent, the submissions made on behalf of the appellant attempted to substantially downplay the seriousness of the appellant's actions, which involved sustained and persistent violence inflicted against the appellant's de facto partner. As stated, that violence included an act of strangulation, in addition to the conduct the subject of count 1, all of which occurred in the presence of the appellant and V's child. The submissions also ignore the fact that the harm caused by strangulation may not always manifest as physical injury and has the potential to cause, as it did here, significant psychological trauma.
The appellant's submissions placed too much emphasis on the absence of very serious physical harm to V, and did not properly address the psychological effects of the offending on her; nor did the submissions adequately acknowledge the potential for the violence to have escalated with fatal consequences to V.
This takes us to the comparable cases. Contrary to the submissions of counsel for the appellant, the comparable cases do not assist in establishing that the sentence on count 2 was manifestly excessive.
Apart from De Alwis, none of the cases cited by the appellant involved violence against an intimate partner. In McAllister, Ugle, Ridgway, Hewins and Rolfe, leave to appeal was refused. Additionally, in Blurton, the relevant ground of appeal, which alleged that a sentence of 2 years 6 months' imprisonment in respect of an offence contrary to s 304(2) was manifestly excessive, was abandoned at the hearing of the appeal. Each of those cases therefore have little utility as comparators. In a number of recent cases, this court has approved the statement made by Quinlan CJ in Pedrochi, that:
Where a sentence is, in effect, not even arguably excessive, it can in no way provide a marker as to the upper limits of the proper exercise of discretion.[73]
[73] See Pedrochi [43], cited with approval in HSH v The State of Western Australia [2023] WASCA 113 [79]; Aung v The State of Western Australia [2022] WASCA 175 [45]; GUE v The State of Western Australia [2022] WASCA 121 [59]; The State of Western Australia v Krakouer [2022] WASCA 118 [41]; OAI v The State of Western Australia [2022] WASCA 110 [18].
The case of Sophiadakis is also of no assistance, given that the individual sentence imposed for an offence committed by the offender in that case, contrary to s 304(2) of the Code, was not challenged.[74]
[74] See Sophiadakis [12] - [14].
In Forrest, the offender pleaded guilty to an offence contrary to s 304(2) of the Code, which occurred in a prison and involved the premeditated use of boiling water to inflict significant injuries upon a fellow prisoner. This court found that a sentence of 5 years' imprisonment was not manifestly excessive.[75] There were mitigating factors in that case that were either absent or of less importance in the present case, including that the offender in Forrest received a 25% discount for her plea of guilty (compared with a 15% discount in the present case), she had cooperated with the police, had belatedly expressed some remorse and accepted responsibility for her offending, and had a violent and dysfunctional family background.[76] While it must be accepted that the injuries inflicted on the victim in Forrest were worse than the injuries the appellant inflicted on V in this case, the aggravating factors identified by Lonsdale DCJ placed the present case in a category of seriousness that is not materially different from the offending in Forrest.
[75] Forrest [54].
[76] Forrest [24] - [25], [51].
In De Alwis, the offender was convicted after trial of a single offence contrary to s 304(2) of the Code. He was sentenced to 4 years 9 months' imprisonment. The offender and the victim were married. The offender was suspicious, controlling, abusive and threatening towards his wife. After an incident in which the offender verbally abused the victim, he evicted her from their house and she moved into a unit. Following their separation, the offender made repeated attempts to contact her via text messaging, and by sending her gifts, and she obtained a violence restraining order.[77] In breach of that restraining order, the offender waited for the victim, in the car park near her unit, with a long‑handled shovel and a meat cleaver. He ran towards her and struck her on the top of the head with the shovel, causing a laceration that went through the skin and soft tissue, right to the bone. The victim lost consciousness. The offending was premeditated and the offender was without remorse. The only mitigating factor was that the appellant suffered a mental condition.[78]
[77] De Alwis [109] - [110].
[78] De Alwis [116], [139].
A ground of the appeal against sentence in De Alwis, which alleged that the sentence was manifestly excessive, was dismissed. In dismissing the appeal, this court remarked that the sentence was 'at the high end of the sound sentencing range'.[79]
[79] De Alwis [139].
Returning to the present case, counsel for the appellant submitted that the sentence imposed on count 2 was inconsistent with the outcome in De Alwis. It was contended that the offence committed in that case was more serious than in the present case, having regard to the factual circumstances in that case, namely that the offending occurred in breach of a violence restraining order; involved premeditation and the use of a weapon; resulted in the victim receiving more serious injuries; and that the offender was convicted after trial.
Minds might differ as to whether the circumstances of De Alwis were more serious than the circumstances of the present case. In the present case, the offending was more prolonged; involved an act of strangulation; was in the presence of a young child; was committed while the appellant was on bail; and resulted in a very significant and adverse psychological impact on the victim. However, even if one were to conclude that the facts and circumstances in De Alwis were more serious than those in the present case, it is well established that the outcome of a single case does not establish the upper or lower limits of a customary range.
The appellant's personal circumstances provide little, if any, mitigation. The appellant does not have the advantage of youth and he is not a person of prior good character. Although his criminal record does not aggravate his offending, it does underscore the need for personal deterrence. This is particularly so given that the appellant has an earlier conviction for a violent offence, which was also perpetrated against a domestic partner. Such a pattern of behaviour reinforces the need for a sentence which protects others, particularly his domestic partners.[80]
[80] This court has recently observed that, in cases of family or domestic violence, it is important that proper regard is had to the patterns of behaviour often revealed by the offending, which may include control, manipulation and gaslighting: Gomboc v The State of Western Australia [2023] WASCA 115 [191].
The appellant has undertaken various rehabilitative courses while in prison, but he does not appear to have engaged in any recent rehabilitation to address his illicit drug use, which was, on her Honour's view, a key factor in his offending in the present case. However, this court has previously recognised that to attribute all, or most, of an offender's responsibility for his offending to his substance abuse may have the effect of externalising that responsibility, and runs the risk of avoiding the need for the offender to examine his underlying character traits and attitudes towards domestic partners, for the purposes of rehabilitation.[81] In any event, there was no evidence before her Honour to indicate that the appellant had begun to address his disturbing attitudes towards domestic partners, nor to address his use of verbal and physical abuse to control them. The sentencing judge did not conclude that the appellant was rehabilitated nor well on the path towards rehabilitation, and the record in the court below does not indicate that such a finding was open.
[81] See Gomboc [177], citing The State of Western Australia v Rayapen [2023] WASCA 55 [162].
As for remorse, the sentencing judge stated that she was prepared to accept there was a level of remorse, but this finding was heavily qualified by other findings made by her Honour, including that the appellant did not fully accept responsibility for his conduct and lacked insight into it.[82] It is difficult to see how any weight could have been given to the appellant's professed remorse in light of the statements he made to V during their telephone conversations while the sentencing proceedings before Lonsdale DCJ were pending. Moreover, the submissions made by defence counsel, on the appellant's instructions, in which he sought to blame V for the offending and portrayed her as the aggressor, evince no genuine sense of remorse whatever and undermine any claim of rehabilitation.
[82] ts 78 - 79.
In the end, the only mitigating factor of any real significance was the appellant's plea of guilty. Although it was not entered at the first reasonably opportunity, the guilty plea spared V the additional trauma of giving evidence at a trial. Her Honour's 15% reduction pursuant to s 9AA of the Sentencing Act was not challenged in this appeal and was, in all of the circumstances, appropriate.
Having regard to all of the relevant facts and circumstances, including the aggravating factors identified by the sentencing judge, and having regard to the sentencing objectives of proper punishment, personal and general deterrence, and the protection of the public, the sentence of 5 years' imprisonment imposed on count 2 was well within a proper exercise of her Honour's sentencing discretion. The submissions fall far short of demonstrating that the sentence on count 2 was unreasonable or plainly unjust. It was not manifestly excessive. We would refuse leave to appeal in respect of ground 1.

Ground 2 - was there an infringement of the totality principle?

The parties' submissions

Counsel for the appellant submitted that the totality principle may apply where an offender has already served a term of imprisonment for a prior offence, or offences, close in time to the offences under consideration.
It was argued, in effect, that the proper application of the totality principle in the present case required Lonsdale DCJ, in sentencing the appellant on count 2, to reduce the total effective sentence that her Honour would have imposed, having regard to the sentence that was already imposed upon the appellant on 2 February 2022 by Flynn DCJ. In that regard, it was contended that the effect of the sentence on count 2 was to impose a cumulative term of 5 years' imprisonment onto the 14‑month term imposed by Flynn DCJ, which the appellant had served in full by 24 September 2022, that is, before he was sentenced by Lonsdale DCJ.[83]
[83] Appellant's case, par 53.
The appellant's counsel also argued that by reason of the full service of the sentence imposed by Flynn DCJ, the need for personal deterrence, denunciation and punishment of the appellant was reduced.[84] Accordingly, it was submitted that her Honour failed to take into account the appellant's service of the term imposed by Flynn DCJ sufficiently, or at all, resulting in a total sentence of 6 years 2 months' imprisonment (when the sentence imposed by Flynn DCJ is taken into account), which, ostensibly, infringed the totality principle.
[84] Appellant's case, par 56.
Whilst the respondent accepted that the totality principle was potentially applicable in the present case, it submitted that the assumptions which underpin the rationale for the totality principle did not apply in these circumstances.[85] In particular, the respondent submitted that the 'total sentence' of 6 years 2 months' imprisonment was proportionate and properly reflected the appellant's overall criminality for all of the offences he had committed. Therefore, the appellant failed to demonstrate any implied error contrary to the totality principle.

Ground 2 - legal principles

[85] Respondent's answer, par 33.

As explained by the High Court in Mill v The Queen,[86] the effect of the totality principle is to require a sentencing judge who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. This common law principle has also been acknowledged by statute in s 6(3)(b) of the Sentencing Act.
[86] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 ‑ 63.
In Western Australia, it is well established that the totality principle comprises two limbs. In the present case, only the first limb of the totality principle is alleged to have been infringed. The first limb requires that the total effective sentence imposed by a sentencing judge must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to both the circumstances of the case, including those referable to the offender personally, and the desirability of keeping alive his or her wish to rehabilitate.[87]
[87] Roffey v The State of Western Australia [2007] WASCA 246 [24], citing Woods v The Queen (1994) 14 WAR 341, 352.
The totality principle is applicable to cases other than where a single judge is sentencing an offender for more than one offence. The totality principle may apply, at least by way of analogy, even when the sentences for prior offences have been completed.[88]
[88] See Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [7] and, more generally, see Merritt v The State of Western Australia [2019] WASCA 203 [44] ‑ [52].
The rationale for the totality principle was explained by Anderson J (with whom Pidgeon & Ipp JJ agreed) in Vlek v The Queen, as follows:[89]
[W]hen a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately … Furthermore, … the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude … Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case.

The offences dealt with by Flynn DCJ

[89] Vlek v The Queen (Unreported, WASCA, Library No 990153C, 29 March 1999) 10.

On 2 February 2020, the appellant was convicted on his pleas of guilty of three charges on indictment 2600 of 2020. Count 1 alleged that, on a date unknown in March 2020, at Carnarvon, the appellant sold a prohibited drug, namely methylamphetamine. Count 3 of the indictment alleged that, on 20 July 2020, at Carnarvon, the appellant had in his possession a prohibited drug, also methylamphetamine, with intent to sell or supply it to another. Count 4 alleged that, on the same day and same place as count 3, the appellant was in possession of property, being $1,900 in cash, which was reasonably suspected of having been unlawfully obtained. Another charge, count 2, on the indictment, was discontinued.[90] The pleas of guilty were entered after the matter had been committed for trial, and were therefore not entered at the first reasonable opportunity.
[90] ts 63 - 64.

Flynn DCJ set out the facts of the offending in his Honour's sentencing remarks. Briefly, in relation to count 1, the appellant travelled to Carnarvon in March 2020, where he sold 1.75 g of methylamphetamine to a known drug user for the price of $800. With respect to counts 3 and 4, the appellant later returned to Carnarvon with the intention of selling more drugs. Police officers intercepted the vehicle in which he was travelling outside Carnarvon and discovered 6.27 g of methylamphetamine with a purity of 13% in a moisturiser bottle, as well as $1,900 in cash inside a vehicle logbook sitting on the dashboard. His Honour noted that the quantity of methylamphetamine the subject of count 3 would likely have had a gross selling price of $3,600.
Flynn DCJ characterised the appellant's offending as being towards the lower end of the scale for offences of this type dealt with by the District Court.[91] His Honour found that the motive for the offending was a desire by the appellant to obtain money to continue supporting his own drug habit. His Honour noted the appellant's 'substance abuse history' and expressed caution about the appellant's prospects of rehabilitation. Flynn DCJ also noted that there was no evidence before the court to indicate that the appellant had sought any professional help in relation to his entrenched methylamphetamine abuse.[92]
[91] ts 82.
[92] ts 85.
Flynn DCJ imposed individual sentences of 8 months' immediate imprisonment on count 1; 12 months' immediate imprisonment on count 3; and 6 months' immediate imprisonment on count 4. His Honour ordered that the sentences on counts 1 and 4 be served cumulatively, thus resulting in a total effective sentence of 14 months' immediate imprisonment. The appellant was made eligible for parole and the sentences were ordered to commence from 24 July 2021, reflecting the time the appellant had spent in custody on remand.[93]

Ground 2 - disposition

[93] ts 87.

In our opinion, ground 2 has no merit.
The submissions made on behalf of the appellant in support of ground 2 rely on some of the core assumptions that underpin the rationale for the totality principle, as set out in [89] above. However, in any particular case, the facts may reveal that one or more of those assumptions have been negated.[94] This is such a case. We accept the respondent's submissions, namely that her Honour's findings that the appellant had not fully accepted responsibility for his conduct and lacked insight, strongly indicated a significant need for personal deterrence and denunciation. Nor is there any evidence that the appellant has made real progress in his rehabilitation in respect of his entrenched illicit substance abuse. It is unnecessary to repeat what we have already said about the seriousness of the domestic violence offences that were dealt with by Lonsdale DCJ. The drug offences dealt with by Flynn DCJ was serious enough to warrant terms of immediate imprisonment. Given the persistent nature of that offending, that it had a commercial aspect to it, and considering the need for general deterrence, the total effective sentence imposed by Flynn DCJ was entirely appropriate and was, if anything, somewhat modest.
[94] See, for example, The State of Western Australia v Doodson [2021] WASCA 148 [50].
In our opinion, having regard to all of the relevant circumstances, the overall criminality of the offences committed by the appellant, which were dealt with by Flynn DCJ and, later, Lonsdale DCJ, is properly reflected in a total sentence of 6 years 2 months' imprisonment. The terms of imprisonment imposed by Lonsdale DCJ did not infringe the first limb of the totality principle. They were not unreasonable or plainly unjust. Leave to appeal on ground 2 is refused.

Conclusion and orders

As leave to appeal on each ground of appeal is refused, the appeal must be dismissed.
The orders that we would make are as follows:
1.Leave to appeal is refused on grounds 1 and 2.
2.The appeal is dismissed.

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
13 MAY 2024