Nsa v The State of Western Australia - [2023] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NSA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 53
CORAM:   MAZZA JA
BEECH JA
VAUGHAN JA

HEARD:   23 AUGUST 2022 & WRITTEN SUBMISSIONS FILED 30 AUGUST 2022 & 7 SEPTEMBER 2022
DELIVERED          :   6 APRIL 2023
FILE NO/S:   CACR 2 of 2022
BETWEEN:   NSA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   IND 45 of 2021

Catchwords:

Criminal law – Appeal against sentence – Appellant convicted after pleas of guilty of one count of persistently engaging in sexual conduct with child under 16 years (count 1), one count of sexual penetration of child under 13 years (count 2), one count of possession of child exploitation material (count 3) and one count of attempting to pervert the course of justice (count 4) – Whether judge erred by ordering sentence for count 2 be served cumulatively with sentence for count 1 having regard to s 321A(13) of Criminal Code

Resentencing – Application of s 41(2) of Criminal Appeals Act – Application of principle in McGarry v The Queen

Legislation:

Criminal Appeals Act 2004 (WA), s 41
Criminal Code 1913 (WA), s 321A

Result:

Leave to adduce additional evidence granted
Leave to appeal granted
Appeal upheld
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	R Sleeth
Respondent	:	K C Cook

Solicitors:

Appellant	:	R Sleeth
Respondent	:	Director of Public Prosecutions (WA)

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

Bogers v The State of Western Australia [2020] WASCA 174
Burnes v The State of Western Australia [2017] WASCA 77
Gaskell v The State of Western Australia [2018] WASCA 8
Hall v The State of Western Australia [2018] WASCA 151
Jacomb v The State of Western Australia [2021] WASCA 81
Jetter v The State of Western Australia [2021] WASCA 80
Law v The Queen [2019] WASCA 81
Le-Ta v The State of Western Australia [2020] WASCA 14
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
MHE v The State of Western Australia [2019] WASCA 133
O'Hara v The Queen [2021] WASCA 123
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
R v Irvine [2016] SASCFC 104; (2016) 126 SASR 146
R v Lomax [1998] 1 VR 551
R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Spence v The State of Western Australia [2014] WASCA 171
Strong v The Queen [2005] HCA 30; (2005) 224 CLR 1
The State of Western Australia v ADS [2021] WASCA 99
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Edwards [2022] WASCA 141
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
The State of Western Australia v Popal [2020] WASCA 200
The State of Western Australia v Quartermaine [2021] WASCA 145
The State of Western Australia v THN [2023] WASCA 18
The State of Western Australia v TLP [2019] WASCA 66
The State of Western Australia v Wilkins [2020] WASCA 149
The State of Western Australia v Zhuang [2021] WASCA 56
Wilson v The State of Western Australia [2014] WASCA 236
YDN v The State of Western Australia [2018] WASCA 62

MAZZA JA:

This is an appeal against sentence.
The appellant was convicted on his pleas of guilty of four offences contained in an indictment. Count 1 was that between 26 November 2014 and 1 December 2019 the appellant persistently engaged in sexual conduct with S, a child under the age of 16 years, contrary to s 321A(4) of the Criminal Code 1913 (WA) (Code). Count 2 was that on a date unknown between 1 January 2016 and 1 October 2016 the appellant sexually penetrated S, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Code. Count 3 was that on 23 September 2020 the appellant possessed child exploitation material, contrary to s 220 of the Code. Count 4 was that between 24 September 2020 and 30 October 2020 the appellant, by seeking to suborn S, attempted to pervert the course of justice upon his prosecution for charges of sexual offending, contrary to s 143 of the Code.
On 6 December 2021, Gillan DCJ sentenced the appellant to the following terms of immediate imprisonment:
•Count 1:          5 years.
•Count 2:          1 year (reduced from 3 years' imprisonment for totality).
•Count 3:          4 months.
•Count 4:          8 months (reduced from 18 months' imprisonment for totality).
Her Honour designated the sentence of 5 years' imprisonment on count 1 as the head sentence. She ordered that the sentences on counts 2, 3 and 4 be served cumulatively upon each other and upon the sentence for count 1. Thus, the total effective sentence was 7 years' imprisonment, which her Honour backdated to begin on 23 September 2020. Her Honour ordered that the appellant be eligible for parole. Her Honour also made a violence restraining order to protect S, pursuant to s 63 of the Restraining Orders Act 1991 (WA).
The appellant relies on a single ground of appeal, which alleges, in substance, that her Honour erred in law by ordering that the sentence she imposed on count 2 be served cumulatively with the sentence she imposed on count 1. The length of none of the individual sentences are challenged. As will be seen, the order for cumulation of the sentence on count 2 was contrary to s 321A(13) of the Code. The effect of this subsection is that her Honour was prohibited from making the order for cumulation. The respondent correctly conceded that her Honour erred as alleged in the ground of appeal and that the error was material. The ground of appeal is made out and the appellant is liable to be resentenced at least on count 2. An issue arose during the hearing of the appeal concerning the applicability of s 41(2) of the Criminal Appeals Act 2004 (WA) (CAA) to the resentencing of the appellant, particularly on count 1. The parties have made written submissions on this point and the appellant has applied for leave to adduce further evidence said to be relevant to the resentencing.

The facts

The facts are not in dispute.
The appellant was born in late 1964. S was born in late 2003. She has a younger brother whom I will refer to as T. T has a cognitive impairment. The appellant is S and T's father. Counts 1 and 2 occurred at the appellant's house in a regional city of Western Australia. By reason of an order made in the Family Court of Western Australia, S was placed in the appellant's care. It was whilst in his care that the appellant committed counts 1 and 2.
The conduct the subject of count 1 took place between 26 November 2014 and 1 December 2019, and comprises numerous incidents of varying kinds of sexual conduct, as follows.
From the time S was about 11 or 12 years old until she was about 14 or 15 years old, the appellant would place wax strips on her genital area to remove her pubic hair. He did this every two to four weeks.
About once a month, from late 2016 or early 2017, the appellant 'checked' S for 'worms', despite S telling him that she did not have 'worms' and that he could give her tablets for the condition. The appellant required S to lie fully or partly naked on a bed and then inspect her genital area, including by spreading apart her labia and buttocks with his fingers. On occasions, the appellant made comments to S about her genitals and told her that she should not feel self‑conscious about them.
About every two weeks, from late 2016 or early 2017, the appellant massaged S while she was fully naked. The appellant would do so under the guise of a therapeutic massage. The appellant began each massage by massaging S's feet or back, after which, he proceeded to perform a full body massage. While doing so, the appellant touched the area close to, but not on, S's vagina. He also massaged S's breasts.
On four or five occasions in about 2016 or 2017, the appellant touched S's breasts, ostensibly checking for 'lumps' to ensure S did not have breast cancer.
Finally, in respect of count 1, the appellant would kiss S on her lips, at least twice daily.
Count 2 occurred when S was 12 years old, before she first began menstruating. On the occasion in question, the appellant made S insert a tampon into her vagina while he watched her. Despite S telling the appellant that she could do so herself, the appellant insisted on 'helping' her. The appellant then inserted a tampon into S's vagina using his finger and, in the process, penetrated her vagina. S then got into a bath, and the appellant asked S how the tampon felt in her vagina.
Although count 2 occurred during the period covered by count 1, the State did not allege that the sexual act the subject of count 2 was part of the sexual conduct that comprised count 1. This is evident from the statement of material facts, read by the prosecutor in open court during the sentencing proceedings, which was unchallenged by the appellant and later incorporated by her Honour into the sentencing remarks.[1]
[1] ts 10 ‑ 11, 23.
In addition to the conduct the subject of counts 1 and 2, the appellant engaged in other inappropriate conduct towards S. The appellant would often walk into the bathroom when S was having a shower and, on occasions, opened the shower door. The appellant did not allow S to close the bathroom door when she was having a shower, nor her bedroom door when she was getting dressed. In 2018, the appellant purchased a spa. He told S not to wear any bathers when she was in the spa. There were numerous occasions on which the appellant, S, and T would be in the spa together, each completely naked. On other occasions, the appellant would ask S, 'so when are you going to show me how you pee?'
As to count 3, on 23 September 2020, the appellant was arrested by police and his mobile phone was seized. Police found three photographs of T on the appellant's phone, which showed T, who was then approximately 12 years old, posing in women's lingerie and high‑heeled shoes. The three photographs were assessed as category 1 child exploitation material.
Count 4 occurred after the appellant's arrest, while he was in custody on remand. In essence, in the period between 24 September 2020 and 30 October 2020, the appellant sought to suborn S to not cooperate in the prosecution against him. He did not do this by direct communication with S, but instead, used intermediaries, namely his then partner, his sister, and his ex‑partner, to convey to S the conditions in which he was being held, and by later encouraging his sister to take S on an outing.
On the morning of 10 October 2020, the appellant contacted his ex‑partner and gave her a list of things to tell S, including that he could not get bail; that he was not allowed to see T; that his ex‑partner and his sister were in tears; and that the appellant saw someone get raped in prison, and he would be next if others in gaol found out the nature of the charges he faced.
Later that same morning, the appellant spoke to his then partner and told her to contact his ex‑partner and add to the list he had already given the latter that he was:
[t]he smallest, whitest, and the oldest in here, surrounded by meth‑heads and fucking the likes I don't mix with. In with murderers.[2]
[2] ts 13.
During a telephone conversation between the appellant and his ex‑partner on 11 October 2020, the appellant inquired when the ex‑partner would catch up with S, emphasising, 'that needs to be done'.[3]
[3] ts 13.
On 17 October 2020, the appellant spoke with his ex‑partner and told her to add other matters to the list: that he was being held in custody, with a man accused of stabbing two people before trying to kill a third; and that he was 'locked in with all these fucking smokers and other things'.[4]
[4] ts 14.
On 22 October 2020, the appellant telephoned his sister. During the conversation, the appellant encouraged her suggestion that she should send flowers to S. On 24 October 2020, the appellant telephoned his sister and asked if she had sent the flowers. The appellant's sister said that she had not sent the flowers, but instead would buy tickets for her and S to go to a show together. On 25 October 2020, when the appellant's sister told him that she had texted S about going to a show and lunch at the casino, the appellant replied, 'Aww, beautiful, yep'.[5]
[5] ts 15.
On 29 October 2020, the appellant telephoned his then partner who told him that she was going to see his ex‑partner later that day. The appellant said:
Well, let her [the ex‑partner] know and let everyone else know that I'm in protection and, um, put it on the list, although they might actually enjoy that, mightn't they?[6]
[6] ts 15.

Personal circumstances

The appellant was aged between 49 and 55 years during the period of his offending. He was aged 57 years at his sentencing.
The appellant had what was described by the sentencing judge as a 'good childhood with parents who treated [him] well'.[7] He has maintained a good relationship with his parents and younger sibling. At the age of 10, he was the victim of sexual abuse perpetrated by a teacher.
[7] ts 40 ‑ 41.
The appellant has dyslexia. He left school at the end of year 10. Since then, he has regularly been employed in a variety of jobs including as a truck driver and disability worker.
The appellant has two adult children in addition to S and T. At the time of his sentencing, he had been with his current partner for four years.
The appellant is of reasonable physical health. In addition to knee surgery, he reported being electrocuted about seven years ago.
The appellant has a short and minor history of mainly traffic offences which is irrelevant for present purposes. The sentencing judge was provided with character references that spoke well of the appellant. The sentencing judge was also provided with a pre‑sentence report, a psychological report, and a neuropsychological report.
According to the author of the neuropsychological report, Ms van Eden, the appellant's general ability (a combination of verbal and perceptual abilities) was calculated to be in the low average range, and equal to or better than 18% of the general population. His premorbid intellectual ability that is, prior to his accidental electrocution, was estimated to be, at best, within the lower average range, around the 25^th percentile. There was no psychometric evidence to indicate any organic memory impairment, nor was there any neuropsychological reason to suggest that the appellant may have functional difficulties in daily living. In Ms van Eden's opinion, there was insufficient neuropsychological evidence to support a hypothesis of cognitive impairment due to electrocution. Ms van Eden stated that the appellant had the cognitive ability to engage in therapy.
The author of the psychological report, Ms Zuin, observed that the appellant:
emphatically denied that his behaviour was sexually motivated and/or that he derived any sexual arousal. He also denied any sexual interest in his daughter and went to great lengths to justify, rationalise, minimise, and normalise his behaviour.[8]
[8] Psychological report [5].
Ms Zuin wrote that the appellant told her that he did not realise his behaviour was inappropriate at the time of the offending because that was the way he was raised.
In Ms Zuin's opinion, the appellant has significant treatment needs and, given his issues with literacy, it would be preferable for such treatment to be provided to him on an individual basis. She strongly recommended that the appellant should not be permitted unsupervised contact with children, having regard to his 'extreme' tendency to minimise, normalise, and justify his behaviour.
In her report, Ms van Eden noted, consistently with the observations of Ms Zuin, that the appellant demonstrated a lack of empathy towards S and T, and a lack of insight into the consequences of his behaviour.

Victim impact statement

The offending has had a profound adverse effect upon S, which is succinctly set out in her victim impact statement. Among the many ways the offending has affected her, S stated that she felt she was the appellant's 'possession' and that she was owned by him having no control over her own body or her life. S wrote that the appellant told her he had 'paid' for her by going through the Family Court. S has been diagnosed with depression and anxiety. She has suicidal tendencies. She is fearful of men and distrustful of everyone. The offending has affected her sleep, schoolwork, and relationships, including with her brother.

The sentencing remarks

Her Honour effectively incorporated the statement of material facts into her sentencing remarks.[9] It is clear that the sexual acts the subject of count 1 did not include the conduct the subject of count 2.
[9] ts 23.
The sentencing judge set out the appellant's personal circumstances and summarised the contents of the psychological and neuropsychological reports.
Her Honour identified, as the principal matters in mitigation, the appellant's pleas of guilty, for which she gave a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), and the appellant's 'developing remorse'.[10]
[10] ts 26.
As to the offending itself, her Honour stated:
(1)The sexual offending against S, his daughter, was prolonged and she was 'particularly vulnerable'.[11] Her Honour characterised the offending as 'insidious',[12] having regard to the pretexts created by the appellant in order to carry out the various sexual acts.
[11] ts 26.
[12] ts 26.
(2)With respect to count 2, her Honour described this as 'a further example of the way in which [the appellant] used a pretext to "cover" [his] offending and [his] ongoing sexualisation of [S]'.[13]
[13] ts 27.
(3)With respect to count 3, her Honour observed that T was 'a very vulnerable young person' by reason of his cognitive impairment.[14]
[14] ts 27.
(4)With respect to count 4, her Honour said:[15]
[15] ts 27 - 28.
And the attempt to pervert the course of justice is serious in that [the appellant] tried to enlist the assistance of others who were close to [him] and close to [his] daughter and who, at that stage, at the very least, believed [his] denials of guilt and sought to use the influence and control [he] had established over [S] and guilt [sic] her into withdrawing her assertions.
Having concluded that no penalty short of immediate imprisonment was appropriate because of the seriousness of the appellant's offending, her Honour then proceeded to impose the individual sentences and make the orders for cumulacy set out in [3] and [4] above. Her Honour also made a lifetime violence restraining order to protect S, pursuant to s 63 of the Restraining Orders Act 1997 (WA), which has not been challenged in this appeal.
Neither counsel nor the sentencing judge referred to the terms of s 321A(13) of the Code.

The ground of appeal and its disposition

The ground of appeal is in succinct terms:
The learned sentencing judge cumulated the sentence on count 2 on count 1. Section 321A(13) of the Criminal Code 1913 (WA) expressly precludes this.
In essence, the ground of appeal alleges that her Honour erred in law in accumulating the sentence on count 2 with the sentence she imposed on count 1, because such an order is precluded by the express terms of s 321A(13) of the Code. The respondent concedes that her Honour erred as alleged. This concession is properly made for the following reasons.
As already mentioned, count 1 is an offence contrary to s 321A(4) of the Code, which provides that a person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.

Section 321A(2) of the Code provides that, for the purposes of s 321A, a person persistently engages in sexual conduct with a child if that person does a 'sexual act' in relation to the child on three or more occasions, each of which is on a different day. A 'sexual act' is defined in s 321A(1) as an act which would constitute a prescribed offence. In the same subsection, among the offences defined as prescribed offences is an offence under s 320(2) of the Code. Count 2 is such an offence.
Section 321A(5) relevantly provides that a charge of an offence under subsection (4) must specify the period during which it is alleged that the sexual conduct occurred, but need not specify the dates or in any other way particularise the circumstances of the sexual acts alleged to constitute the sexual conduct.
Section 321A(6) allows a person charged with an offence under subsection (4) to also be charged with a prescribed offence that is alleged to have been committed in the same period in which it is alleged that the sexual conduct constituting the offence under subsection (4) occurred. Accordingly, it was open to the State to charge the appellant with count 2. However, and pertinently to the ground of appeal, s 321A(13) states:
If a person is sentenced, whether on one or more than one indictment, to -
(a)a term of imprisonment for an offence under subsection (4); and
(b)a term of imprisonment for a prescribed offence committed in the period during which the offence under subsection (4) was committed,
the court must not order the terms to be served wholly or partly cumulatively. (emphasis added)
In the present case, count 1 was alleged to have been committed between 26 November 2014 and 1 December 2019. Count 2, a prescribed offence as relevantly defined, was alleged to have been committed on a date unknown between 1 January 2016 and 1 October 2016, that is, within the period during which the offence under subsection (4) was allegedly committed. Accordingly, s 321A(13) precluded the sentencing judge from ordering the sentence she imposed on count 2 to be served cumulatively upon the term imposed on count 1. By doing so she erred. The ground of appeal has been made out. The error is, as the respondent conceded, material because it was not open to the sentencing judge to order the accumulation of the sentence on count 2 with the sentence on count 1. While the parties agree that any sentence imposed on count 2 must be served concurrently with count 1, they differ as to how the appellant should be resentenced in respect of his overall offending. It is to this question that I now turn.

Resentencing

There is no question that the sentence on count 2 must be set aside and this court must resentence the appellant on this count. However, questions arose in the course of the hearing of the appeal as to whether this court has the power to resentence the appellant on other counts and if it does, what is the source of the power and how should the power be exercised in this case.
The parties proceeded on the common basis that this court's statutory power to resentence the appellant was governed by s 41(2) of the CAA. The parties' submissions were particularly focussed on whether s 41(2) of the CAA empowered this court to resentence the appellant on count 1 and, if so, should it do so.
The respondent's position was this court was not only empowered to resentence the appellant on count 1, but it should do so. Moreover, in doing so this court should proceed on the basis that the conduct in count 2 should be considered as part of the conduct in count 1. The respondent submitted that this court should increase the individual sentence on count 1 although it accepted that the court could not resentence the appellant to a total effective sentence of beyond 7 years' imprisonment.
The appellant's position was that although the court was empowered by s 41(2) of the CAA to resentence on count 1 because the sentence on count 1 took into account, as the subsection requires, the sentence on count 2, it should not do so. The appellant submitted that the operation of s 41(2) was discretionary and that the court should not exercise the power to resentence him on count 1 to a higher sentence. This is because the State chose, at first instance, not to include the conduct the subject of count 2 in count 1 and the State should not, on appeal, be permitted to run a different case on count 1 which alleges different criminal acts.
Towards the end of the oral hearing, the court queried whether in fact the sentence on count 1 'took into account' for the purposes of s 41(2) the sentence on count 2. The parties were given leave to file written submissions on the question which they did.
In substance, the written submissions filed by the parties affirm their respective positions that the appellant's resentencing is governed by s 41(2). The respondent submitted that this was the sole statutory basis for the court's power to resentence the appellant on counts 1, 3 and 4 and that, at least in respect of count 1, the sentences imposed took into account the sentence on count 2. The appellant submitted that the sentence on count 1 (and for that matter counts 3 and 4) did not take into account, for the purposes of s 41(2) of the CAA, the sentence on count 2. The ultimate position of the appellant in this appeal is that he should be resentenced to a total effective sentence of no more than 6 years' imprisonment.
These submissions raise this court's approach to the resentencing of an offender when the court sets aside an individual sentence which was imposed at the same time as other sentences that form part of the total effective sentence.
This court has many times stated the principle that when a sentencing judge's discretion miscarries in relation to one of the individual sentences forming part of the total effective sentence, the total effective sentence must be set aside and the court must exercise the sentencing discretion, afresh and for itself, on all aspects of the sentences imposed (the resentencing principle). See, for example, Sathitpittayayudh v The State of Western Australia,[16] Gaskell v The State of Western Australia,[17] and YDN v The State of Western Australia.[18] There are many others. The principle has been explained as an application of what was said by the High Court in McGarry v The Queen.[19] This application of McGarry is not questioned in this appeal, and, to my knowledge, has not been questioned in any other case decided in this court.[20] I do not do so now. This court has almost invariably resorted to the resentencing principle in appropriate cases, although, not in every case.
[16] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] – [29].
[17] Gaskell v The State of Western Australia [2018] WASCA 8 [152].
[18] YDN v The State of Western Australia [2018] WASCA 62 [53].
[19] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] – [9].
[20] McGarry was applied in this court by Buss JA, with whom Robert‑Smith JA agreed in Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 in circumstances different to the present case.
In McGarry, the appellant was convicted of one count of indecently dealing with a child under the age of 13 years. At first instance, he was sentenced to a term of imprisonment of 5 years and an order was made for indefinite imprisonment thereafter. On appeal, the Court of Criminal Appeal substituted 3 years' imprisonment for the 5 year sentence and affirmed the order for indefinite imprisonment. The High Court held, by a majority, that where an appellate court concluded that the sentencing judge's discretion had miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the primary judge, including the order for indefinite imprisonment, ought to be set aside and the appellate court should then resentence the offender.
Of course, the issue the High Court was required to decide in McGarry involved a different exercise to that referred to in [57] above. I further observe that McGarry was decided before the introduction of the CAA. At the time McGarry was decided, the Court of Criminal Appeal's powers to resentence was set out in now repealed provisions of the Criminal Code including s 693(1) which read:
(1)Where the Court of Criminal Appeal -
(a)allows an appeal against the conviction of an appellant for an offence; or
(b)passes a sentence in substitution for the sentence passed on an appellant on his conviction for an offence,
and, at the time when the Court allows the appeal or passes the sentence, as the case may be, the appellant is undergoing, or under sentence to undergo, a sentence passed for another offence for which he was convicted on or after the occasion on which he was convicted of the first mentioned offence, the Court may pass such sentence in substitution for the sentence passed for that other offence as they think proper, and as may be warranted in law for that offence, or may give directions as to when the sentence passed for that other offence takes effect which may include a direction that the sentence is to be regarded as having taken effect at a time which precedes the making of the direction.
The power of this court's predecessor to resentence in respect of another offence imposed on or after the offence the subject of a successful appeal, while discretionary, was wide in its scope.
I now turn to the relevant statutory provisions contained in the CAA which provide this court's power to resentence an offender and apply to the present case.
By s 23(1)(b) of the CAA an offender convicted of an offence on indictment may appeal to this court, relevantly to the present case, against 'the sentence imposed on the offender'.
Section 31 of the CAA applies in the case of an appeal against sentence by an offender under s 23.
Section 31(4) provides that the Court of Appeal may allow the appeal if, in its opinion, a different sentence should have been imposed.
Section 31(5) states:
If the Court of Appeal allows an appeal referred to in subsection (1)(a) [which refers to a sentence imposed as a result of a conviction on indictment], it must set aside the sentence and ‑
(a)may instead impose a new sentence that is either more or less severe; or
(b)may send the charge back to the court that imposed the sentence to be dealt with further. (emphasis added)
Section 41 of the CAA appears in Part 4 which is headed 'Provisions applicable to any appeal'.
Section 41(2) of the CAA states:
If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -
(a)that was imposed at or after the time when sentence A was imposed; and
(b)that took into account sentence A.
If s 41(2) applies to the present case, sentence A is the sentence on count 2.
Section 41(2) of the CAA is somewhat analogous to the repealed s 693(1) of the Criminal Code. However, there is a significant difference. The requirement in s 41(2) that the other sentence 'took into account', the sentence that the court has set aside was not part of s 693(1). To this extent, when compared with s 693(1) the power to resentence under s 41(2) in respect of another offence is more limited.
I am unable to reconcile the resentencing principle with s 41(2) of the CAA. This is because the power in s 41(2) to resentence for another offence requires the sentence imposed for that offence to take into account the sentence that was set aside. This requirement is not and has never been, as I understand it, a feature of the resentencing principle. I observe that, it has previously not been stated that the resentencing principle is reflected in s 41(2) of the CAA.
This is not to say that the resentencing principle is without a statutory foundation. Contrary to the respondent's submissions, s 41(2) of the CAA is not 'the sole statutory source of this court's discretion to resentence an offender'. The power is plainly conferred by s 31(5)(a) of the CAA by the italicised words referred to in [65] above. Indeed, it is this power that is the source of the resentencing on count 2. It may be that the resentencing principle is reconcilable with s 31(5)(a). Exactly how this may occur, has not been the subject of submissions in this appeal. Accordingly, it is undesirable to attempt such a reconciliation in this case.
The resentencing of the appellant in this case gives rise to questions which are beyond the ambit of the parties' submissions and in my opinion are matters for another day. The questions include; (a) the relationship, scope and application of s 31(5)(a) and s 41(2) in cases such as the present; and (b) how the resentencing principle relates to these provisions.
The expression 'took into account' should be given its plain meaning and requires little, if any, elucidation. It means that the court at first instance, in imposing another sentence, had regard to or the sentence was affected by, the sentence being varied.
Whether the other sentence 'took into account' the sentence being varied will depend upon the circumstances of the particular case, but the answer would generally be found by an analysis of the sentencing remarks including orders for concurrency, cumulacy and the application of the totality principle.
I have concluded that the sentence on count 1 did not take into account the sentence on count 2. I have arrived at this conclusion for three reasons.
First, it is clear from the sentencing remarks that the sexual acts the subject of count 1, consistently with the respondent's case, did not include the offending the subject of count 2.
Secondly, as counsel for the respondent properly accepted in oral submissions to this court,[21] there is no express statement by the sentencing judge that her Honour arrived at the sentence of 5 years' imprisonment that she imposed on count 1 by having regard to the sentence on count 2. Nor is it implied from a consideration of the sentencing reasons as a whole that she had regard to the sentence on count 2, or that the sentence that she imposed on count 1 was in any way affected by that sentence. For example, her Honour did not state that she reduced the sentence on count 1 for totality having regard to the cumulative sentences she imposed on counts 2, 3 and 4.
[21] Appeal ts 18.
Thirdly, the way in which her Honour structured the total effective sentence points away from the conclusion that the sentence on count 1 took into account the sentence on count 2. Count 1 was designated as the head sentence, and the cumulative sentences on counts 2 and 4 were then reduced for totality. I would infer that the reduction for totality was influenced by the length of the sentence on count 1, but not vice versa.
I do not think the sentence on count 3 took into account the sentence on count 2. There is nothing in the sentencing remarks to so indicate.
Contrary to the appellant's submissions, it is clear that the sentence on count 4 took into account the sentence on count 1. This is because the sentence on count 4 was reduced for totality having regard to the other cumulative sentences, including, count 2.
Thus, s 41(2) of the CAA empowers this court to resentence the appellant only on count 4. The source of power to sentence the appellant in respect of count 2 is s 31(5)(a). The resentencing on counts 1 and 3 can be accommodated by operation of the resentencing principle. I now proceed to resentence on all counts.
I will not repeat what I have already stated about the circumstances of the appellant's offending and his personal circumstances. As to his personal circumstances, by an application in an appeal filed 26 October 2022, the appellant sought leave to adduce as additional evidence, relevant to his resentencing, the affidavit of his lawyer, Rebekah Suzanne Sleeth, affirmed on 26 October 2022, which contained an annexure setting out a number of certificates which show that while the appellant has been in prison, he has completed a substantial number of vocational and other courses. The respondent has not opposed the admission of this material, which is relevant to the resentencing of the appellant. I would grant leave to the appellant to adduce the material to which I have had regard.
The most significant mitigating factor is the appellant's pleas of guilty, for which the sentencing judge, pursuant to s 9AA of the Sentencing Act, gave a discount of 20%. In its written submissions, the respondent submitted that this was 'generous', and that it was open to this court in resentencing the appellant to apply a different and lower discount.[22] I would not impose a different s 9AA discount, bearing in mind that the pleas of guilty had the consequence of relieving the State's witnesses, particularly S, of being required to testify at a trial. The pleas of guilty were entered at various stages in the Magistrates Court. A 20% s 9AA discount is appropriate.
[22] Respondent's answer, par 11.
With respect to count 1, I would not, contrary to the submission of the respondent, resentence the appellant having regard to the additional sexual conduct in count 2. I accept the appellant's submission on this point that the respondent, having run its case on count 1 at first instance without reference to the conduct the subject of count 2, should not now be able to make a different case before this court as to the sexual conduct which encompasses count 1. Having regard to all the relevant facts and circumstances I would impose a sentence of 5 years' imprisonment on count 1.
With respect to the sentence on count 2, in accordance with s 321A(13) of the Code, any sentence must be ordered to be served concurrently with the sentence on count 1. The offending the subject of count 2, which involved the digital penetration of S's vagina when she was 12 years old under the guise of 'helping' her insert a tampon into her vagina, was serious offending, particularly having regard to its insidious nature and S's vulnerability. Beyond the plea of guilty, there was little additional mitigation. I see no reason to reduce the individual sentence on this count for totality, given that it must be served concurrently with the sentence that was imposed on count 1. It must also be borne in mind that the maximum penalty for count 2 was 20 years' imprisonment. In all of the circumstances, I would resentence the appellant on count 2 to 3 years' imprisonment.
As to count 3, I would impose a sentence of 4 months' imprisonment.
As to count 4, as the sentencing judge recognised, this was offending that occurred after the appellant's arrest and involved the appellant attempting to enlist others to suborn S to withdraw her allegations of sexual offending by the appellant. It was a reasonably serious example of its type. Bearing in mind all of the relevant facts and circumstances and that the maximum penalty for the offence is 7 years' imprisonment, I would impose a sentence of 18 months' imprisonment with respect to count 4.
I now turn to issues of concurrency, cumulacy and totality. In respect of count 2, this sentence must be served concurrently with the sentence on count 1. The sentence on count 4 should be served cumulatively on the sentence for count 1. An order for accumulation on this sentence is necessary because it represents separate offending which occurred after the offending on counts 1, 2 and 3 and to reinforce the importance of general deterrence. However, applying the totality principle, I would reduce the sentence on count 4 to 15 months' imprisonment and I would order that the sentence on count 3 be served concurrently.
Thus, I would resentence the appellant to a new total effective sentence of 6 years 3 months' imprisonment. Bearing in mind that the sentence on count 2 must, by operation of statute, be served concurrently, this is a proper reflection of the appellant's overall offending, having regard to all of the offences and all of the relevant sentencing factors, including the mitigating factors.

Conclusion and orders

The ground of appeal is made out and the appeal against sentence must be allowed, with the consequence that the appellant must be resentenced. The orders that I would make are as follows:
(1)The appellant's application filed 26 October 2022 to adduce additional evidence in the appeal is granted.
(2)Leave to appeal is granted.
(3)The appeal is allowed.

(4)The sentences imposed by Gillan DCJ are set aside.
(5)The appellant is resentenced as follows:
Count 1           5 years' imprisonment.
Count 2           3 years' imprisonment.
Count 3           4 months' imprisonment.
Count 4           15 months' imprisonment.
(6)The sentences on counts 2 and 3 are to be served concurrently with the sentence on count 1. The sentence on count 4 is to be served cumulatively upon the sentence on count 1. For the avoidance of doubt, the appellant is resentenced by this court to a total effective sentence of 6 years 3 months' imprisonment. The new total effective sentence shall commence on 23 September 2020, and the appellant remains eligible for parole.

BEECH JA:

Introduction

I agree with Mazza JA, for the reasons that his Honour gives, that the ground of appeal is made out. The sentencing judge erred in ordering that the sentence on count 2 be cumulative on the sentence on count 1. Consequently, this court must resentence the appellant in relation to count 2. The parties are at issue as to whether this court can and should resentence on the other offences. I write separately concerning the scope of the resentencing.

What counts fell within s 41(2) of the Criminal Appeals Act?

The focus of the parties' submissions as to resentencing was on s 41(2) of the Criminal Appeals Act.
In my view, s 41(2) is not engaged in relation to count 1, because the sentence for count 1 did not take into account the sentence for count 2 within the meaning of that provision.
The phrase 'took into account' in s 41(2) has its ordinary meaning of had regard to. Whether a sentence for one offence took into account

the sentence for another offence is, ordinarily at least, to be discerned from the sentencing remarks and sentencing outcome. The sentencing judge evidently began by determining the appropriate sentence for count 1, in isolation from other offences. The sentence on count 1 was the head sentence, in relation to which other sentences were made either concurrent or cumulative. Nothing in her Honour's sentencing remarks suggests that she had regard to the sentence for count 2 in determining the sentence for count 1. By contrast to the sentence for count 4, her Honour did not suggest that the sentence for count 1 was reduced for totality (and to have done so would, given that it was the head sentence, have been unconventional).

The sentence on count 4 plainly took into account the sentence for count 2, in that the sentence for count 4 was reduced for totality reasons.
I am not persuaded that the sentence for count 3 took into account the sentence on count 2. Her Honour did not say that she was reducing it for totality, and ordered it to be served cumulatively.
Thus, s 41(2) authorises a resentencing on count 4 but not on counts 1 or 3.

Section 41(2) and the broad principle derived from McGarry

The respondent's supplementary submissions raise a question as to whether, as the respondent submits, s 41(2) is exhaustive - in other words, are this court's powers to resentence in an appeal against sentence to be found exhaustively in s 41(2)?
Section 41(2), in its terms, is empowering; it is not expressed to be exhaustive. It confers a power on an appellate court that varies or sets aside a sentence to vary any other sentence imposed at or after that time that 'took into account' the first sentence. By contrast, the predecessor provision, s 693 of the Criminal Code (WA), conferred a broad and general power for the appellate court to substitute its own sentence in relation to all sentences imposed at the same time as, or subsequently to, the sentence found to be erroneous, without any 'took into account' requirement.
There is a considerable body of authority in this court to the effect that, when a sentencing judge's discretion miscarries in relation to one of the individual sentences forming part of the total effective sentence, the total effective sentence must be set aside and the appellate court must exercise the sentencing discretion afresh on all counts.[23] This broad principle has been explained as an application of what was said by the High Court in McGarry.[24]
[23] The State of Western Australia v Cairns [2006] WASCA 178 [42]; Sathitpittayayudh [28]; Burnes v The State of Western Australia[2017] WASCA 77; Gaskell [152]; Hall v The State of Western Australia [2018] WASCA 151 [16]; YDN [53]; Law v The Queen [2019] WASCA 81 [134]; MHE v The State of Western Australia [2019] WASCA 133 [69]; The State of Western Australia v TLP [2019] WASCA 66 [108]; Bogers v The State of Western Australia [2020] WASCA 174 [126]; The State of Western Australia v Hussian [2020] WASCA 186 [130]; The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24 [62]; The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [66]; The State of Western Australia v Popal [2020] WASCA 200 [52]; The State of Western Australia v Wilkins [2020] WASCA 149 [81]; The State of Western Australia v ADS [2021] WASCA 99 [92]; The State of Western Australia v AHD [2021] WASCA 13 [101]; Jacomb v The State of Western Australia [2021] WASCA 81 [94]; Jetter v The State of Western Australia [2021] WASCA 80 [68]; O'Hara v The Queen [2021] WASCA 123 [43]; The State of Western Australia v Quartermaine [2021] WASCA 145 [85]; The State of Western Australia v Zhuang [2021] WASCA 56 [181]; The State of Western Australia v Edwards [2022] WASCA 141 [49]; The State of Western Australia v THN [2023] WASCA 18 [50].
[24] McGarry [8] ‑ [9].
In O'Hara,[25] proceeding on the basis agreed between the parties, this court applied the principle in circumstances where the sentences found to have been appellably erroneous were all ordered to be served concurrently.
[25] O'Hara [43] - [45].
As noted in MHE,[26] a different approach has been taken by the Full Court of the South Australian Supreme Court in the context of the legislation applicable in South Australia.[27] The South Australian cases have reasoned that the sentence passed upon the conviction for each individual offence is a distinct sentencing decision that must be the subject of a separate appeal.[28] My research has not identified any other jurisdiction in Australia, apart from Western Australia, that has applied the decision in McGarry in the manner identified in [99] above.
[26] MHE (fn 70).
[27] See R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412; R v Irvine [2016] SASCFC 104; (2016) 126 SASR 146.
[28] Tyler [42] - [47], [56] - [63]; Irvine [21] - [28], [58], but compare [2] - [5].
In McGarry, the appellant, who was convicted of a single indictable offence, was, in addition to being sentenced to a finite term of imprisonment, the subject of an exercise of power under s 98(1) of the Sentencing Act 1995 (WA). That provision empowered the sentencing judge, 'in addition to' imposing the term of imprisonment for the offence, to 'order the offender to be imprisoned indefinitely' upon stipulated conditions being met. In McGarry, the plurality identified that an order for indefinite imprisonment was thus a part of the sentence which is imposed in the same way as is a parole eligibility order or an order for suspension.[29]
[29] McGarry [7].
Their Honours observed that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, formed part of a single sentencing decision.[30] That was so notwithstanding that the two components of the sentencing decision - the order for indefinite imprisonment and the nominal sentence - were the subject of separate rights of appeal, the former being an appeal as of right and the latter an appeal only with leave.[31] From that, it followed that if an appellate court identified a miscarriage of the discretion in fixing the nominal term, the whole of the sentence imposed by the sentencing judge, including the order for indefinite imprisonment, should be set aside and the appellate court is obliged to resentence the offender.[32]
[30] McGarry [8].
[31] McGarry [8].
[32] McGarry [9].
The decision and reasoning in McGarry and the subsequent decision of the High Court in Strong v The Queen[33] were carefully analysed by Buss JA, as his Honour then was, in Penny.[34] In that case, his Honour, with whom Roberts‑Smith JA agreed, held that, if the appeal court were to set aside the sentencing judge's decision not to make a parole eligibility order, it would be entitled and obliged to also set aside the balance of the sentencing decision, namely the fixed terms of imprisonment.
[33] Strong v The Queen [2005] HCA 30; (2005) 224 CLR 1.
[34] Penny [53] - [66], Roberts‑Smith JA agreeing [1].
On the face of things, the broad principle stated in [99] above does not sit easily with s 41(2). Section 41(2) stipulates a condition on the power it confers, namely that the other sentence took into account the sentence that the court has set aside. By contrast, no such condition exists under the broader principle founded on McGarry.
The statutory basis for the broad principle in [99] above, and the relationship between that principle and s 41(2), do not appear to have been discussed in any detail in the cases in this court, but are the subject of submissions in this appeal and so require consideration.
The respondent submits that:[35]
[35] Respondent's supplementary submissions [5] - [7].
(1)The sole statutory source of power to resentence an offender in a sentence appeal is s 41(2) of the Criminal Appeals Act.
(2)The broad principle in [99] above is consistent with the adoption of a broad construction of s 41(2).
(3)So construing s 41(2), the appellant should be resentenced on all counts.
In response, the appellant denies the third of these propositions and submits that the broad principle in [99] above does not apply to the present case, because the sentencing judge's error was confined to an erroneous order for cumulation of one of the offences.[36]
[36] Appellant's supplementary submissions [5] - [8].
I do not accept any of the respondent's submissions. I begin with the first, which involves the essential step of identifying the statutory source of this court's powers. Section 41(2) is not, contrary to the respondent's submission, the sole source of this court's power to resentence in a sentencing appeal. Such power is also conferred by s 31(5)(a) of the Criminal Appeals Act. Indeed, the primary source of this court's power to resentence in a sentencing appeal is conferred by s 31(5)(a). That provision empowers the court to resentence in substitution for the sentence the subject of the appeal; the powers in s 41 supplement the power in s 31, by empowering the court to vary sentences other than the sentence(s) the subject of the appeal.
Further, I am unable to accept that the broad principle in [99] above reflects the adoption by this court of a broad, or indeed any, construction of s 41(2). Nor do I consider that this court's adoption of the broad principle in [99] says anything as to the construction of s 41(2). That is because the principle in [99] has not been said to be founded on s 41(2), and nor, in my view, should it be so understood. In the vast majority of cases, when applying the McGarry principle, this court has not directed any attention to whether the other sentence 'took into account' the erroneous sentence. And, as the present case illustrates, it cannot always be said that each component individual sentence 'took into account' each other individual sentence that is part of the total effective sentence. I acknowledge that many of the cases decided by reference to the broad principle in [99] above might well have met the 'took into account' requirement as regards the total effective sentence, bearing in mind the following observations made in O'Hara:[37]
[37] O'Hara [45].
The total effective sentence reflects the overall criminality of the appellant's offending. Orders for concurrency and cumulacy or any adjustments to an individual sentence to take into account totality are informed by the sentencing judge's assessment of the overall seriousness of the offending. This assessment is, in turn, informed by the seriousness of the individual offences. Accordingly, if one or more of the individual sentences for the offending is infected by error, this court's jurisdiction to resentence for the offences beyond the offence(s) infected by error would be enlivened, even if the erroneous individual sentences had been ordered to be served wholly concurrently. Certainly, that will be so where, as here, the error(s) in relation to the individual concurrent sentence(s) is material to the evaluation of the overall criminality informing the total effective sentence.
Even so, while this reasoning would justify this court in exercising its own discretion in fixing a total effective sentence, it is less clear whether, and if so how, it would sustain the re‑exercise of discretion as to each individual sentence. On the face of it, in such circumstances, this court would give effect to its view as to the appropriate total effective sentence by the manner in which it made the various individual sentences cumulative or concurrent, without any occasion arising for interfering with each individual sentence.
In considering the merits of the respondent's submission that s 41(2) is the sole statutory basis for the broad principle in [99] above, to my mind it is necessary to consider what if any alternatives there are to s 41(2). There would seem to be only one other candidate: s 31(5).
In my view, having regard to what I have said in [110] above, the statutory foundation for the application of the McGarry principle in a case of sentencing for multiple offences can only be understood as follows. Because, according to the McGarry principle, in sentencing for multiple offences there is a single sentencing decision, the 'sentence' for the purpose of s 23, s 24, s 31(1), s 31(4) and s 31(5) of the Criminal Appeals Act is the whole of that single sentencing decision. In other words, by the appeal, the offender (or prosecution, as the case may be) challenges the whole of the sentencing decision even if the ground(s) assert error only in relation to one individual sentence. If error is established and this court considers, in the exercise of its independent discretion, that a different 'sentence' should have been imposed, it may impose that different 'sentence': s31(4) and s 31(5). In that regard, the 'sentence' comprises all the components of the sentences for the individual offences and the orders for concurrency and cumulacy. It will be enough to sustain a resentencing by this court that the court considers that a sentence different in any material respect should have been imposed - even if the resentencing results in the same total effective sentence.[38]
[38] In this respect, the position would mirror that described in R v Lomax [1998] 1 VR 551, 555, 564 ‑ 565 concerning the statutory regime then applicable in Victoria.
For the reasons in [110] above, if and to the extent that any doubts might arise as to whether 'sentence' in s 23 and s 31 can be so understood, I do not think such doubts sustain acceptance of the respondent's submission that the statutory foundation lies in s 41(2). Rather, such doubts would reflect doubt as to the correctness of this court's application of 'the McGarry principle' to cases of sentencing for multiple offences.
In that regard, it must be acknowledged that the McGarry decision concerned a single indictable offence, the sentencing for which was governed by a specific and quite distinct statutory regime. It must also be acknowledged that the translation by this court of the McGarry decision into the broad principle in [99] above renders a substantial component of s 41(2) superfluous. When an offender is sentenced for multiple offences 'at the same time' within the meaning of s 41(2), under the McGarry principle (as applied by this court) the court makes a single sentencing decision. Consequently, the demonstration of material error in respect of one of the component individual sentences will trigger a discretion - and duty - to resentence in respect of all the counts. That will be so without any need to demonstrate that the sentence on each other count took into account the erroneous sentence.
Of course, s 41(2) has an independent operation when an offender is sentenced and then subsequently is further sentenced where the latter sentence took account of the first sentence.
In any event, the application of the broad principle in [99] above is well established by a consistent stream of authority in this court and no issue as to its correctness arises in this appeal. However, in contending that this court should resentence the appellant on all counts, the respondent did not invoke the McGarry principle separately from s 41(2). In those circumstances, if the appellant were in any way prejudiced by the court resentencing on all counts, I would not proceed to do so without hearing further from the appellant. Moreover, there is a question as to whether, the respondent not having separately invoked the McGarry principle as a basis for resentencing, this court should refrain from doing what it would appear to be obliged to do under the broad principle in [99] above, namely resentence on all counts. However, it is not necessary to hear further from the appellant, nor to decide that question, because, as explained below, if I were to resentence the appellant on the counts that do not fall within s 41(2), namely counts 1 and 3, I would sentence the appellant to the same sentence as was imposed by the sentencing judge.

Resentencing

Contrary to the appellant's submission, the sentence for count 1 falls within the principle outlined in [99] above because it formed part of the total effective sentence. Thus, application of the broad principle in [99] above would require this court to resentence on all counts.
In resentencing the appellant on count 1, I accept that, as the appellant submits, the conduct the subject of count 2 is not to be taken into account. While this court must exercise its discretion afresh, it must do so within the bounds of the case advanced by the prosecution at the sentencing hearing. Just as, in an appeal against conviction, the State is bound by the manner in which it put its case at trial,[39] so too in an appeal against sentence the State is bound by the manner in which it put its case at the sentencing hearing. As Mazza JA notes at [15] above, at the sentencing hearing the State did not allege that the sexual act the subject of count 2 was part of the conduct comprising count 1. Consequently, in my view, the conduct the subject of count 2 cannot be taken into account in evaluating the criminality of, and determining the appropriate sentence for, count 1.
[39] See, for example, Le-Ta v The State of Western Australia [2020] WASCA 14 [70].
As the sentencing judge explained, the appellant's offending the subject of count 1 had a number of serious elements. The appellant's offending involved an egregious breach of the position of trust occupied by the parent of a child. As the appellant's daughter, S was, as the sentencing judge observed, 'particularly vulnerable'. The offending was extremely prolonged, occurring over a period spanning five years. The appellant engaged in a series of pretexts to facilitate his carrying out of the various sexual acts. Further, as outlined in Mazza JA's reasons, the offending has had a profound adverse effect upon S.

I agree with Mazza JA's observations concerning count 2 at [84] and concerning count 4 at [86].
Like the sentencing judge, and Mazza JA, I would discount the sentence pursuant to s 9AA of the Sentencing Act by 20% on account of the pleas of guilty.
I would resentence the appellant as follows:
Count 1:5 years' imprisonment
Count 2:3 years' imprisonment
Count 3:4 months' imprisonment
Count 4:18 months' imprisonment, reduced to 11 months on totality grounds.
Reflecting my view that, taking into account the statutory requirement that count 2 be served concurrently, an appropriate total effective sentence is 6 years 3 months' imprisonment, I would order that the sentences on counts 3 and 4 be served cumulatively on the sentence for count 1, with the sentences for count 2 to be served concurrently with count 1.
The new total effective sentence should be taken to commence on 23 September 2020. I would order eligibility for parole.

Conclusion

I would make formal orders in the following terms:
(1)The appellant's application filed 26 October 2022 to adduce additional evidence in the appeal is granted.
(2)The appeal is allowed.
(3)The sentences imposed by Gillan DCJ on counts 2 and 4 are set aside.
(4)The appellant is resentenced on those counts as follows:
Count 2: 3 years' imprisonment.
Count 4: 11 months' imprisonment.
The sentence on count 2 is to be served concurrently with the sentence on count 1. The sentence on count 4 is to be served cumulatively upon the sentence on count 1 and the sentence on count 3.

For the avoidance of doubt, the effect of these orders, in combination with those of the sentencing judge's orders that have not been set aside, is that the appellant is sentenced to a new total effective sentence of 6 years 3 months' imprisonment. The sentence is taken to commence on 23 September 2020 and the appellant is eligible for parole.

VAUGHAN JA:

I have the considerable advantage of having read the separate reasons of Mazza JA and Beech JA.
I agree with Mazza JA and Beech JA that the appellant has made out his single ground of appeal. The sentence on count 2 was impermissibly ordered to be served cumulatively on the sentence on count 1. Count 1 concerned offending contrary to s 321A(4) of the Code between 26 November 2014 and 1 December 2019. Count 2 concerned offending contrary to s 320(2) of the Code on a date between 1 January 2016 and 1 October 2016 (ie in the period during which the offence under s 321A(4) was committed). The offence the subject of count 2 was a 'prescribed offence' for the purpose of s 321A (see Code s 321A(1)). Section 321A(13) of the Code has the effect that, where a person is sentenced to terms of imprisonment for an offence under s 321A(4) and a prescribed offence committed in the period during which the offence under s 321A(4) was committed, the court must not order the terms to be served cumulatively.
The appellant must be resentenced. There is, however, controversy between the parties as to the extent of the resentencing. It appears to be common ground that this court must resentence on count 2. The controversy is whether the court may resentence on the other counts. The State invokes s 41(2) of the Criminal Appeals Act 2004 (WA). It says that s 41(2) is enlivened with respect to the sentences imposed on the other counts - in particular with count 1. The appellant says that the power to resentence under s 41(2) does not arise on the other counts as the sentences on counts 1, 3 and 4 did not take into account the sentence on count 2.
Section 41 is headed '[s]entencing or re-sentencing on appeal'. Section 41(2) provides:

If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence:
(a)that was imposed at or after the time when sentence A was imposed; and
(b)that took into account sentence A.

The State submitted that the sole statutory source of this court's discretion to resentence an offender in a sentence appeal is found in s 41(2) of the Criminal Appeals Act.[40] I am unable to accept that submission given the terms of s 31(5) of the Act. Section 31(5) is reproduced in Mazza JA's reasons (see [65] above). It requires this court, where it would allow an appeal against a sentence imposed as a result of a conviction on indictment, to set aside the sentence. Section 31(5)(a) also empowers the court to instead impose a new sentence that is either more or less severe. Alternatively, the court may send the charge back to the court that imposed the sentence to be dealt with further (s 31(5)(b)).
[40] Respondent's supplementary submissions dated 30 August 2022 par 6.
Section 31(5)(a) and s 41(2) are concerned with different things and do different work. Section 31(5)(a) is concerned with resentencing in relation to a sentence that has been set aside because an appeal against that sentence has been allowed. Section 41(2) is concerned with resentencing in relation to other sentences where, under the Act, the court varies or sets aside a sentence - those other sentences may be varied where they meet the statutory conditions in s 41(2)(a) and (b). One of those conditions is that the other sentence 'took into account' the sentence that was varied or set aside (ie the 'sentence A' as defined in s 41(2)).
In relying on s 41(2) in this appeal the State urged a broad construction of the words 'took into account' in s 41(2)(b) of the Criminal Appeals Act. The State relied on the principle that this court has extracted from the decision of McGarry v The Queen.[41] That principle, as it has been developed and consistently applied in numerous decisions in this court, is summarised in terms that I agree with in the reasons of both Mazza JA (see [57] above) and Beech JA (see [99] above). I will refer to it as 'the McGarry principle'. The State contended that the words 'took into account' in s 41(2) have been broadly construed consistent with the McGarry principle such that the total effective sentence (including all the individual sentences) must be set aside and the offender resentenced afresh where this court finds that the primary court's sentencing discretion has miscarried in respect of one component of a sentence forming part of the total effective sentence.[42]
[41] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9].
[42] Respondent's supplementary submissions dated 30 August 2022 par 6.
I do not accept that the McGarry principle is some outworking of a broad construction of s 41(2) of the Criminal Appeals Act. So far as I can tell, having reviewed the authorities that recognise and apply the McGarry principle, none of them suggest that the principle is grounded in s 41(2). In applying the McGarry principle this court has not considered whether the other sentences 'took into account' the sentence varied or set aside. And McGarry itself was decided under an earlier statutory regime which did not incorporate a condition that the other sentences took into account the sentence varied or set aside on appeal.[43]
[43] McGarry v The Queen [8] - [9]. See also the former Criminal Code s 688(1a), s 689(3), s 693(1).
There was no challenge to the McGarry principle in this appeal. It was not necessary for the appellant to make such a challenge. The State's contention that the appellant should be resentenced on counts 1, 3 and 4 in addition to count 2 was grounded - and grounded solely - on the proposition that the power under s 41(2) of the Criminal Appeals Act was enlivened with respect to the other sentences the subject of counts 1, 3 and 4. In the circumstances I would not apply the McGarry principle. The appellant should not be resentenced on a basis that was not relied on by the State to justify a resentencing. Nor, given that the State relied exclusively on s 41(2), is it presently necessary to consider the statutory foothold for the McGarry principle in the Criminal Appeals Act.
There are few cases that have considered s 41(2). Victoria has a provision modelled on s 41(2).[44] Of that provision it has been said that the wording is 'very broad' and that a sentence may be taken into account 'in a number of ways'.[45] Otherwise it has been accepted that the power to vary other sentences under s 41(2) is discretionary.[46] The statutory purpose of s 41(2) was considered by Hall J (as his Honour was then) with whom Martin CJ and Mazza JA agreed in Wilson v The State of Western Australia:
[44] Criminal Procedure Act2009 (Vic) s 277(3).
[45] CMG v The Queen [2013] VSCA 243 [48].
[46] Wilson v The State of Western Australia [2014] WASCA 236 [68].
The explanatory memorandum to the Criminal Appeals Bill 2004 (WA) states that s 41 'addresses in part the recommendations made in the Murray Report in relation to s 689 and s 697 of the Criminal Code'. The relevant recommendation in the Murray Report (M J Murray QC, The Criminal Code a General Review 1983) related to the then s 689 of the Criminal Code. Section 689 was never amended however s 693 of the Criminal Code which was introduced in 1982 contained a similar power to that contained in s 41(2). The relevant part of the Murray Report states:
'In such cases commonly it is found that the aggregate sentence reflects what the court conceives to be a proper result for the totality of the offences. If one conviction is removed or one sentence altered it may well be that the aggregate picture is changed and that the Court of Criminal Appeal will feel that it is proper to adjust the other sentences to give effect of the intention of the sentencing court in relation to the proper disposition of the offences for which the convictions remain but in respect of which the sentences may now be seen to be passed on an artificial basis (Murray Report, page 463).'[47]
[47] Wilson v The State of Western Australia [68]. To similar effect see Spence v The State of Western Australia [2014] WASCA 171 [55] - [56].
While, as Hall J observed, s 693 of the Code contained a similar power to that in s 41(2) of the Criminal Appeals Act, there is one important difference between s 41(2) and the previous statutory regime. Section 693(1) of the Code did not condition the power to pass a sentence in substitution as thought proper on the other sentence being one that 'took into account' the sentence varied or set aside on allowing an appeal against sentence.
The phrase 'took into account' in s 41(2)(b) of the Criminal Appeals Act is not technical. The words bear their ordinary and natural meaning. A sentence (sentence X) will be one that 'took into account' another sentence (sentence A) where in imposing sentence X the sentencing court had regard to or gave consideration to sentence A. So understood the condition in s 41(2)(b) will invariably be satisfied where the outcome represented by sentence X was affected by sentence A; it may be, however, that sentence X took into account sentence A even if the sentencing outcome represented by sentence X was not affected by sentence A. The question whether sentence X took into account sentence A will be fact dependent. The answer will generally be self-evident by an analysis of the sentencing remarks and the sentencing outcome.
Both Mazza JA (see [74] - [77] above) and Beech JA (see [93] above) conclude that the sentence of 5 years' imprisonment the subject of count 1 did not take into account the sentence of 1 year imprisonment for count 2. I agree. Their Honours’ reasons on this point, which I gratefully adopt, explain why the sentence on count 1 did not take into account the sentence on count 2 for the purpose of s 41(2)(b). There is nothing I would add save to observe that the State, quite properly, accepted that the sentencing judge, when sentencing for count 1, did not include the conduct the subject of count 2.
By contrast, contrary to the appellant's submissions, I am satisfied that the sentence on count 4 took into account the sentence on count 2. On count 4, the offence of attempting to pervert the course of justice contrary to s 143 of the Code, the sentencing judge would have imposed a sentence of 18 months' imprisonment. The sentence was reduced to 8 months' imprisonment for totality reasons. It is apparent that the sentence on count 4 was reduced by the sentencing judge from what would otherwise have been appropriate having regard to the totality principle. The sentence on count 2 - and its contribution to a total effective sentence that was commensurate with the overall criminality of the appellant's offending - was thus a consideration in relation to the sentence on count 4.
The same cannot be said for count 3. Here there was no reduction for totality. Nor, in the sentencing remarks, is there anything to suggest that in imposing the sentence for count 3 her Honour had regard or consideration to the sentence imposed for count 2. To the contrary, the sentencing judge approached this aspect of the sentencing exercise on a basis that was separate and distinct from the other offending, noting that count 3 involved a different victim and thus the 4 month term of imprisonment should be wholly cumulative. I am not satisfied that the sentence on count 4 took into account the sentence on count 2.
It follows that I would resentence as to counts 2 and 4. It will also be necessary to consider questions of concurrency, cumulacy and totality so far as I would resentence on counts 2 and 4.
On count 2, I agree with the 3 year term of imprisonment as would be imposed by Mazza JA. I do so for the reasons that his Honour gives. Given the stipulation in s 321A(13) of the Criminal Code the term of imprisonment on count 2 must be served concurrently with the 5 year term of imprisonment the subject of count 1.
On count 4, before taking into account questions of concurrency, cumulacy and totality, I again agree with the sentence of 18 months' imprisonment that would be imposed by Mazza JA. Again I do so for the reasons given by his Honour. I agree that a degree of accumulation is necessary in relation to count 4. Additional punishment is required for offending of this type. However, it remains necessary that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to all the circumstances of the case including those referable to the appellant personally. To give effect to the totality principle I would reduce the sentence on count 4 to 11 months, to be served cumulatively on the existing sentences for counts 1 and 3, so as to provide for a total effective sentence of 6 years and 3 months' imprisonment.
It will be apparent that, while I would only resentence on counts 2 and 4, the total effective sentence I would impose is the same as that which Mazza JA and Beech JA would impose. In this respect, in considering the overall criminality of the appellant's offending as a whole, I agree with the observations made by Mazza JA as to the offending (including the offending the subject of counts 1 and 3) and the appellant's personal circumstances.
For completeness, I should also state that, like Mazza JA and Beech JA, I would also provide that the new total effective sentence is taken to have begun on 23 September 2020 and that the appellant remains eligible for parole.
The formal orders I would make to give effect to these reasons are the orders proposed by Beech JA at [126] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
6 APRIL 2023