Palmer v The State of Western Australia - [2024] WASCA 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PALMER -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 97
CORAM:   BUSS P
VAUGHAN JA
VANDONGEN JA

HEARD:   13 MAY 2024
DELIVERED          :   13 AUGUST 2024
FILE NO/S:   CACR 108 of 2023
BETWEEN:   STEPHEN FREDERICK PALMER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   IND 17 of 2022

Catchwords:

Criminal law - Appeal against sentence - Unlawful wounding in circumstances of aggravation - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 221(1)(d), s 301(1)(a)
Sentencing Act 1995 (WA), s 9AA
Weapons Act 1999 (WA)

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	N R Sinton
Respondent	:	R F Owen SC

Solicitors:

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

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

A v Doubikin [2019] WASC 426
Allen v The State of Western Australia [2017] WASCA 203
Black v The State of Western Australia (No 2) [2010] WASCA 145
Bradbury v The State of Western Australia [2020] WASCA 214
DBW (a child) v The State of Western Australia [2011] WASCA 206
Dunbar v The State of Western Australia [2020] WASCA 90
Eravelly v The State of Western Australia [2018] WASCA 139
Evans v Vanderheide [2001] WASCA 352; (2001) 126 A Crim R 239
Fernie v The State of Western Australia [2022] WASCA 20
Gatica‑Evans v Wear [2004] WASCA 25
Gomboc v The State of Western Australia [2023] WASCA 115
Harvey v The State of Western Australia [2005] WASCA 117
Hillier v Director of Public Prosecutions [2009] NSWCCA 312; (2009) 198 A Crim R 565
Hogermeer v The Queen (Unreported, WASCA, Library No 990108, 17 February 1999)
Hunter‑Aragu v The State of Western Australia [2015] WASCA 80
Hutton v The State of Western Australia [2022] WASCA 133
Jervis v The Queen [1993] 1 Qd R 643
Kabambi v The State of Western Australia [2019] WASCA 44
Lawrie v The State of Western Australia [2009] WASCA 45
Liu v State of Western Australia [2012] WASCA 218
MC (a child) v The Queen [2003] WASCA 205
Messaoui v The Queen (Unreported, WASCA, Library No 9210.1, 4 December 1991)
Moir v The State of Western Australia [2014] WASCA 25
Moran v The State of Western Australia [2011] WASCA 137
Morrison v Chiera [No 2] [2020] WASC 253
Peterson v The State of Western Australia [2019] WASCA 207
Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421
R v Barbis & Rouse [2003] WASCA 107
Scolaro v Shephard (No 2) [2010] WASC 271
Shaw v Mansell [2012] WASC 451
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Chungarai [2021] WASCA 147
The State of Western Australia v Gholizadeh [2024] WASCA 45
The State of Western Australia v Pereira [2023] WASCA 162
The State of Western Australia v Smith [2016] WASCA 153
Wijnen v The State of Western Australia [2024] WASCA 1
Williams v The State of Western Australia [2015] WASCA 110

BUSS P & VANDONGEN JA:

Introduction

On 24 December 2021, the appellant arranged to meet the victim at her home in Busselton. The pair had met a few months previously on an online dating website and had been regularly communicating with each other. The appellant stayed overnight at the victim's home, and they spent Christmas Day drinking alcohol together. During the night the appellant and the victim had discussed whether to engage in sexual activity. At some stage, the appellant lost his temper and used a large kitchen knife to cut the victim on her knee and on her shoulder, causing deep lacerations that required treatment in hospital.
On 21 August 2023, the appellant pleaded guilty in the District Court to two counts of aggravated unlawful wounding, contrary to s 301(1)(a) of the Criminal Code (WA).[1] On 31 August 2023, the appellant was sentenced to a total effective sentence of 6 years' immediate imprisonment.
[1] The offence was committed in 'circumstances of aggravation', under s 301(1)(a) of the Code, because the victim was over the age of 60 years at the time of the offence (see the definition of 'circumstances of aggravation' in s 221(1)(d) of the Code).
The appellant now appeals against that sentence, arguing that it infringes the first limb of the totality principle.
For the following reasons, we are of the view that the appellant should be granted leave to appeal, that the appeal should be allowed, and that the appellant should be resentenced to a total effective sentence of 4 years and 10 months' immediate imprisonment.

Factual basis for sentencing

The following summary is based on the sentencing judge's findings of fact.
The victim was 62 years old at the time of the offending. The appellant was 60 years old. They met online through a dating website, and after regularly exchanging messages over a period of about three months, the appellant and the victim decided to meet in person. On 24 December 2021, the appellant travelled to Busselton, and met the victim at her home address. When they met, the appellant and the victim agreed to take their relationship slowly. That night they slept together in the same bed, but no sexual activity occurred. At about mid‑morning on the following day, Christmas Day, they started drinking alcohol together, and they then kept drinking throughout the day and into the evening. They both became intoxicated.
At the sentencing hearing on 21 August 2023 the State alleged that at some point during the day, the appellant told the victim that he wanted to engage in sexual activity with her. However, the victim refused and told the appellant that she wanted him to sleep on the sofa bed in the lounge room. According to the State, it was at this point that the appellant went into the victim's kitchen and took a large knife from a knife block, before returning to the lounge area where the victim was standing. The appellant then used the knife to slash the victim on her right knee, and on her left shoulder. As a result, the victim suffered two deep lacerations and endured significant bleeding.
At some later stage, the appellant fell asleep on the couch. The victim went into her bedroom where she used sheets and towels to cover herself and attempted to stop the bleeding, before also falling asleep. Early the next morning, the victim went into the lounge room, and she woke the appellant. The appellant apologised to the victim and tried to give her a hug, but she refused. The appellant used his mobile telephone to call an ambulance, which arrived shortly afterwards and took the victim to hospital.
While she was in hospital, the victim told hospital staff what had happened, and they called the police. The police went to the victim's home later that morning and arrested the appellant. Later that day, the appellant participated in an interview with police during which he admitted stabbing the victim with a knife. However, the appellant also told police that he had no memory of the incident because he had blacked out for about 10 to 15 minutes from excessive alcohol consumption.
When setting out his findings of fact, the sentencing judge noted that the appellant's counsel had submitted that although the appellant admitted that he had stabbed the victim with a knife, he denied that he had done so because she had refused his requests to have sex with her. According to the appellant's counsel, it was the victim who wanted to engage in sexual activity with the appellant. Counsel further explained that the appellant was heavily intoxicated at the relevant time and that he suffered from erectile dysfunction as a result, and that this prompted the victim to make fun of him. His Honour was told that the appellant then reacted angrily, and that he picked up a knife and used it to stab the victim. The appellant's position was that he was drunk, and that he cut the victim because he was angry at the way she had treated him and because he was frustrated at being unable to engage in sexual activity. It was also submitted that the appellant did not arm himself with a knife in the victim's kitchen. The appellant's position was that the knife happened to be located close to where he had been sitting because he had used the knife earlier in the day to cut off the victim's clothing.
The sentencing judge did not accept the appellant's version of events. However, his Honour did not think that those factual issues needed to be resolved for the purposes of sentencing, concluding that on any version, the appellant's conduct was extremely serious.

The sentencing remarks

After setting out his findings of fact and noting that the maximum penalty for each offence was 7 years' imprisonment, the sentencing judge said that the seriousness of the appellant's criminal conduct was demonstrated by the fact that he twice stabbed or cut the victim with a large kitchen knife, causing deep lacerations to her right knee and to her left shoulder, which resulted in heavy bleeding. His Honour found that the offending was aggravated because the victim was 62 years of age, because she was vulnerable as she was affected by alcohol and physically smaller than the appellant, and because she was unable to effectively defend herself.
Although the victim's injuries were not life‑threatening, they interfered with her health and comfort. The victim spent six days in hospital and she suffered scarring. The injuries also affected the victim's mobility as they caused her to be unable to balance on unstable ground, including stairs and hills. The sentencing judge also found that the victim could only walk 15 to 20 metres without support, and that her daily physical activities were limited.
The appellant's assault on the victim left her extremely anxious and suffering from insomnia. She regularly suffered from panic attacks, felt unable to receive visitors to her home without fear and barely left her house after the attack. His Honour said that he had no doubt that the whole experience would have been terrifying and frightening.
By the time sentencing took place, the victim had been diagnosed with Alzheimer's dementia, and her cognition and executive function were seriously impaired. Although the sentencing judge accepted that some of the victim's feelings of distress and anxiety were possibly related to her diagnosis, he thought that it was self‑evident that she was likely to suffer ongoing anxiety and to experience concerns about her safety in her own home due to the offending.
While the sentencing judge accepted that the appellant had been under the influence of alcohol when he cut the victim, and that he did not plan to cut her, his Honour found that the appellant had acted out of anger and intended to cause serious injury to the victim. He also noted that the appellant cut the victim with a knife on two separate occasions, albeit during one incident which occurred relatively quickly. However, the sentencing judge observed that the appellant had taken advantage of the fact that the victim had allowed him into her home, where she was entitled to feel safe and secure.
The sentencing judge accepted that the appellant pleaded guilty at the first reasonable opportunity, and he afforded the appellant a discount of 25% on the sentences he would otherwise have imposed, in accordance with s 9AA of the Sentencing Act 1995 (WA). His Honour also took into account the fact that the appellant had apologised to the victim, that he had arranged for an ambulance to attend, and that he remained at her unit when she was taken to hospital, where he was arrested a short while later. Further, the sentencing judge noted that the appellant made some admissions in his record of interview with police.
In relation to the issue of remorse, the sentencing judge took into account the contents of a letter written by the appellant. Although the appellant had expressed some remorse in that letter, and he said that he had accepted full and total responsibility having had the opportunity to reflect on his actions, his Honour was not persuaded that the appellant had shown 'full remorse' for his offending. The sentencing judge also said that he had some reservations about how much insight the appellant had demonstrated and the extent to which the appellant had accepted responsibility for his offending.
In relation to the appellant's personal circumstances, the sentencing judge referred to the fact that the appellant had endured a dysfunctional upbringing that had negatively impacted on his behaviour throughout his life. It is unnecessary to traverse all his Honour's findings in that regard, other than to note that throughout his childhood, the appellant had been exposed to alcohol abuse and domestic violence, including violence that his father had directed at him. The appellant had been in and out of care because his mother was unable to care for him, and he was made a ward of the state. The appellant left school when he was about 14 years of age and then worked in various capacities in casual, physical labouring work. Thereafter, he lived an itinerant lifestyle, moving from state to state. The appellant abused alcohol and illicit drugs throughout his life and had been both a victim and a perpetrator of domestic violence.
The sentencing judge accepted that the appellant had suffered from significant disadvantages in his life while growing up, including a lack of any proper family structure, support or guidance. His Honour also accepted that the appellant had been exposed to negative influences in his life and that he had associated with people who engaged in antisocial and criminal behaviour. The sentencing judge concluded that the appellant's long history of drug and alcohol abuse and involvement in criminal behaviour were related to a lack of support and positive role models, as well as an inability to break out of the cycle of substance abuse and offending.
The appellant has suffered from poor physical health in recent years, suffering from two life‑threatening heart attacks in early 2021. However, the sentencing judge concluded that at the time of sentencing, the appellant's health conditions had stabilised, and he was 'physically reasonably well'. His Honour also noted that the appellant's health was likely to have been assisted by having abstained from alcohol while on remand.
The appellant has an extensive criminal record, having been convicted of many offences over an extended period of time, in Tasmania, New South Wales, Victoria, South Australia and Western Australia. The appellant has been convicted of various violent offences including assault, unlawful wounding, indecent assault, grievous bodily harm and armed robbery, as well as offences of dishonesty. The appellant has also spent periods of time in custody, having served sentences of imprisonment. The sentencing judge found that despite being sentenced to various and increasingly harsh terms of imprisonment, the appellant has not been deterred from continuing to offend, particularly in a violent way. His Honour concluded that the appellant had a propensity for violence and drunkenness.
The appellant's criminal record does show that apart from a conviction for an offence under the Weapons Act 1999 (WA) committed in October 2021, the last violence‑related offence committed by the appellant was an aggravated assault that took place in 2015. The sentencing judge accepted that the appellant had said that he wanted to break his pattern of violent offending and drunkenness, and that he had said that he understood that he cannot drink because it leads to him behaving in a violent manner. However, his Honour noted that the appellant will face challenges when he is released back into the community and encouraged him to meet those challenges head on.
The sentencing judge noted that he was required to consider the seriousness of the offending and to balance all the matters personal to the appellant against the need for personal and general deterrence. He also said that the offending was a form of domestic violence and, in effect, that it was important to get the message out that this kind of conduct will not be tolerated by the courts.
The sentencing judge then turned to consider the appropriate sentences to be imposed on the appellant. After first concluding that a term of immediate imprisonment was the only appropriate sentence and allowing a discount of 25% on account of the pleas of guilty in accordance with s 9AA of the Sentencing Act, his Honour imposed a sentence of 3 years and 6 months' immediate imprisonment for count 2, and a sentence of 4 years' immediate imprisonment for count 3.
The sentencing judge then correctly explained that he was required to ensure that the total sentence imposed was proportionate to the appellant's overall criminality having regard to the relevant circumstances, including those referable to him personally, and to ensure that the sentence is not crushing. Noting that the appellant's criminal acts occurred during one incident, the sentencing judge nevertheless concluded that as the appellant had made two separate decisions to cut the victim with the knife, there needed to be a degree of accumulation of the individual sentences imposed. On that basis, his Honour reduced the sentence he would otherwise have imposed for count 2 to 2 years' immediate imprisonment, and ordered that this sentence be served cumulatively upon the sentence imposed for count 3. This meant that the total effective sentence was 6 years' immediate imprisonment.
An order was made that the appellant be eligible to be considered for parole, and the total effective sentence was backdated to commence on 26 December 2021, to take into account the time the appellant had already spent in custody. The sentencing judge also made a violence restraining order protecting the victim.

Ground of appeal

The appellant relies on one ground of appeal, which is in the following terms:
The total effective sentence imposed infringes the first limb of the totality principle.
There is no challenge to either of the individual sentences that were imposed.

Relevant legal principles

As this court recently said in The State of Western Australia v Gholizadeh,[2] the general principles governing appeals in which it is argued that a total effective sentence infringed the first limb of the totality principle are well established, and are summarised in the often‑cited case of Kabambi v The State of Western Australia.[3] No useful purpose would be served by repeating those principles once again. It is enough to note that the first limb of the totality principle requires that when sentencing an offender who has committed multiple offences, a total effective sentence must be imposed that bears a proper relationship to the overall criminality involved in all the offences, having regard to all relevant facts and circumstances (including the offender's personal circumstances), all relevant sentencing factors and the total effective sentences imposed in comparable cases. However, where the length of a total effective sentence of imprisonment is challenged on the ground that it infringes the totality principle, it is important to bear firmly in mind that what is in fact asserted is that the length of the sentence is unreasonable or plainly unjust such that error should be inferred.[4]

The parties' submissions

[2] The State of Western Australia v Gholizadeh [2024] WASCA 45 [38].

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

[4] The State of Western Australia v Pereira [2023] WASCA 162 [43].

On behalf of the appellant, it is accepted that the sentencing judge had regard to the first limb of the totality principle. However, it is submitted that given the place that the overall offending occupies on the relevant scale of seriousness, and in light of the mitigating circumstances, including the appellant's pleas of guilty, a total effective sentence of 6 years' imprisonment is unreasonable or plainly unjust. In support of that contention, the appellant relies on The State of Western Australia v Chungarai[5] and The State of Western Australia v Smith.[6]
[5] The State of Western Australia v Chungarai [2021] WASCA 147.
[6] The State of Western Australia v Smith [2016] WASCA 153.

The respondent, on the other hand, accepts that the total effective sentence of 6 years' imprisonment is 'firm', but submits that the sentence fairly reflects the overall criminality of the appellant's conduct. The respondent argues that the total effective sentence fell within the proper exercise of the sentencing judge's discretion, acknowledging the seriousness of the offending, the impact on the victim, and the sentencing objectives of deterrence and public protection. In relation to the cases relied on by the appellant, the respondent submits that there is limited utility in carrying out comparisons with other cases. In particular, it is submitted that any differences between the sentence imposed on the appellant when compared to the sentences imposed in Chungarai and Smith are the inevitable consequences of the exercise of discretionary judgment in circumstances in which there is no one correct sentence and where mathematical equivalence is not to be expected.
Both parties acknowledged that they had not located any previously decided cases that might be described as truly comparable. In that regard, the respondent referred to the following observations that were made by Hall J, as his Honour then was, in DBW (a child) v The State of Western Australia:[7]
The sentences imposed for offences of this type vary significantly given the wide variety of circumstances in which the offence can be committed and the differing personal circumstances of those who commit such offences. Accordingly, when considering other cases of unlawful wounding, care must be taken to identify all of the relevant circumstances of those cases before drawing any conclusion as to whether the sentence at issue is manifestly excessive.
[7] DBW (a child) v The State of Western Australia [2011] WASCA 206 [22].
The respondent noted that in DBW (a child), Hall J also said that although there were difficulties in drawing comparisons with other cases, and that the cases did not establish a sentencing range for the offence of unlawful wounding,[8] some 'key factors are clearly emphasised', including: the seriousness of the injury inflicted; whether a weapon was used, and if so, whether such use was intentional; whether the wounding was unprovoked or whether it occurred in the course of a physical altercation in which both parties were involved; whether the offence was committed in a public place; and whether the offence is of a nature as to require the incorporation of personal and general deterrence.
[8] The cases referred to by Hall J in DBW (a child) include Scolaro v Shephard (No 2) [2010] WASC 271; Moran v The State of Western Australia [2011] WASCA 137; Black v The State of Western Australia (No 2) [2010] WASCA 145; Harvey v The State of Western Australia [2005] WASCA 117; MC (a child) v The Queen [2003] WASCA 205.
It is submitted that almost all those features, which increase the seriousness of this type of offending, were present in the circumstances of this case.

Merits of the appeal

The offences committed by the appellant were undoubtedly very serious. The appellant, who had been invited into the victim's home, used a large kitchen knife to carry out an entirely unjustified attack on a defenceless and vulnerable woman, which resulted in her suffering very significant wounds to her shoulder and to her knee. The photographs of those wounds that were taken after the victim was admitted to hospital graphically illustrate the extent to which she was wounded. The victim was hospitalised for six days, and she now has scars over both her shoulder and knee joints.
The appellant's use of a knife is a very serious aggravating factor. Knives are a necessary part of everyday life. However, knives are inherently dangerous, and that danger is all too often realised when knives find their way into the hands of someone who is angry and affected by alcohol. It is notorious that knives are often used in the heat of the moment with the potential for disastrous consequences, which may be immediately regretted, but which cannot be undone. The prevalence of the use of knives to inflict serious injury amply justifies a conclusion that general deterrence was a very important consideration in fixing an appropriate sentence.[9]
[9] Liu v State of Western Australia [2012] WASCA 218 [86]. See also Dunbar v The State of Western Australia [2020] WASCA 90 [76].
Based on the findings the sentencing judge was prepared to make, the appellant did not plan to commit the offences, but acted out of alcohol‑fuelled anger, and with an intention to cause serious injury to the victim. In our view, had the sentencing judge accepted the State's version of events, namely, that the appellant had picked up the knife from the victim's kitchen and cut her because he was angry that she had rebuffed his sexual advances, that would have increased the seriousness of the offending. However, his Honour was not prepared to make that finding, nor was he prepared to accept the appellant's explanation for his conduct. Unfortunately, this means that for the purposes of sentencing, the reason for the appellant's anger was left largely unexplained.
It is significant to note that the sentencing judge found that although the appellant twice stabbed or cut the victim, this occurred during one incident that occurred relatively quickly.
The victim allowed the appellant into her home, where she was entitled to feel safe, but the appellant's violence terrified and frightened her. Unsurprisingly, the sentencing judge found that the offending has had a profound and continuing adverse effect on the victim, and that she was likely to suffer ongoing anxiety and concerns about her safety in her own home.
Apart from the appellant's pleas of guilty, which attracted a discount of 25% on the sentences his Honour would otherwise have imposed pursuant to s 9AA of the Sentencing Act, there was little else in the appellant's favour by way of mitigation. As we have noted earlier in these reasons, the sentencing judge accepted that the appellant had apologised for what he had done, albeit that the apology was offered the following day. His Honour also accepted that the appellant arranged for an ambulance to attend when it became apparent that the victim was unable to do so for herself, and that he had showed some limited remorse. However, the sentencing judge expressed reservations about the extent to which the appellant had insight into, and accepted responsibility for, what he had done. Further, although the sentencing judge found that the appellant had made some admissions to police when he was interviewed, he also noted that the appellant had told some lies about the state of his memory of what had occurred.
As we have explained, the sentencing judge accepted that the appellant had suffered from a dysfunctional upbringing and family life, which had an adverse impact on his behaviour throughout his life. In that regard, his Honour found that he had abused alcohol throughout most of his life, a habit that he had learned from his parents, and that he had been a perpetrator of domestic violence when affected by alcohol. However, the sentencing judge also noted he was required to balance the appellant's unfortunate childhood, and other factors personal to the appellant, against the seriousness of the offence, the need to protect the community, and the need for personal and general deterrence.
The appellant had suffered from poor health. However, the sentencing judge found that at the time of sentencing the appellant had 'stabilised' his health condition and that he was 'physically reasonably well'.[10] There is no suggestion that the appellant's health was a mitigating factor of any great significance.
[10] ts 80.
The appellant has a lengthy criminal history. As the sentencing judge concluded, this did not aggravate his offending, but it demonstrated that the appellant has a propensity for violence and drunkenness, and that there was a need for personal deterrence.
The appropriate focus is on what the offender did, rather than on any label that might be attached to his offending. In that regard, what the appellant did was use a large knife to violently attack a defenceless woman in her own home, because he was angry, and because he was affected by alcohol. In those circumstances, any sentence imposed on the appellant required significant weight to be attributed to general deterrence because of the need to protect women from men who engage in alcohol charged violence, particularly violence involving the use of a knife. As the sentencing judge correctly said, a necessary consequence of the need to deter such potential offenders is that less weight is given to an offender's personal circumstances.
As Hall J observed in DBW (a child), the offence of unlawful wounding can be committed in a very wide range of circumstances, and by offenders who possess very different personal circumstances. In that context, it is understandable why it has been said that there is a significant variation in the sentences imposed for offences of unlawful wounding. Nevertheless, it has long been accepted that unlawful wounding is a serious offence.[11] No doubt this is because wounding requires that there be a break or cut of all layers of the skin,[12] and it is obvious that an injury of that nature may threaten the health and safety of a victim of such an offence. It is also understandable why, in those circumstances, Parliament has determined that the maximum penalty of 7 years' imprisonment is appropriate for an offence of unlawful wounding where, as in this case, the victim is of or over the age of 60 years.
[11] Messaoui v The Queen (Unreported, WASCA, Library No 9210.1, 4 December 1991), cited in DBW (a child) v The State of Western Australia [21] and Moran v The State of Western Australia [20].
[12] Jervis v The Queen [1993] 1 Qd R 643, 645 - 646 (McPherson ACJ).
As we have already said, the appellant relied on two cases in support of the contention that the total effective sentence of 6 years' imprisonment in this case was plainly unreasonable or unjust.
In Chungarai, the State relevantly appealed against a total effective sentence of 3 years and 6 months' immediate imprisonment on the basis that it infringed the first limb of the totality principle. The respondent in that case was convicted of unlawfully detaining a woman with whom he had been in a domestic relationship for some years, by tying her up twice, using an electrical cord. He was also convicted of threatening to kill the victim, while holding a broken bottle, and of aggravated assault occasioning bodily harm, constituted by a series of acts over a period of about five hours. Finally, the respondent was convicted of unlawfully wounding the victim in circumstances of aggravation, for using a piece of sharp wood to stab the victim once in the lower thigh of her right leg and once in her lower back. The offences took place over several hours, when the respondent was drunk and in breach of protective bail conditions, and several of the acts of violence took place in the presence of at least one young child. The victim spent two days in hospital being treated for her injuries. Apart from the respondent's pleas of guilty, there was limited mitigation. The respondent was sentenced to a term of 18 months' imprisonment for the offence of unlawful wounding, and this sentence was ordered to be served cumulatively on a sentence of 2 years' imprisonment imposed for the assault offence. Following a successful State appeal, the sentence for the offence of unlawful wounding was increased to 2 years and 3 months' immediate imprisonment, which was then ordered to be served cumulatively, forming part of a total effective sentence of 6 years' imprisonment.
The case of Smith was also a State appeal against sentence. In that case, the respondent was convicted of offences of aggravated wounding, aggravated grievous bodily harm, attempting to steal a motor vehicle, assaulting a public officer and obstructing a public officer. He was also convicted of and sentenced for several other offences. The respondent had been in a domestic relationship with one of the victims for about eight months at the time of the offences. Both had used drugs on the day of the offending. During an argument, the respondent threatened to hit the victim with a hammer and, when she turned her back to the respondent, he hit her with the hammer on the back of her head, exposing her skull and causing significant bleeding. This conduct was the subject of the unlawful wounding charge. As the victim tried to escape, the respondent attempted to hit her again and the hammer struck her hand, causing a fracture. When the victim ran to a neighbour's front yard and called for help, the respondent yelled abuse and waved the hammer at the victim from the neighbour's gate before walking back to their residence, where he smashed three windows on the victim's car. He then walked back to the neighbour's gate and continued yelling at the victim and waving the hammer in her direction. Later that night, police found the respondent walking along a road. As the officer approached him, the respondent attempted to steal the police car. As the respondent tried to drive away, one of the car doors struck a police officer on the arm. As police officers attempted to restrain him, the respondent produced a knife and then a hammer, which he used to hit a police dog on the head. The respondent also landed a second blow of the hammer onto an officer's arm. At the time of the offending, the appellant was subject to a suspended term of imprisonment.
The respondent was sentenced to a total effective sentence of 2 years and 2 months' imprisonment. He received a sentence of 6 months' imprisonment for the aggravated unlawful wounding conviction. After a successful State appeal, the appellant was resentenced to a total effective sentence of 4 years and 8 months' immediate imprisonment. For the offence of aggravated unlawful wounding, he was resentenced to 2 years' immediate imprisonment.
As both parties accepted, neither of these two cases could be described as truly comparable. The appellant seeks to submit that his argument that the total effective sentence of 6 years' imprisonment infringed the totality principle is supported by the fact that similar total effective sentences were imposed by this court in Chungarai and in Smith, even though the appellant's offending was considerably less serious than the offending in either of those cases. As this court recently said in Wijnen v The State of Western Australia,[13] it is usually difficult to draw a conclusion about the correctness of a sentence by drawing a comparison with the sentence imposed in a different and more serious case. Nevertheless, the total effective sentences that were imposed by this court in those cases, for much more serious overall offending, do tend to support the appellant's contention that the total effective sentence of 6 years' imprisonment imposed in this case was unreasonable or plainly unjust.
[13] Wijnen v The State of Western Australia [2024] WASCA 1 [42].
The respondent was not able to identify any other cases that might be described as truly comparable.
In Moran v The State of Western Australia, Hall J conducted a review of several previous cases in which sentences were imposed for the offence of unlawful wounding.[14] That review, the cases referred to by Hall J in DBW (a child),[15] and our consideration of the cases of Smith v The State of Western Australia;[16] Moir v The State of Western Australia;[17] and Gomboc v The State of Western Australia,[18] in which sentences for offences of aggravated unlawful wounding were the subject of appellate challenge, confirms that the offence of unlawful wounding (including when committed in circumstances of aggravation) can be committed in a wide range of circumstances, often in conjunction with other offences and by people with varying personal circumstances. It also reaffirms that there is no clearly established range of sentences for these types of offences.
[14] Moran v The State of Western Australia [23] - [28].
[15] The cases referred to by Hall J in DBW (a child) were Black v The State of Western Australia (No 2); Harvey v The State of Western Australia; and MC (a child) v The Queen.
[16] Smith v The State of Western Australia [2010] WASCA 176.
[17] Moir v The State of Western Australia [2014] WASCA 25.
[18] Gomboc v The State of Western Australia [2023] WASCA 115.
As we have already observed, the offences committed by the appellant were very serious. A large knife was used to deliberately inflict significant, although not life‑threatening, injuries on a 62‑year‑old woman while she was in her own home. The incident was frightening and has had long‑term, adverse consequences for the victim. There was very little mitigation other than the appellant's pleas of guilty, which were entered at the first reasonable opportunity and for which he received a 25% discount. The sentence that was imposed needed to operate as a deterrent to the appellant personally, having regard to his criminal history. Given the appellant's use of violence towards a woman, and his use of a knife, the sentence also needed to achieve the important objective of general deterrence.
The appellant has not challenged either of the individual sentences imposed on him. However, the sentence of 3 years 6 months' immediate imprisonment imposed for count 2 (before the sentence was reduced in the application of the totality principle) and the sentence of 4 years' immediate imprisonment for count 3, were high. Although, as we have said, no truly comparable cases have been identified, and it is well recognised that a consideration of the sentences imposed in other cases is only one of the factors to be considered by an appellate court in deciding whether an individual sentence is manifestly excessive, we have not been able to locate any case decided on appeal in which an individual sentence for an offence of unlawful wounding, including those committed in circumstances of aggravation, has exceeded 2 years' immediate imprisonment.[19] It is important to note, however, that in most of the cases to which we referred, the offence of unlawful wounding comprised only one offence in a series of other offences, and it is not always clear the extent to which the totality principle affected the sentences imposed.
[19] For cases that involve unlawful wounding in circumstances of aggravation, see Gomboc v The State of Western Australia; The State of Western Australia v Chungarai; The State of Western Australia v Smith; and Smith v The State of Western Australia. For cases that involve unlawful wounding not in circumstances of aggravation, see Bradbury v The State of Western Australia [2020] WASCA 214; Fernie v The State of Western Australia [2022] WASCA 20; DBW (a child); Eravelly v The State of Western Australia [2018] WASCA 139; Williams v The State of Western Australia [2015] WASCA 110; Hunter‑Aragu v The State of Western Australia [2015] WASCA 80; Moran v The State of Western Australia; Black v The State of Western Australia (No 2); Lawrie v The State of Western Australia [2009] WASCA 45; Harvey v The State of Western Australia; R v Barbis & Rouse [2003] WASCA 107; and Hogermeer v The Queen (Unreported, WASCA, Library No 990108, 17 February 1999). For cases that involve unlawful wounding which were dealt with summarily, see Gatica‑Evans v Wear [2004] WASCA 25; Evans v Vanderheide [2001] WASCA 352; (2001) 126 A Crim R 239; Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421; Scolaro v Shephard (No 2); Shaw v Mansell [2012] WASC 451; Morrison v Chiera [No 2] [2020] WASC 253; and A v Doubikin [2019] WASC 426.
As the appellant's counsel properly accepted at the hearing of the appeal, it was open to the sentencing judge to order that there be some accumulation of the sentences imposed for the two offences. This is because the appellant's conduct involved the use of a large kitchen knife to deliver two separate applications of force to the victim, which resulted in her suffering from two very bad injuries. However, in arriving at a total effective sentence, it was important to recognise that the appellant's conduct took place during one incident in which he cut the victim twice in quick succession.

Although the so called 'one transaction rule' is merely a rule of thumb, it can assist in arriving at a proper assessment of overall criminality where offences, such as the ones committed by the appellant, occur very close in time to each other.[20] In our opinion, having regard to all of the relevant circumstances, including the fact that the appellant's offending on count 2 and count 3 occurred within a very short period, during one incident, and the overall criminality of the offences committed by the appellant, the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle. In our view, the total effective sentence did not bear a proper relationship to the overall criminality of the appellant's offences to such an extent that it was unreasonable or plainly unjust.
[20] Hutton v The State of Western Australia [2022] WASCA 133 [62].
We would grant the appellant leave to appeal. We would also allow the appeal, set aside the sentences that were imposed and resentence the appellant.

Resentencing

It was not suggested that the court did not have all the material necessary to resentence in the event that the appeal was allowed, and the appellant did not seek to rely on any additional material.
Although the appellant did not challenge the individual sentences that were imposed, it is this court's duty to exercise the sentencing discretion afresh.[21] Accordingly, after taking into account:
(a)the maximum penalty for the offence of aggravated unlawful wounding;
(b)the circumstances of the offending, which are referred to earlier in these reasons;
(c)the place the offending occupies on the scale of seriousness;
(d)the appellant's pleas of guilty, which we accept were entered at the first reasonable opportunity and in respect of which we would also afford a discount of 25% in accordance with s 9AA of the Sentencing Act;
(e)the appellant's personal circumstances, as found by the sentencing judge; and
(f)all relevant sentencing factors,
we are of the view that the appropriate sentence for both count 2 and count 3 is 3 years' immediate imprisonment. When all relevant factors are considered, we do not think that there is any appreciable difference in the seriousness of the two offences.
[21] Peterson v The State of Western Australia [2019] WASCA 207 [58] (Buss P & Mazza JA).
We are also of the view that a total effective sentence of 4 years and 10 months' immediate imprisonment properly reflects the overall criminality of the appellant's criminal conduct viewed in all the circumstances and having regard to the appellant's personal circumstances. Accordingly, we would reduce the sentence on count 2 to one of 1 year and 10 months' imprisonment, and order that it be served cumulatively on the sentence on count 3.
Like the sentencing judge, we would order that the commencement of the sentence be backdated to 26 December 2021 and that the respondent be eligible for consideration for release on parole.
The sentencing judge also made an order that the appellant be subject to a violence restraining order. The appellant did not challenge that order. Accordingly, we would not interfere with that order.
During the hearing of the appeal, the court raised with counsel for the appellant a question about whether the rule against 'tinkering' presented as an obstacle to appellate intervention in this case. As neither counsel had the opportunity to develop considered submissions about that issue, or about the existence and content of any such rule (having particular regard to the provisions of the Criminal Appeals Act 2004 (WA) and to any relevant authorities), it would be inappropriate for us to state any concluded view. However, we note that in Allen v The State of Western Australia it was said that:[22]
The rule against appellate courts 'tinkering' with sentences is a corollary of the need for the sentence imposed to be unreasonable or plainly unjust before error of principle can be inferred from the result. It may also be regarded as a corollary of recognising that 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice' and that there is no single unique correct sentence. The absence of a substantial difference between the sentence which the appellate court regards as appropriate and the sentence imposed at first instance is inconsistent with a characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles).
[22] Allen v The State of Western Australia [2017] WASCA 203 [66] (footnotes omitted).
Further, in Hillier v Director of Public Prosecutions, Basten JA, with whom Johnson J agreed, said:[23]
Part of the discourse in this area of jurisprudence involves 'strong resistance… against appellate 'tinkering' with sentences'... However, that language has usually been adopted in cases which, like Dinsdale [v the Queen [2000] HCA 54; (2000) 202 CLR 321 [62]] itself, involved appeals by the Director of Public Prosecutions against the inadequacy of a sentence… On occasion, that language has also been adopted in relation to a challenge by an offender seeking to reduce his or her sentence…Whether it is appropriate in such cases may be doubted and should at least be justified, acting as it does, against the interests of liberty of the offender.

[23] Hillier v Director of Public Prosecutions [2009] NSWCCA 312; (2009) 198 A Crim R 565 [48] (citations omitted).

In any event, we are of the view that a reduction of 1 year and 2 months' imprisonment from the original total effective sentence of 6 years' imprisonment cannot properly be characterised as 'tinkering'. The original total effective sentence was outside the range of sentences properly open to the sentencing judge on a proper exercise of his discretion. This court is therefore bound to intervene and resentence the appellant.

Orders

We would make the following orders:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The sentences imposed on the appellant in respect of counts 2 and 3 on indictment BUS 17 of 2022 are set aside.
4.The appellant is resentenced as follows:
(a)Count 2: 1 year and 10 months' immediate imprisonment, to be served cumulatively on the sentence imposed for count 3.
(b)Count 3: 3 years' immediate imprisonment.
(c)The total effective sentence is backdated to commence on 26 December 2021.
(d)The appellant is eligible to be considered for release on parole.

VAUGHAN JA:

I have the considerable advantage of having read the joint reasons of Buss P and Vandongen JA. I agree with their Honours, for the reasons that their Honours give, that the single ground of appeal has been established. There should be leave to appeal and the appeal should be allowed. However, unlike Buss P and Vandongen JA, in resentencing the appellant I would not resentence on the individual counts given that they were not challenged as being manifestly excessive. Instead, conformably with the ground on which the appellant has succeeded, I would modify the mechanism by which the

sentencing judge achieved the total effective sentence so as to reduce the total effective sentence to the 4 years and 10 months' immediate imprisonment as provided for by Buss P and Vandongen JA. As this is a minority view I will not set out alternate orders to this effect. The orders of the court will be those proposed by Buss P and Vandongen JA.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Honourable Justice Vandongen
13 AUGUST 2024