Puntigam v The State of Western Australia - [2023] WASCA 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PUNTIGAM -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 46
CORAM:   BUSS P
MITCHELL JA
HALL JA

HEARD:   14 OCTOBER 2022
DELIVERED          :   29 MARCH 2023
FILE NO/S:   CACR 77 of 2021
CACR 78 of 2021

BETWEEN: KELLIE JOANNE PUNTIGAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 136 of 2021
CACR 137 of 2021

BETWEEN: FRENK BACICH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MacLEAN DCJ
File Number            :   IND 1952 of 2019

Catchwords:

Criminal law - Conviction appeal - Where appellants jointly charged with robbery and burglary - Where prosecution case relied on s 8 of Criminal Code (WA) - Where alleged unlawful common purpose on count 1 was to steal with threats of violence - Whether s 8 requires that offence committed be different from unlawful common purpose - Where there was a material difference in this case in that the robbery offence committed involved actual violence rather than merely threats of violence - Where one appellant did all relevant acts for the burglary - Whether s 8 could be relied on in respect of that appellant - Whether any error was material - Whether there was no substantial miscarriage of justice

Criminal law - Conviction appeal - Whether trial judge erred by admitting evidence regarding possession of replica gun by one appellant - Whether error was material - Whether directions of trial judge removed any possible prejudice

Criminal law - Conviction appeal - Whether appellants had consent or implied consent to enter premises - Whether trial judge erred in his directions on consent

Criminal law - Sentence appeal - Whether sentencing judge erred in making findings, or failing to make findings, of fact - Whether total effective sentences imposed on appellants breached first limb of totality principle.

Legislation:

Criminal Code (WA), s 7, s 8

Result:

Appeals dismissed

Category: A

Representation:

CACR 77 of 2021

CACR 78 of 2021

Counsel:

Appellant	:	Mr S F Rafferty
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Seamus Rafferty & Associates
Respondent	:	Director of Public Prosecutions (WA)

CACR 136 of 2021

CACR 137 of 2021

Counsel:

Appellant	:	Mr A G Elliott
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Jiang Law
Respondent	:	Director of Public Prosecutions (WA)

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Baynah v The State of Western Australia [No 2] [2019] WASCA 103
Beekman v The State of Western Australia State of WA [2022] WASCA 130
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Bradbury v The State of Western Australia [2020] WASCA 14
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Brown v The State (Trinidad and Tobago) [2003] All ER (D) 304
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
DKA v The State of Western Australia [2019] WASCA 123
Edwards v The Queen [2021] HCA 28
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540
Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108
Kabambi v The State of Western Australia [2019] WASCA 44
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Kaporonovski v The Queen (1973) 133 CLR 209
Kelly v The State of Western Australia [2020] WASCA 29
Kitto v The State of Western Australia [2019] WASCA 123
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Mamkin v The State of Western Australia [2017] WASCA 61
Martincic v The State of Western Australia [2019] WASCA 134
O'Dea v Western Australia [2022] HCA 24; (2022) 403 ALR 200
Pickett v Western Australia [2020] HCA 20; (2020) 270 CLR 323
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v KAR [2018] QCA 211; [2019] 2 Qd R 370
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Ritchie [1998] QCA 188
R v Solomon [1959] Qd R 123
R v Wyles; Ex parte Attorney General [1977] Qd R 169
Rankins v The State of Western Australia [2018] WASCA 138
Ruthsalz v The State of Western Australia [2018] WASCA 178
Schischka v The State of Western Australia [2015] WASCA 15
Shaw v State of Tasmania [2022] TASCCA 2
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The State of Western Australia v Krakouer [2022] WASCA 118
Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wellstead v The State of Western Australia [2019] WASCA 130

Table of Contents

Buss P

Ms Puntigam's conviction appeal: the ground of appeal

Ms Puntigam's conviction appeal: the ground of appeal: the trial judge's directions

Ms Puntigam's conviction appeal: the ground of appeal: Ms Puntigam's written submissions

Ms Puntigam's conviction appeal: the ground of appeal: counsel for Ms Puntigam's oral submissions

Ms Puntigam's conviction appeal: the ground of appeal: the State's written submissions

Ms Puntigam's conviction appeal: the ground of appeal: counsel for the State's oral submissions

Ms Puntigam's conviction appeal: the ground of appeal: relevant principles in relation to s 8(1)

Mitchell & Hall JJA

Summary of the grounds

The prosecution case

The defence case

Relevant evidence

Adrian Higgins

Alexander Leather

Defence evidence

Puntigam conviction appeal - ground

Puntigam conviction appeal - trial judge's directions

Puntigam conviction appeal - appellant's submissions

Puntigam conviction appeal - the operation of s 8

Puntigam conviction appeal - the significance of Keenan and L v The State of Western Australia

Puntigam conviction appeal - O'Dea and Shaw

Puntigam conviction appeal - s 8 and circumstances of aggravation

Puntigam conviction appeal - the merits

Scope of s 8 of the Code

Application of s 8 in relation to count 1

Application of s 8 in relation to count 2

Bacich conviction appeal - grounds

Bacich conviction appeal - ground 1 - evidence and rulings

Bacich conviction appeal - ground 1 - trial judge's directions

Bacich conviction appeal - ground 1 - appellant's submissions

Bacich conviction appeal - ground 1 - respondent's submissions

Bacich conviction appeal - ground 1 - relevant law

Bacich conviction appeal - ground 1 - the merits

Bacich conviction appeal - ground 2 - trial judge's directions

Bacich conviction appeal - ground 2 - appellant's submissions

Bacich conviction appeal - ground 2 - relevant law

Bacich conviction appeal - ground 2 - the merits

Puntigam sentence appeal - ground

Puntigam sentence appeal - judge's sentencing remarks

Puntigam sentence appeal - relevant law

Puntigam sentence appeal - submissions

Puntigam sentence appeal - the merits

Bacich sentence appeal - grounds

Bacich sentence appeal - judge's sentencing remarks

Bacich sentence appeal - grounds 1 to 3 - submissions

Bacich sentence appeal - grounds 1 to 3 - the merits

Bacich sentence appeal ‑ ground 4 ‑ relevant law

Bacich sentence appeal - ground 4 - submissions

Bacich sentence appeal - ground 4 - the merits

Bacich sentence appeal - application to adduce additional evidence

Conclusion

CACR 77 of 2021 (Puntigam Conviction Appeal)

CACR 78 of 2021 (Puntigam Sentence Appeal)

CACR 136 of 2021 (Bacich Conviction Appeal)

CACR 137 of 2021 (Bacich Sentence Appeal)

BUSS P:

The appellant in CACR 77 & 78 of 2021 (Ms Puntigam) and the appellant in CACR 136 & 137 of 2021 (Mr Bacich) appeal against conviction and sentence.
Ms Puntigam and Mr Bacich were jointly charged on indictment with three counts.
Count 1 alleged that on 15 October 2018, at Baldivis, the appellants stole from Adrian Higgins, with violence, a wallet, the property of Mr Higgins, contrary to s 392 of the Criminal Code (WA) (the Code). The count also pleaded, as circumstances of aggravation, that the appellants were in company with each other and that the appellants did bodily harm to Mr Higgins.
Count 2 alleged that on 16 October 2018, at Hillman, the appellants, while in the place of Alexander Leather without his consent, committed the offence of assault, contrary to s 401(2)(a) of the Code. The count also pleaded, as circumstances of aggravation, that the appellants were armed with an offensive weapon, namely capsicum spray; that the appellants were armed with an offensive instrument, namely a wooden pole; that the appellants were in company with each other; that immediately before the commission of the offence the appellants knew or ought to have known that there was another person in the place; and that the place was ordinarily used for human habitation.
Count 3 alleged that on 16 October 2018, at Hillman, the appellants unlawfully and with intent to injure or annoy Mr Leather, caused a noxious thing, namely capsicum spray, to be administered to Mr Leather, contrary to s 301(1) of the Code.
After a joint trial before MacLean DCJ and a jury, the appellants were convicted of counts 1, 2 and 3. Also, all of the pleaded circumstances of aggravation were found to have been proven against them.
The trial judge sentenced Ms Puntigam to a total effective sentence of 5 years 6 months' imprisonment with eligibility for parole. His Honour sentenced Mr Bacich to a total effective sentence of 6 years' imprisonment with eligibility for parole.
Ms Puntigam relies, in her conviction appeal, upon one ground of appeal. The ground alleges, in essence, that the trial judge erred in law when directing the jury that s 8(1) of the Code was a basis for criminal liability on counts 1 and 2.
Mr Bacich relies, in his conviction appeal, upon two grounds. Ground 1 alleges, in essence, that the trial judge erred in law by admitting irrelevant evidence concerning Ms Puntigam's possession of a replica firearm in circumstances where the admission of that evidence created unfair prejudice to Mr Bacich. Ground 2 (as explained by counsel for Mr Bacich at the hearing of the appeals) alleges, in essence, that his Honour failed adequately to direct the jury, in the context of counts 2 and 3, on the issue of implied consent to enter or be in the place of Mr Leather.
Ms Puntigam relies, in her sentence appeal, upon one ground. The ground alleges, in essence, that her total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle.
Mr Bacich relies, in his sentence appeal, upon four grounds. Ground 1 alleges, in essence, that the trial judge erred in making findings of fact that the aggravated burglary charged in count 2 was planned and that the planning included the use of violence. Ground 2 alleges, in essence, that his Honour erred by failing to make adequate or specific findings as to the basis of Mr Bacich's criminal liability in respect of counts 2 and 3. Ground 3 alleges, in essence, that in making findings for the purposes of sentencing on counts 2 and 3, his Honour erred in not making specific findings as to a number of matters which were significant in assessing Mr Bacich's culpability for the offending. Ground 4 alleges, in essence, that Mr Bacich's total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.
I agree with Mitchell and Hall JJA that, in relation to Ms Puntigam's conviction appeal, leave to appeal should be granted but the appeal should be dismissed. I will state my own reasons for arriving at those conclusions.
I agree with Mitchell and Hall JJA, for the reasons they give, that, in relation to Ms Puntigam's sentence appeal, leave to appeal should be refused and the appeal dismissed.
I agree with Mitchell and Hall JJA, for the reasons they give, that the orders proposed by their Honours in relation to Mr Bacich's conviction appeal and his sentence appeal should be made.

Ms Puntigam's conviction appeal: the ground of appeal

As I have mentioned, the ground of appeal in Ms Puntigam's conviction appeal alleges, in essence, that the trial judge erred in law when directing the jury that s 8(1) of the Code was a basis for criminal liability on counts 1 and 2.

Ms Puntigam's conviction appeal: the ground of appeal: the trial judge's directions

As to count 1, the trial judge directed the jury on the basis of s 8(1) of the Code, relevantly, as follows (ts 338 ‑ 339):
To prove that an accused is guilty of an offence as a person who had a common intention to prosecute an unlawful purpose, the State must prove three matters beyond reasonable doubt. Firstly, there must be a common intention to prosecute an unlawful purpose, secondly, that the offence was committed in the prosecution of that unlawful purpose. Thirdly, that the offence which was committed was a probable consequence of the prosecution of that common unlawful purpose.
To prove a common purpose, the State does not have to lead evidence of an express agreement. The State's case on the three matters that it must prove beyond reasonable doubt to prove that the accused is guilty of the offence as a person who had a common intention to prosecute an unlawful purpose is as follows.
Firstly, that the accused had a common intention to prosecute an unlawful purpose. And with regard to the first count on the indictment, the unlawful purpose was as the State opened on that there was a degree of planning between Mr Bacich and Ms Puntigam and that Mr Bacich was hidden in the back of the car and that that was a matter that did not … surprise Ms Puntigam at all.
And the State says that you could infer that they had a plan to lure Mr Higgins into the car, hiding Mr Bacich's presence from him so that Mr Bacich would be in a position to put pressure on Mr Higgins to threaten him, to intimidate him, to steal from him.
The second matter that the State must prove beyond reasonable doubt is that while they were prosecuting that common purpose the offence of robbery with violence was committed and that is the assault that was committed upon Mr Higgins.
The third is that the probable consequence was that the violence would be used and used to relieve Mr Higgins of his wallet and it's for those reasons that the State relies upon the conduct of Mr Bacich to ascribe responsibility to Ms Puntigam for what took place in the motor vehicle although it is no part of the State's case that it was Ms Puntigam who applied any physical contact to Mr Higgins.
But the State asserts that Ms Puntigam is criminally responsible for the aggravated robbery charge because in the circumstances in which those events took place that it was a probable consequence, that is the use of violence by Mr Bacich to Mr Higgins, and by reason of that Ms Puntigam is criminally responsible also for the aggravated robbery charge although there's an obvious difference between the two roles that each of Ms Puntigam and Mr Bacich performed on the State case.
As to count 2, his Honour directed the jury on the basis of s 8(1) of the Code, relevantly, as follows (ts 339 ‑ 340):
[T]he State's case - and again a matter that they must prove beyond reasonable doubt in order to prove that the accused are guilty of the offence as actors or people who had a common intention is that the accused had a common intention to prosecute an unlawful purpose and the unlawful purpose in count 2 is to confront Mr Leather, that is they had a common intention to enter his house without permission and to confront him.
The State must prove that common intention beyond reasonable doubt but they must also prove beyond reasonable doubt that while they were prosecuting that common purpose that an offence of assault was committed and the offence of assault that the State rely upon insofar as count 2 goes is the application of pepper spray which the State says constitutes an assault and which I'll explain in more detail when I come to explain the elements of the offence.
The third aspect that the State must prove beyond reasonable doubt is that the offence of assault was a probable consequence of the prosecution of that unlawful purpose namely to enter Mr Leather's home without his consent and to confront him …
And that secondly, while they were prosecuting that common purpose that the offence of administering capsicum spray was committed and that the offence of applying the capsicum spray was a probable consequence of that unlawful purpose, that is to enter the house and to confront Mr Leather.
So when I speak to you about the accused having a common intention to prosecute an unlawful purpose I mean that in the sense that I have just explained to you, namely that there must have been a common intention to prosecute an unlawful purpose, that while prosecuting that common purpose an offence was committed. Thirdly, that the offence was a probable consequence of the unlawful purpose.
If the State has not satisfied you beyond reasonable doubt of any one of those matters then the State would not have established that the accused were guilty on that additional extended basis, that is, the extended basis of a common intention to prosecute an unlawful purpose.
Shortly afterwards, the trial judge directed the jury on the basis of s 7 of the Code, in relation to counts 2 and 3, relevantly, as follows (ts 340 ‑ 341):
As to counts 2 and 3, the State assert that each of Ms Puntigam and Mr Bacich are criminally responsible, on the basis that Ms Puntigam was the principal offender. She was the person who entered the home and applied the capsicum spray to Mr Leather.
The State also assert that Mr Bacich was responsible with her, because he also entered the home but, additionally, he was there to aid her by way of emboldening her to commit the offences.
So while he did not physically apply the pepper spray himself to Mr Leather, he is also responsible as a party to that, because on the State case he had actual knowledge of the facts, the facts on the State case being an intent to go to Mr Leather's house, to go into the house, and to assault him, and that he gave help, support, assistance and encouragement to that offence, by presenting at the property, by walking towards the property with Ms Puntigam, by effecting entry, or knocking, kicking at the door, and by assisting her to gain entry, and that he intended to give encouragement, help, support and assistance to her in the commission of that offence, namely to enter the property and to assault Mr Leather.
His Honour then directed the jury on the basis of s 8(1) of the Code, in relation to count 2, relevantly, as follows (ts 341):
And as an alternative, the State say that each are responsible for count 2, by reason of the prosecution of the unlawful purpose, the unlawful purpose in the alternative being to at least go into the home and to confront Mr Leather, and that the assault, that is the assault with the capsicum spray, was a probable consequence to the prosecution of that unlawful purpose.

Ms Puntigam's conviction appeal: the ground of appeal: Ms Puntigam's written submissions

The substance of Ms Puntigam's written submissions was as follows.
As to count 1, Ms Puntigam submitted that, for s 8(1) to apply, the unlawful purpose must be a purpose other than the offence ultimately committed. It was contended that the trial judge's directions in respect of count 1 were erroneous in that the alleged unlawful purpose was the same as the offence that was alleged to have been ultimately committed, namely the offence of robbery.
As to count 2, Ms Puntigam submitted that his Honour misdirected the jury in relation to s 8(1), as a basis for criminal liability on count 2, because the alleged unlawful purpose, as articulated by his Honour, was not unlawful. In particular, it was contended that the alleged unlawful purpose was to 'break in and confront [Mr Leather]' and confronting a person is not unlawful.

Ms Puntigam's conviction appeal: the ground of appeal: counsel for Ms Puntigam's oral submissions

The substance of counsel for Ms Puntigam's oral submissions in relation to the proper construction and application of s 8(1) was as follows.
After Ms Puntigam filed her written submissions and before the hearing of the appeals, the Court of Criminal Appeal of Tasmania delivered judgment in Shaw v State of Tasmania,[1] and the High Court delivered judgment in O'Dea v Western Australia.[2]
[1] Shaw v State of Tasmania [2022] TASCCA 2.
[2] O'Dea v Western Australia [2022] HCA 24; (2022) 403 ALR 200.
Counsel for Ms Puntigam submitted in effect:
(a)The proper construction and application of s 8(1) of the Code was explained by Kiefel J (Hayne J relevantly agreeing and Heydon & Crennan JJ agreeing) in R v Keenan.[3]
(b)In particular, Kiefel J explained in Keenan [102] that the purpose of s 8(1) is to extend the criminal responsibility of parties to a common purpose to an offence other than that to which the common purpose was specifically directed.
(c)In O'Dea, the appellant and his co‑accused, Mr Webb, were jointly charged on a count which alleged that each of them, with intent to maim, disfigure, disable or do some grievous bodily harm to the victim, unlawfully did grievous bodily harm to the victim, contrary to s 294(1) of the Code. After a joint trial, the jury returned a verdict of guilty in respect of the appellant but was unable to agree upon a verdict in respect of Mr Webb. The appellant appealed against his conviction. At the trial the State relied upon s 7(a) and s 7(c) of the Code. The State did not rely upon s 8(1). The majority (comprising Gordon, Edelman & Steward JJ) commented that s 8(1) operates in circumstances where 'A B and C form a plan to burgle a house, in pursuance of which A breaks into the house but does not enter, B takes no part in the breaking but enters and steals, and C keeps watch in the street outside' [74]. The majority also observed that it was remarkable that the State made no attempt at the trial to allege that, at any point during the assaults on the victim, '[the appellant] and Mr Webb tacitly formed an unlawful common purpose of doing grievous bodily harm to [the victim], which extended beyond a reasonable response to the circumstances that they believed to exist' [79].
(d)The comments and observations of the majority in O'Dea in relation to s 8(1) are relevantly inconsistent with Kiefel J's explanation in Keenan [102] of the purpose of s 8(1).
(e)In Shaw, the majority (comprising Blow CJ, Wood, Pearce & Brett JJ) construed s 4 of the Criminal Code (Tas), which is relevantly identical to s 8(1) of the Code. The majority concluded that s 4 is capable of application to offences that are within the scope of the common unlawful purpose [87]. Their Honours said that Kiefel J's statement in Keenan [102] concerning the purpose of s 8(1) was intended 'to describe the extended nature of the outer limits of its application, rather than to imply any limitation in that regard' [90].
(f)The manner in which the majority in Shaw sought to explain Kiefel J's statement as to the purpose of s 8(1) is erroneous.
[3] R v Keenan [2009] HCA 1; (2009) 236 CLR 397.

Ms Puntigam's conviction appeal: the ground of appeal: the State's written submissions

As to count 1, the State accepted in its written submissions that it has been observed by Kiefel J (Hayne J relevantly agreeing and Heydon & Crennan JJ agreeing), in Keenan [102], and by this court, in L v The State of Western Australia,[4] that the purpose of s 8(1) is to extend the criminal responsibility of parties to a common purpose to an offence other than that to which the common purpose was specifically directed. However, counsel submitted that those observations do not necessitate 'a post facto characterisation of an unlawful purpose as being a particular type of offence before [s 8(1)] can apply'.
[4] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [40] (Martin CJ, Mazza JA & Mitchell J).
It was submitted that the unlawful purpose put to the jury in relation to count 1 was to threaten, intimidate and steal from Mr Higgins, in the absence of actual violence. The offence that was ultimately committed was aggravated robbery, the circumstances of aggravation including actual violence which resulted in bodily harm to Mr Higgins. That offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
As to count 2, the State submitted in its written submissions that the appellant's submissions failed to recognise that part of the alleged unlawful purpose, as articulated by the trial judge, was unlawful in that the unlawful purpose involved Ms Puntigam and Mr Bacich entering Mr Leather's place without consent.
However, the State accepted that there was merit in the broader point raised by the ground of appeal, namely that s 8(1) should not have been left to the jury, in relation to Ms Puntigam's alleged criminal responsibility for counts 2 and 3, notwithstanding that the broader point was not dealt with in counsel for the appellant's submissions.
It was submitted that s 8(1) should not have been left to the jury, so far as Ms Puntigam was concerned, in relation to counts 2 and 3 because:
(a)section 8(1) is a deeming provision;
(b)the liability of any person under s 8(1) is 'necessarily secondary';
(c)section 8(1) deems 'the secondary party to have done the act or [made the] omission that renders the principal liable to punishment only insofar as the doing of an act of that nature or [the making of an] omission of that nature was a probable consequence of prosecuting their common unlawful purpose' (original emphasis);
(d)for a jury to find a person guilty upon the application of s 8(1), the jury must be satisfied beyond reasonable doubt that 'there was a principal offender who committed the relevant "offence" spoken of in that section';
(e)the assault the subject of count 2 was the act of capsicum spraying; it was never in dispute at the trial that Ms Puntigam capsicum sprayed Mr Leather; there was never any suggestion at the trial that Mr Bacich had administered the capsicum spray; and the same act of capsicum spraying was the conduct element for count 3;
(f)accordingly, Ms Puntigam's liability for counts 2 and 3 'could logically only ever be as the "principal" offender under s 7(a) … (which was relied upon by the State and directed on by [his Honour])';
(g)there cannot be 'liability under s 8(1) without there first being a s 7(a) principal';
(h)there was no question at the trial 'as to who the principal was and who the secondary party was'; and
(i)accordingly, the State conceded that s 8(1) should not have been left to the jury, so far as Ms Puntigam was concerned, in relation to counts 2 and 3.
The State submitted that, although the trial judge misdirected the jury on s 8(1), so far as Ms Puntigam was concerned, in relation to counts 2 and 3, no miscarriage of justice had occurred. Any pathway to guilt under s 8(1) was 'entirely subsumed by the jury first finding [Ms Puntigam] guilty under s 7(a), which was an entirely proper and open course for the jury to follow'. Alternatively, no substantial miscarriage of justice had actually occurred. It was impossible for the jury to have determined that Ms Puntigam was not guilty under s 7(a), but to have then gone on to determine beyond reasonable doubt that she was guilty under s 8(1). It was submitted, having regard to the trial record and making proper allowance for the natural limitations that exist where an appellate court proceeds wholly or substantially on the record, that the appellant was proved beyond reasonable doubt to be guilty of counts 2 and 3 under s 7(a) of the Code. In any event, it was submitted that this court can exclude beyond reasonable doubt the possibility that Ms Puntigam has been denied a chance of acquittal on counts 2 and 3 which was fairly open to her.

Ms Puntigam's conviction appeal: the ground of appeal: counsel for the State's oral submissions

The State's written submissions did not address the judgment of the Court of Criminal Appeal of Tasmania in Shaw. After the State filed its written submissions and before the hearing of the appeals, the High Court delivered judgment in O'Dea.
The substance of counsel for the State's oral submissions in relation to the proper construction and application of s 8(1) was, relevantly, as follows:
(a)The majority in Shaw explained correctly Kiefel J's statement in Keenan [102] as to the purpose of s 8(1).
(b)The construction of s 4 of the Tasmanian Code by the majority in Shaw is correct and should be applied in relation to s 8(1) of the Code.
(c)The construction of s 8(1) of the Code by Gordon, Edelman and Steward JJ in O'Dea to the effect that the common unlawful purpose may be synonymous with the offence actually committed must be followed.

Ms Puntigam's conviction appeal: the ground of appeal: relevant principles in relation to s 8(1)

Section 8 of the Code provides:
8.Offence committed in prosecution of common purpose
(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2)A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -
(a)withdrew from the prosecution of the unlawful purpose; and
(b)by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c)having so withdrawn, took all reasonable steps to prevent the commission of the offence.
Section 8(1) of the Code is identical to s 10 of Sir Samuel Griffith's draft Criminal Code which Sir Samuel sent to the Attorney‑General of Queensland with a letter dated 29 October 1897. Sir Samuel's notes in his draft Criminal Code stated in relation to s 10 that the provision reflected the common law and corresponded with s 72 of the Criminal Code Bill 1880 (UK).
However, as Gleeson CJ, Gummow, Heydon and Crennan JJ pointed out in Darkan v The Queen,[5] s 10 of Sir Samuel Griffith's draft Criminal Code did not correspond with the common law as it is now understood to be (although s 10 did bear some resemblance to statements of the common law made at the time) and s 10 did not correspond with s 72 of the Criminal Code Bill 1880.
[5] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [38].
Section 8(1) has never been amended. It comprised s 8 when the Code was established by the Criminal Code Act 1902 (WA) (the 1902 Act) and when the Criminal Code Act Compilation Act 1913 (WA) (the 1913 Compilation Act) repealed the 1902 Act as amended and enacted the compiled Act set forth in Appendix B to the 1913 Compilation Act under the title of the Criminal Code Act 1913 (WA).
Section 8(2) of the Code was enacted by the Criminal Law Amendment Act 1986 (WA).
In Brennan v The King,[6] the applicant and two other people were charged with wilful murder. The two other people broke into a jeweller's shop and stole jewellery. They killed the caretaker of the shop in the course of breaking into the shop and stealing the jewellery. The applicant remained on watch outside the shop. The applicant was convicted of manslaughter. The High Court set aside the applicant's conviction on the ground of a misdirection by the trial judge and ordered a new trial on that charge. The proper construction and application of s 7 and s 8 of the Code were in issue.
[6] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253.
Dixon and Evatt JJ observed in relation to s 8 (263):
The section appears to be based in some respects upon the often cited statement of Sir Michael Foster in reference to accessories before the fact, viz: 'So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be accessory to that felony' (Foster, Crown Law (1809), p 370; Halsbury's Laws of England, 2nd ed, vol 9, p 36). But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.
Their Honours then explained (263 ‑ 264):
The expression 'offence … of such a nature that its commission was a probable consequence of the prosecution of such purpose' fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose.
Dixon and Evatt JJ said that, to establish under s 8 that the applicant was guilty of manslaughter, 'it must appear that among the probable consequences of prosecuting the unlawful purpose upon which the prisoners had resolved was the death of the caretaker, or of a person chancing to be in their way' (264). Their Honours expressed the view that the caretaker's death 'can be considered the probable consequence of the prosecution of the purpose if the purpose in which the applicant concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death' (264).
In Johns v The Queen,[7] Mason, Murphy and Wilson JJ said that the comments of Dixon and Evatt JJ in Brennan indicated that:
[section] 8 was directed to a situation in which the act constituting the offence charged lies outside the scope of the common purpose or solicitation, even outside the actual contemplation of the purpose on which the parties have agreed. None the less, the section provided that in such a situation there is complicity if the act is a probable consequence of the prosecution of the purpose in the sense already explained.
[7] Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108, 128.
Mason, Murphy and Wilson JJ then made these observations about the distinction between s 7 and s 8 of the Code:
Although [Dixon and Evatt JJ] were concerned [in Brennan] with ss 7 and 8 of the Code, the distinction which exists between the two sections can be seen reflected in the common law, eg Stephen's Digest of the Criminal Law, 4th ed (1887), pp 32, 34 (Arts 38, 41):
'ARTICLE 38.
COMMON PURPOSE.
When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose.
If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories unless [they] actually instigate or assist in its commission.'
'ARTICLE 41.
WHERE CRIME COMMITTED IS PROBABLE CONSEQUENCE OF CRIME SUGGESTED.
If a person instigates another to commit a crime, and the person so instigated commits a crime different from the one which he was instigated to commit, but likely to be caused by such instigation, the instigator is an accessory before the fact.'
See also Russell on Crime, 12th ed (1964), vol 1, p 161.
In Stuart v The Queen,[8] 15 people died in a fire at a night club. Stuart and Finch were charged with the murder of one of the customers. At the trial there was evidence that Finch placed two drums of petrol in the foyer of the night club and ignited them with a match. Stuart was not present at the time. The fire was lit by Finch in the execution of a plan formed by Stuart and to which Finch had become a party. The object of the plan was to extort protection money from the owners of night clubs in Brisbane. It was no part of the plan that any people on the night club premises should be killed or injured. At the trial the evidence was sufficient to establish that Stuart knew the fire would be lit when customers were likely to be in the premises. Both Stuart and Finch were convicted of murder. Stuart applied for special leave to appeal on the ground, relevantly, that by virtue of s 8 of the Queensland Criminal Code (which is identical to s 8(1) of the Code) the verdict of guilty of murder was not open upon the evidence. The High Court refused the application for special leave.
[8] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426.
Gibbs J (Menzies & Mason JJ agreeing) stated these propositions in relation to s 8:
(a)The words 'an offence' in s 8 do not mean simply an act or omission viewed in isolation. An act or omission alone does not, in most cases, render a person liable for punishment, within s 2 of the Code. Whether an act or omission renders a person liable to punishment may depend on 'the quality of the act, the intention which accompanied it, its consequences or other circumstances' (440). His Honour elaborated by reference to the facts of Stuart (441):
The words of s. 8 … have the effect, in the present case, that if Finch and Stuart formed a common intention to prosecute an unlawful purpose in conjunction with one another, and if in the prosecution of that purpose Finch committed the offence of murder, and if that offence was of such a nature that its commission was a probable consequence of the prosecution of such purpose, Stuart is deemed to have committed murder.
(b)The words 'a probable consequence' in s 8 do not import a subjective test. The question raised by s 8 is 'whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence' (442).
(c)Gibbs J quoted this passage from the judgment of Philp J in R v Solomon:[9]
This section [s.8] extends the criminal responsibility of persons who have made a concert to commit an offence. They are responsible not only for the concerted - the willed - offence, but also for such offences - but only such offences - as are objectively the probable consequence of the prosecution of the concert.
Gibbs J then said he agreed with Philp J that the test under s 8 is an objective one (442). Gibbs J did not disapprove Philp J's statement that s 8 extends the criminal responsibility of persons who have made a concert to commit an offence, so that the persons are responsible not only for the concerted offence, but also for such offences as are objectively the probable consequence of the prosecution of the concert.
(d)The question whether the offence committed was a probable consequence of the prosecution of the unlawful purpose is not to be decided by reference to abstract concepts (442 ‑ 443).
(e)Under s 8 the jury must consider 'fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then … decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose' (443).
[9] R v Solomon [1959] Qd R 123, 129.
Gibbs J was of the opinion that at the trial there was evidence on which the jury could have been satisfied that 'the murder committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose which Finch and Stuart had in common; it was open to them to infer that Stuart and Finch formed a common intention that Finch should light the fire in the night club at the time when he did light it and when people were known to be in it' (443).

Finally, in relation to Gibbs J's reasons, his Honour said the observations of Dixon and Evatt JJ in Brennan (263) that '[i]t is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered', does not mean that 'it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code' (437). Gibbs J was of the view that (437):
[I]t may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v Canadian Pacific Railway Co ([1892] AC 481, at p 487), cited in R v Scarth ([1945] St R Qd 38, at p 44). If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J in Vallance v The Queen ([1961] 108 CLR 56, at p 76)), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance.
In Stuart, Jacobs J made the point that the purpose with which s 8 is concerned 'must relate both to any ultimate purpose and to the proposed means of achieving that purpose' (450). His Honour then said (450):
The probable consequence of the prosecution of the purpose requires a consideration not only of any ultimate objective but also of the proposed course whereby it is to be attained. Otherwise the offence the commission of which is the requirement for the operation of s 8 could not be tested against the requirement that it be of such a nature that its commission was a probable consequence of the prosecution of the purpose.
In R v Barlow,[10] the respondent and five other people were prisoners in a correctional centre in Brisbane. They were charged with the murder of a fellow prisoner who was assaulted and suffered injuries from which he died. The respondent did not participate in the assault. However, it was alleged that he was a party to a common plan to kill the deceased. Two of the accused pleaded guilty. The other four, including the respondent, pleaded not guilty. After a joint trial, the respondent was convicted of manslaughter and the three others of murder. The Court of Appeal of Queensland quashed the respondent's conviction on the basis that, in circumstances where the other three accused were convicted of murder, s 8 of the Queensland Criminal Code did not permit the jury to return a verdict of guilty of manslaughter against the respondent. A majority of the High Court (Brennan CJ, Dawson & Toohey JJ) allowed the Crown's appeal, set aside the order of the Court of Appeal, instead dismissed the respondent's appeal to that court, and remitted the matter to the Court of Appeal to determine what orders, if any, should be made consequential on the judgment of the High Court. Kirby J also allowed the Crown's appeal and set aside the order of the Court of Appeal, but his Honour would have quashed the respondent's conviction and ordered a new trial on the charge of manslaughter.
[10] R v Barlow [1997] HCA 19; (1997) 188 CLR 1.
Brennan CJ, Dawson and Toohey JJ held that the word 'offence' in s 8 must be understood to refer to an act done or omission made. On that basis, s 8 'deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made' (10). Their Honours then said (10):
[Section 8] fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular 'nature'. Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted.
Brennan CJ, Dawson and Toohey JJ noted that the facts that made the 'principal offender' guilty of murder comprised the striking of the deceased, the death of the deceased, the absence of any justification or excuse for striking the deceased and the intention of the 'principal offender' to cause death or grievous bodily harm. Their Honours said that the respondent had been properly convicted of manslaughter because not all of those facts were necessary to give to the striking the character of an act rendering the 'principal offender' liable to punishment. Absent the intention to cause death or grievous bodily harm to the deceased, the striking without justification or excuse and the consequent death of the deceased rendered the 'principal offender' liable to punishment for manslaughter. The respondent was deemed to have done the act of striking that rendered the 'principal offender' liable to punishment if the requirements of s 8 were satisfied; in particular, '[w]as the nature of the blow actually struck such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose?' (10). Their Honours were of the view that the jury must be taken to have found that 'the striking of a blow which was not justified or excused and which caused death was a probable consequence of prosecuting the purpose common to [the respondent] and the principal offender' (10).
Brennan CJ, Dawson and Toohey JJ held that the respondent did not avoid liability for manslaughter because the 'principal offender' had an intention that made him liable to punishment for murder (10 ‑ 11). Their Honours explained that, on a proper construction of s 8 (11):
[I]f a principal offender does an act or makes an omission in prosecution of an unlawful purpose and, by reason of facts attendant on the doing of the act or the making of the omission, the act or omission renders the principal offender liable to punishment for any of a number of contraventions of the Code, a person who formed a common intention with the principal offender to prosecute that purpose is himself liable to punishment for any contravention that was a probable consequence of prosecuting that purpose.
In Pickett v Western Australia,[11] the High Court considered whether s 7(b), s 7(c) and s 8 of the Code apply to render an enabler or an aider, or a party to an unlawful common purpose, guilty of murder where the deceased may have been actually killed by a child who had not been established to have been criminally responsible for the killing, consequent upon the operation of s 29 of the Code.
[11] Pickett v Western Australia [2020] HCA 20; (2020) 270 CLR 323.
Kiefel CJ, Bell, Keane and Gordon JJ referred to Barlow and noted that in Barlow (10) Brennan CJ, Dawson and Toohey JJ had explained that s 8 does not impute to other participants in an offence the criminal responsibility of the person who did the acts or made the omissions that constituted the offence [47]. It is the conduct of the actor (that is, the actor's acts or omissions) upon which the Code fastens [47]. The circumstances of the offence (including the result of the offence and the state of mind which accompanied the acts or omissions that constituted the offence) establish the offence as being of a particular 'nature' for the purposes of s 8 [47].
Kiefel CJ, Bell, Keane and Gordon JJ also noted that in Barlow (9) Brennan CJ, Dawson and Toohey JJ held that:
(a)the term 'offence' in s 8 'was not to be understood as the concatenation of elements which constitute a particular offence under the Code (Qld), nor as the combination of facts which together render an actual offender liable to punishment' [52];
(b)rather, the term 'offence' in s 8 'was to be understood as referring to the element of conduct (being an act or omission) which, if combined with the other prescribed circumstances, renders the offender liable to punishment' [52].
Kiefel CJ, Bell, Keane and Gordon JJ concluded, relevantly [66]:
[Section] 8 of the Code deems each of two or more persons to have done the act, the doing of which was a probable consequence of the prosecution of an unlawful purpose. It is the doing of the act or the making of the omission by the actor that is attributed to another person or other persons, not the criminal responsibility of the actor. [Section] 8 of the Code render[s] a person other than the actor liable to criminal punishment for those acts or omissions, subject to the personal circumstances of that other person having regard to the other provisions of the Code. The circumstance that one of those persons may have an immunity from criminal responsibility by reason of his or her personal circumstances addressed in Ch V of the Code does not prevent the operation of [s] 8 against the other persons. (footnote omitted)
In R v Ritchie,[12] McPherson JA (Helman & Chesterman JJ agreeing) said that the practical effect of s 8, in substance, is 'to impose criminal responsibility for an unintended, but objectively not unexpected, result of carrying out an unlawful plan or purpose' (5).
[12] R v Ritchie [1998] QCA 188.
McPherson JA made these comments about the application of s 8 in circumstances where multiple persons begin with a limited common unlawful purpose of using a relatively moderate degree of violence against the victim, but the level of violence originally intended escalates during the prosecution of the common unlawful purpose (6):
[I]t has become evident that it is possible for two or more persons to start off with a limited common intention of using physical force of a relatively moderate degree against their victim. Matters may, as is often said, then 'get out of hand' to such an extent that one or more of the original participants engage in acts of violence against the victim going beyond the level of force initially contemplated.
Before some other individual can, in circumstances like that, be held criminally responsible under s.8 for an event (such as the death of the victim) that ensues from such acts of excessive violence that are not his or her own, it is essential that the jury be satisfied either that that event was a probable consequence of the level of violence originally intended by all; or that that other individual shared in the expanded intention to inflict more serious violence than had first been planned. Otherwise the intention will not be 'common' to him or her. (original emphasis)
In Darkan, the three appellants were charged with murder. They were tried jointly and convicted of murder. The Court of Appeal of Queensland dismissed the appellants' appeals against conviction. The appellants then appealed to the High Court on the ground that the trial judge misdirected the jury on the meaning of the expression 'a probable consequence' appearing in s 8 and s 9 of the Queensland Criminal Code. At the trial, the Crown relied on s 8 in relation to all of the appellants and also on s 9 in relation to the second appellant. The High Court held that the trial judge erred in directing the jury that 'a probable consequence' was one which was 'a real possibility or a substantial cause or a real chance'. However, the High Court also held that the proviso should be applied and consequently dismissed each appeal.
Gleeson CJ, Gummow, Heydon and Crennan JJ examined in detail the history of s 8. Their Honours said that s 8 deals with a form of criminal responsibility as an accessory before the fact [29]. Accessorial liability is an exception to the general rules of criminal responsibility [74]. Persons liable under s 8 need not be present at the crime scene and 'the fact that [the crime] might be committed by the principal offender may never have entered their heads' [74]. Their Honours observed that the law has used different techniques for confining accessorial liability within just limits 'while continuing to give it substantial room for operation' [76]. Their Honours then elaborated [76]:
The common law protects against excessively wide liability by demanding actual foresight, albeit of a possibility. Under [s 8] of the Code the function of protecting against excessively wide liability turns on the need for probability of outcome, independently of the alleged accessory's state of mind. If under [s 8] of the Code the expression 'a probable consequence' were construed so as to make a possible consequence sufficient, there would be liability in the accessory for whatever the principal offender did, since the fact that the principal offender did it shows that it was possible, and there would be no protection against excessively wide liability.
Gleeson CJ, Gummow, Heydon and Crennan JJ held that the expression 'a probable consequence' in s 8 means that 'the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible' and the occurrence of the consequence must be 'probable in the sense that it could well happen' [79].
Their Honours said that the question arising under s 8 in Darkan was whether 'the offence' (namely, murder by killing the deceased with intent to do some grievous bodily harm) was 'a probable consequence' of the prosecution of the common intention of the appellants (namely, to prosecute the unlawful purpose of assaulting the deceased) [80]. For 'the offence' to be 'a probable consequence' of the prosecution of the unlawful purpose, 'the commission of the offence had to be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose' [81].
In Keenan, the Crown alleged that the respondent, two co‑accused and Jeramie Jupp were parties to a plan to inflict serious harm upon the victim. During the attack, the victim received bullet wounds to his spine which rendered him paraplegic. The respondent and the two co‑accused were charged with the attempted murder of, and alternatively, with intending to and doing grievous bodily harm to, the victim. The respondent and the two co‑accused were tried jointly. The respondent was acquitted of attempted murder, but convicted of unlawfully doing grievous bodily harm with intent.
At the trial, there was evidence that one of the co‑accused (not the respondent) had fired the shots. There was no evidence that the use of a gun had been discussed by the respondent, the two co‑accused and Jupp as part of the plan. However, there was evidence from which the jury could conclude that the respondent knew that one of the parties to the attack was carrying a baseball‑type bat. The Crown relied upon s 8 of the Queensland Criminal Code to attribute criminal liability to the respondent.
The Court of Appeal of Queensland allowed the respondent's appeal against conviction and set aside his conviction for unlawfully doing grievous bodily harm with intent. The Court entered a judgment of acquittal for that offence and also for the offence of grievous bodily harm simpliciter. The Court considered that there were two alternative inferences open to the jury, which were consistent with the respondent's innocence. At one end of the scale, the common intention could have been merely to moderately assault the victim by the use of fists. At the other end of the scale, the plan may have been to assault the victim by the use of the bat. The Court excluded the possibility that there had been a plan which permitted the parties to use any means they chose, on the basis that there was no evidence of a plan of that kind. The Court held that a properly instructed jury could not have excluded an inference that the co‑accused who had fired the shots was acting independently of the common planned intention concerning the attack upon the victim.
A majority of the High Court (Hayne, Heydon, Crennan & Kiefel JJ) allowed the Crown's appeal, set aside the orders of the Court of Appeal and instead dismissed the respondent's appeal against conviction to that court. Kirby J also allowed the Crown's appeal, but his Honour would have ordered a new trial.
Kiefel J (Hayne J relevantly agreeing and Heydon & Crennan JJ agreeing) noted that s 8 is preceded by s 7 and that s 7 deals with persons who are deemed to be 'principal offenders' [101]. (Section 7 of the Queensland Criminal Code is relevantly identical to s 7 of the Code.)
Her Honour enunciated the purpose of s 8 as follows [102]:
The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. The test of probable consequence reflects the historical approach of the common law … Responsibility does not depend upon the foresight of the parties to the common purpose. Although the common law has come to embrace such a test, the test in s 8 is an objective one (Stuart v The Queen (1974) 134 CLR 426 at 442 per Gibbs J, Menzies and Mason JJ agreeing).
Kiefel J emphasised that, in answering the questions concerning the nature of the offence committed and the common purpose, it is necessary to understand how s 8 operates [115]. Her Honour then said [115]:
The ultimate question which the section poses ‑ whether the offence is of such a nature as to be a probable consequence of the common purpose ‑ is directed to the connection between the offence and the common purpose. It is that connection which is the basis for criminal responsibility. The section's test for connection does not suggest as necessary an approach which imports the act involved in the offence into the finding of common purpose.
Next, her Honour reproduced, with obvious approval, the passage from the judgment of Dixon and Evatt JJ in Brennan which I have set out at [41] above.
Kiefel J observed that the available inferences, as to what the common purpose may have been in a particular case, will depend upon the evidence, viewed as a whole [117]. Her Honour then said [117]:
Section 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact. It provides for the requisite connection to be determined by the application of the test, whether the offence was the probable consequence of the common purpose, after that purpose has been ascertained.
Her Honour made these comments, in the context of a common intention to prosecute an unlawful purpose involving the infliction of physical harm on a victim, about the nature and extent of the physical harm to be inflicted on the victim and the means by which the physical harm is to be inflicted [119] ‑ [121]:
It is not to be expected that every plan involving the infliction of physical harm will be detailed and include the means by which it is to be inflicted. However it may be possible to infer what level of harm is intended and from that point to determine whether the actual offence committed was a probable consequence of a purpose so described.
An inference about the level of harm involved in the common purpose to be prosecuted may be drawn from the general terms in which an intended assault is described, the motive for the attack and the objective sought to be achieved, amongst other factors …
Where a method by which physical harm is to be inflicted has been discussed, or may be inferred as intended, it does not follow that the use of other means will prevent a person being held criminally responsible. In some cases the means intended to be used may permit an inference as to the level of harm intended. An offence involving such harm may be a probable consequence of such purpose whatever means came to be used. It may be otherwise where the intended means suggest no serious harm was intended and the offence committed well exceeds such a purpose.

Kiefel J held that the trial judge was correct to direct the jury to consider the common purpose for which the Crown contended, namely that serious harm was to be inflicted upon the victim [123]. An inference that the common purpose was as contended by the Crown could be drawn from the evidence adduced at the trial [123]. Her Honour said that, '[f]ar from limiting the inference which might be drawn about common purpose, the evidence with respect to the use of the bat supported one of a general purpose, to inflict serious harm' [123]. Her Honour added there could be no doubt that the bat was capable of inflicting grievous bodily harm, even if a gun may do so more efficiently [123]. Her Honour expressed the view that it would be an 'odd result' if the respondent could be criminally liable for grievous bodily harm inflicted by means of a baseball‑type bat, but not by means of a gun, when the level of harm to the victim intended by the parties was achieved [123].
Her Honour then made these comments about the nature and content of the unlawful purpose to which the respondent was a party [124]:
There can be no difficulty, in a case such as the present, in describing the unlawful purpose as the infliction of serious physical harm. In such a case it is not correct to approach the determination of the common purpose by reference to the means and thereby determine the connection to which the objective test in s 8 is directed. Further, the test to be applied under s 8 is as to the probable consequences of the common plan, not what the parties might have foreseen. Even if the respondent had not anticipated that a gun might be used, he may nevertheless be held criminally responsible where it was used and caused the very level of harm that had been intended. In a case involving an objective of this kind the means actually used may not assume importance in the determination of probable consequence.
Finally, in relation to Kiefel J's reasons, her Honour said in effect that the remark of Gibbs J in Stuart (441) that 'to attempt to expand the text of s. 8 by reading into it the description of "offence" contained in s. 2 tends to obscure rather than illuminate its meaning' was made by reference to the facts of that case [131].
In Keenan, Hayne J (Heydon & Crennan JJ agreeing) stated that s 8 deems 'those who form a common intention to prosecute an unlawful purpose to have committed an offence' where 'in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose' [83]. His Honour said that it was necessary in Keenan to address two questions [83]. First, what was the common purpose? Secondly, was the act of shooting an offence of such a nature that its commission was a probable consequence of the prosecution of the purpose?
His Honour then said s 8 is not to be read as requiring that the actual offence that was committed (that is, the shooting) was a probable consequence of the prosecution of the unlawful purpose. If that approach was adopted it 'would give no work to the expression "of such a nature"' [83]. Accordingly [84]:
The question is not whether the act of shooting that did occur was a probable consequence, it is whether the act of shooting was an offence of such a nature (R v Barlow (1997) 188 CLR 1 at 10) that its commission was a probable consequence. This latter question directs particular attention to what was the common intention. Was it, as the prosecution alleged, a common intention to inflict serious physical harm on the victim?
Hayne J expanded upon the proper approach to addressing the second question raised by s 8 as follows [86] ‑ [88]:
It is important to recognise that the second question presented by s 8 ‑ was the offence that was committed an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose? ‑ can be answered in the affirmative even if the possibility that the conduct actually committed would occur was not shown to have been adverted to by any participant in the common intention. So much follows from the fact that what is a 'probable consequence' is to be determined objectively (Stuart v The Queen (1974) 134 CLR 426 at 442 ‑ 443 per Gibbs J).
In considering that objective question it will always be necessary to pay very close attention to what is identified as having been the common intention to prosecute an unlawful purpose. But it is necessary to bear steadily in mind that formation of the common intention to prosecute an unlawful purpose may not have been accompanied by any consideration, let alone detailed consideration, of what was to be done, how it was to be done, and who was to do what to bring about the intended purpose. In such cases there will be no direct evidence that the parties to the common intention adverted to the possibility that an offence of the nature of the offence that was committed would be committed; there will be no evidence that the parties to the common intention were aware that commission of the crime that was committed was a probable consequence (Stuart (1974) 134 CLR 426 at 442 per Gibbs J). Yet as Gibbs J said in Stuart v The Queen ((1974) 134 CLR 426 at 442), 'in fact the nature of the offence [may be] such that its commission was a probable consequence of the prosecution of the common unlawful purpose'.
Whether it was, is a question for the jury (Stuart (1974) 134 CLR 426 at 442 ‑ 443). It is a question that in this case required examination of what inferences were to be drawn from the whole of the evidence. While it may be accepted that the evidence did not require the inference that the common intention was to inflict serious physical harm on the victim by whatever means seemed appropriate and were available, that inference was open and could be drawn beyond reasonable doubt.
His Honour said, in essence, that the premise upon which s 8 is engaged is that s 7 does not apply (and, consequently, the accused is not a 'principal offender' within s 7) and that s 8 is an extension of criminal liability [89]. In particular, his Honour explained [89]:
The Court of Appeal recognised that the premise upon which s 8 is engaged is that s 7 of the Code does not apply, and the accused is not a principal offender within the meaning of the provisions of s 7. Thus the premise upon which it was alleged that s 8 was engaged in the present case was that the respondent was not a person who had done or omitted to do any act for the purpose of enabling or aiding the shooter to shoot the victim (s 7(1)(b)), that the respondent had not aided the shooter in committing the offence (s 7(1)(c)), and that the respondent had not counselled or procured the shooter to shoot the victim (s 7(1)(d)). Yet the actual conclusions reached by the Court of Appeal were founded on the requirement for proof of matters which, if established, may well have brought the respondent within one or more of the identified categories of principal offender. In particular, the requirement that the shooting that actually occurred be a probable consequence of the prosecution of the unlawful purpose is a conclusion that appears to require proof that the respondent either counselled or procured the shooting or at least enabled or aided the shooting. To construe s 8 in this way would deny that it is an extension of criminal responsibility. (footnotes omitted)
Hayne J was of the view that the real issues at trial were whether there was a common intention and, if so, what was the common intention. Whether the shooting of the victim was an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose depended upon what was the common intention [91]. The trial judge correctly directed the jury to consider whether the co‑accused who had fired the shots had acted independently of and outside of the common intention or whether his carrying of a gun was his reflection of a reasonable means of implementing the common intention [91].
In Pickett [40], Kiefel CJ, Bell, Keane and Gordon JJ (who formed the majority) observed that neither s 7 nor s 8, in terms, distinguishes between principal and secondary offenders. Rather, each of s 7 and s 8 makes each of the persons within the ambit of the provision a principal offender. Their Honours continued [40]:
While it is, no doubt, convenient to speak of a person who actually does an act or makes an omission which constitutes an offence as 'the principal offender', the use of that short‑hand for the purposes of discussion should not be allowed to obscure the point that s 7 [and, necessarily, s 8] expressly attributes to the persons mentioned in s 7 [and, necessarily, s 8] the acts or omissions that constitute the offence.
Kiefel CJ, Bell, Keane and Gordon JJ held that 'an offence' may be committed, for the purposes of s 7 and s 8, even though the person who did the relevant act was not criminally responsible because '[t]he personal circumstances referred to in the provisions of Ch V … are immaterial to whether an act has been done, and so to whether an offence has been "committed" for the purposes of ss 7 and 8' [59]. So, in their Honours' view, s 7 and s 8 make a person other than the actor liable to criminal punishment for the actor's act, subject to the personal circumstances of that other person.
In L [40], Martin CJ, Mazza JA and Mitchell J cited Keenan [89], [102] as authority for their Honours' statement that 'the function of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that to which the common purpose was specifically directed'.
A number of propositions in relation to s 8(1) of the Code may be discerned from the judgments of the High Court in Brennan, Johns, Stuart, Barlow, Pickett, Darkan and Keenan. The propositions include the following:
(a)Section 8(1) requires the State to prove three matters. First, the formation by two or more persons of a common intention to prosecute an unlawful purpose in conjunction with one another. Secondly, that in the prosecution of the unlawful purpose an offence was committed. Thirdly, that the offence that was committed was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose. See Brennan (263 ‑ 264) (Dixon & Evatt JJ); Stuart (440 ‑ 442) (Gibbs J; Menzies & Mason JJ agreeing); Keenan [83] ‑ [88] (Hayne J; Heydon & Crennan JJ agreeing).
(b)The word 'offence' in s 8(1) refers to acts done or omissions made which, together with the other prescribed circumstances, render the offender liable to punishment. It is the doing of the acts or the making of the omissions by the actor that is attributed to another person or other persons, pursuant to s 8(1), and not the criminal responsibility of the actor. See Barlow (9 ‑ 11) (Brennan CJ, Dawson & Toohey JJ); Pickett [47], [52], [66] (Kiefel CJ, Bell, Keane & Gordon JJ).
(c)The circumstances in which the relevant acts or omissions which, together with the other prescribed circumstances, constitute the 'offence' in s 8(1); the result of the relevant acts or omissions; and the state of mind which accompanied the relevant acts or omissions; are factors which, either together or separately but in combination with the relevant acts or omissions, define the particular 'nature' of the offence. See Barlow (10) (Brennan CJ, Dawson & Toohey JJ); Keenan [84] (Hayne J; Heydon & Crennan JJ agreeing).
(d)The jury must determine what was the common unlawful purpose; what the prosecution of the common unlawful purpose was intended to involve; and what was the nature of the offence that was actually committed; and then determine whether the offence that was actually committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose. See Stuart (443) (Gibbs J; Menzies & Mason JJ agreeing); Keenan [83] ‑ [88] (Hayne J; Heydon & Crennan JJ agreeing).
(e)The ultimate question posed by s 8(1), namely whether the offence that was actually committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose, is directed to the connection between the offence and the common purpose. That connection is the basis for criminal responsibility under s 8(1). The test of connection does not mandate an approach which imports the acts or omissions involved in the offence into the finding of common purpose. See Keenan [115] (Kiefel J; Hayne J relevantly agreeing, Heydon & Crennan JJ agreeing). The requisite connection is to be determined by applying the test, whether the offence was the probable consequence of the common unlawful purpose, after that purpose has been ascertained. See Keenan [117].
(f)An 'offence', in s 8(1), will be of such a nature that its commission was a probable consequence of the common unlawful purpose if the commission of an offence of that nature was objectively probable in the sense that it could well have happened in the prosecution of the common unlawful purpose. See Darkan [81] (Gleeson CJ, Gummow, Heydon & Crennan JJ).
(g)The premise upon which s 8(1) is engaged is that s 7 does not apply (and, consequently, the accused is not a 'principal offender' within s 7). Section 8(1) is an extension of criminal liability. See Keenan [89] (Hayne J; Heydon & Crennan JJ agreeing), but note the comments in Pickett [40] in relation to the short-hand expression 'principal offender'.
(h)Section 8(1) is directed to a situation in which the acts or omissions constituting the offence charged lie outside the scope of the common unlawful purpose. See Brennan (263 ‑ 264) (Dixon & Evatt JJ); Johns (128) (Mason, Murphy & Wilson JJ).
(i)The purpose of s 8(1) is to extend the criminal responsibility of the parties to the common unlawful purpose to an offence other than that which was intended to be committed. See Keenan [102] (Kiefel J; Hayne J relevantly agreeing, Heydon & Crennan JJ agreeing). See also Stuart (442) where Gibbs J (Menzies & Mason JJ agreeing) referred, without disapproval, to Philp J's statement in Solomon (129) that s 8 extends the criminal responsibility of persons who have made a concert to commit an offence, so that the persons are responsible not only for the concerted offence, but also for such offences as are objectively the probable consequence of the prosecution of the concert.
In my opinion, there is a proper basis, in the text of s 8(1) and in the propositions I have discerned and stated at [85(h) and (i)] above, for concluding that the purpose of s 8(1) is confined to extending the criminal responsibility of the parties to a common unlawful purpose to acts and omissions that were wholly or partly extraneous to the acts and omissions the subject of, or subjectively contemplated by the parties to, the common unlawful purpose when the common unlawful purpose was formed.
Section 8(1) does not, by its terms, make the person or persons who have, individually or in combination, done the relevant acts or made the relevant omissions which, together with the other prescribed circumstances, constitute the offence that was actually committed, criminally responsible for that offence. Section 8(1) does not, by its terms, make the parties to a common unlawful purpose criminally responsible if the common unlawful purpose constitutes an offence and the parties give effect to the common unlawful purpose and consequently commit the offence. Criminal responsibility under s 8(1) depends upon the offence that was actually committed being of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose in the sense that, objectively, an offence of that nature could well have happened in the prosecution of the common unlawful purpose. The requirement that the offence in s 8(1) must have been, objectively, a probable consequence of the prosecution of the alleged common unlawful purpose indicates that the purpose of s 8(1) is confined to extending the criminal responsibility of the parties to the common unlawful purpose to acts and omissions that were wholly or partly extraneous to the acts and omissions the subject of, or subjectively contemplated by the parties to, the common unlawful purpose when the common unlawful purpose was formed.
The State must identify the alleged unlawful purpose which two or more persons (including the accused) have formed a common intention to prosecute. The State must also identify the acts done or omissions made which, together with the other prescribed circumstances, constitute the alleged offence that was actually committed. The State must give particulars of the person or persons who have, individually or in combination, allegedly done those acts or allegedly made those omissions.
The jury must determine whether there was a common unlawful purpose as alleged by the State and, if so, what the prosecution of the common unlawful purpose was intended to involve. The jury must also determine whether the person or persons particularised by the State have, individually or in combination, done the acts or made the omissions alleged by the State. The jury must then determine what was the nature of the acts done or the omissions made which, together with the other prescribed circumstances, constitute the offence that was actually committed. Ultimately, the jury must determine whether the acts done or the omissions made which, together with the other prescribed circumstances, constitute the offence that was actually committed, were of such a nature that the doing of the acts or the making of the omissions was a probable consequence of the prosecution of the common unlawful purpose.
The Court of Criminal Appeal of Tasmania delivered judgment in Shaw before the High Court delivered judgment in O'Dea. In Shaw, Blow CJ, Wood, Pearce and Brett JJ held that s 4 of the Tasmanian Criminal Code (which is relevantly identical to s 8(1) of the Code) is capable of application to offences that are within the scope of the common unlawful purpose [87]. That is, their Honours concluded that s 4 is not confined to offences that are not within the scope of the common unlawful purpose [87]. Their Honours referred to Kiefel J's statement in Keenan [102] as to the purpose of s 8(1) [89]. Their Honours said that Kiefel J 'did not actually say that [s 8(1)] operates exclusively in respect of [an offence other than that which was intended to be committed]' [89]. Their Honours were of the view that Kiefel J's statement concerning the purpose of s 8(1) was intended 'to describe the extended nature of the outer limits of its application, rather than to imply any limitation in that regard' [90].
In O'Dea, the appellant and his co‑accused, Jacob Webb, were tried in the District Court on a count which alleged that the appellant and Mr Webb, within intent to maim, disfigure, disable or do some grievous bodily harm to Alimamy Koroma, unlawfully did grievous bodily harm to Mr Koroma, contrary to s 294(1) of the Code. The jury returned a verdict of guilty, as charged, in respect of the appellant. The jury was unable to agree upon a verdict in respect of Mr Webb. Later, Mr Webb was re‑tried and convicted of the alternative offence of unlawfully doing grievous bodily harm to another, contrary to s 297(1) of the Code.
At the trial of the appellant and Mr Webb, the prosecutor submitted in his closing address that, while it was not possible to be certain that the appellant had caused Mr Koroma's traumatic brain injury (which constituted the grievous bodily harm), it was more likely to be the appellant than Mr Webb. It was submitted that the appellant had inflicted the majority of the blows upon Mr Koroma, including with a weapon similar to a hockey stick. However, as a result of each of the appellant and Mr Webb having inflicted a number of blows upon Mr Koroma, it was possible that the grievous bodily harm had been caused by a combination of their acts.

The trial judge referred to the former friendship between Puntigam and Mr Leather as the basis for the suggestion that there was consent or implied consent. He reminded the jury that this depended on their assessment of the evidence of Mr Leather.[150] It is not apparent why more needed to be done or why the failure to do more resulted in any miscarriage of justice.
[150] Trial ts 357 - 358.
There is no merit in this ground of appeal. Leave in respect of it should be refused.

Puntigam sentence appeal - ground

Puntigam raises one ground of appeal against sentence. It is that:[151]
the total effective sentence imposed breached the first limb of the totality principle.
[151] Puntigam WAB 46.

Puntigam sentence appeal - judge's sentencing remarks

The sentencing judge said that the robbery and the burglary formed two discrete events that took place on separate days and involved different victims.[152]
[152] Sentencing ts 2.
As regards count 1, the sentencing judge found that the relevant facts were as follows. Mr Higgins had arranged to meet with Puntigam to return the work boots and knife. Mr Higgins did not know that Bacich was in the car and would not have got in had he known that. As the car was being driven, Mr Higgins was grabbed from behind in a headlock and pinned to the seat. Bacich demanded his phone and wallet. Bacich gouged Mr Higgins's eye, causing abrasions. When found by police Mr Higgins was visibly shaken and in distress. He had scratches on his neck and blood on his T‑shirt. His Honour found that the robbery was aggravated by the fact that it occurred in moving car and had been planned.[153]
[153] Sentencing ts 3 - 4.
Bacich was the person who physically confronted and assaulted Mr Higgins. However, that could not have happened without the connivance of Puntigam, who lured Mr Higgins into the car where Bacich was hiding.[154]
[154] Sentencing ts 7.
Mr Higgins provided a victim impact statement in which he said that he did not anticipate the offence as he considered Puntigam to be a friend. The offence has exacerbated his anxiety, made him more protective of himself and more distrustful of others and led to him seeking treatment from a psychologist and a psychiatrist.[155]
[155] Sentencing ts 7 - 8.
As regards counts 2 and 3, the sentencing judge found that the burglary was motivated by a desire for retribution or punishment of Mr Leather. He found that the appellants attended the house and, after being told that Mr Leather was not home, made it plain that they were there to hurt him. They were both armed. Mr Leather hid in the wardrobe in his bedroom. Puntigam entered the house and began to search through Mr Leather's belongings. This showed the persistence of Puntigam's offending and her determination to search out Mr Leather. Mr Leather called the police and then challenged Puntigam with a sword. A confrontation of this nature was an inherent risk of the offending and demonstrated how serious it was. The use of the pepper spray also showed persistence in the offending. Mr Leather suffered a painful reaction to the pepper spray. The violence was 'entirely unnecessary and unjustified' and caused fear and trauma for Mr Leather. Bacich was there to provide assistance to Puntigam and chased Mr Leather from the property whilst armed.[156]
[156] Sentencing ts 4 - 7.
His Honour found that the burglary was aggravated by being planned. In this regard he said:[157]
Following the offence against him, Mr Higgins contacted Mr Leather by SMS message and the SMS message was produced in the trial. Mr Higgins told Mr Leather that he was not safe and to be careful and that they were coming for you. He asked who and Mr Higgins named you, Ms Puntigam, and you, Mr Bacich.
He gave a summary of what it was that took place and told Mr Leather to be careful and that they were going to take everyone down, you included. And that SMS supports the proposition which the State asked me to accept and which I do and that is it demonstrates a intent to specifically commit count 2.
And the State quite properly described that event, that is, the aggravated burglary committed against Mr Leather as being a planned event. And that planning demonstrates that your offending was more serious than had it have been a spontaneous or momentary thing. It was not spontaneous. It was not momentary but rather it was planned.
[157] Sentencing ts 4.
The sentencing judge found that there was no basis for either of the appellants to believe that they were entitled to enter Mr Leather's house. Puntigam had previously accused Mr Leather of damaging her car and twice assaulted him not long before the offence. His Honour said he could not say whether this was the reason for any grievance on this day, but he was satisfied that Puntigam's purpose was to assault and punish Mr Leather.[158]
[158] Sentencing ts 9.
The sentencing judge described the case against the appellants as being overwhelming. Whilst they were not to be punished for pleading not guilty, there were no indications of remorse. However, it was accepted that each of the appellants had shown some limited insight into their conduct.[159]
[159] Sentencing ts 9.
As regards Puntigam's personal circumstances, at the time of sentencing she was aged 49 years, did not have a criminal record of significance, and the offending was out of character. His Honour referred to the pre-sentence report and the psychological report and said that he accepted without reservation that Puntigam had had 'the most difficult of childhoods' and had been 'deprived of the building blocks that are required to lead a stable life'. She had become a drug user at a very young age and without the ability to understand the consequences of that use. To her credit she has been able to build a meaningful life, gain employment and raise her children. Her life had also been marred by being the victim of domestic violence. She had relapsed into illicit drug use at the time of the offences.[160]
[160] Sentencing ts 11 - 12.
The sentencing judge said that he took the personal factors into account whilst being mindful of the need for the sentence to properly reflect community concern regarding offences of this kind and the need for the penalty to act as a deterrent. His Honour said that he accepted that the appellants were equally culpable. However, he considered that the particular personal circumstances of Puntigam allowed room for an adjustment of the sentence in her case.[161]
[161] Sentencing ts 12 - 13.
The sentencing judge said that the offences required some degree of accumulation to reflect the fact that the offending involved two separate incidents involving different victims. He sentenced Puntigam to 18 months' immediate imprisonment on count 1, 4 years' immediate imprisonment on count 2 and 8 months' immediate imprisonment on count 3. The sentence on count 1 was reduced to 18 months' immediate imprisonment from 3 years' immediate imprisonment for reasons of totality. Counts 1 and 2 were ordered to be cumulative and count 3 concurrent. Thus, the total effective sentence was 5 years 6 months' immediate imprisonment.[162]
[162] Sentencing ts 15.

Puntigam sentence appeal - relevant law

The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[163]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[163] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

Puntigam sentence appeal - submissions

No issue is raised with the individual sentences on each of the counts. It is accepted that each of the individual sentences fall within the range of sound sentencing discretion. However, it is submitted that the total effective sentence of 5 years 6 months' immediate imprisonment breached the first limb of the totality principle.[164]
[164] Puntigam WAB 47 - 48.
Puntigam places particular emphasis on her deprived childhood. This includes being the victim of intra-familial sexual abuse. She had also been the victim of domestic violence as an adult, including suffering a brain injury when she was aged 23.[165] Other relevant personal factors include the absence of any significant criminal record, that she is the mother of five children (three of whom were living with her at the time of sentencing), and that she suffers several physical and psychological conditions.[166]
[165] Though in sentencing submissions this was said to be mild in nature and did not reduce moral culpability: trial ts 418
[166] Puntigam WAB 50.
Puntigam submits that whilst the sentencing judge made reference to the personal factors, it can be inferred from the total effective sentence imposed that those factors were not accorded their full weight.[167]
[167] Puntigam WAB 51.

Puntigam sentence appeal - the merits

The maximum penalty for aggravated robbery is 20 years' imprisonment.[168] The maximum penalty for aggravated burglary is 20 years' imprisonment.[169] The maximum penalty for administration of a noxious substance is 7 years' imprisonment.[170]
[168] Code s 392(d).
[169] Code s 401(a).
[170] Code s 301(a).
The offending conduct was clearly very serious. In the case of count 1 the salient features were that:
1.the offending involved a degree of planning as evidenced by the concealment of Bacich in the car;
2.there was an element of breach of trust in that Puntigam used her friendship with Mr Higgins to lure him into the car;
3.actual violence was used, causing bodily injury to Mr Higgins; and
4.the offence was committed in a moving car, which carried a real risk of loss of control and far greater injury to the occupants and members of the public.
In the case of count 2 the salient features were that:
1.the offending was motivated by a desire to seek retribution and punishment for a grievance;
2.both appellants were armed;
3.there was a real risk that entry into the house would result in a confrontation and injury;
4.there was an element of persistence, in that the appellants on being told that Mr Leather was not home forced their way in and searched the house; and
5.the use of the pepper spray was unjustified and occurred after Mr Leather had sought to lawfully remove home invaders.
The appellants were found to be equally culpable, and this finding is not challenged. They were convicted after trial and displayed no remorse for the offending. There is no challenge to the individual sentences. Nor is it suggested that accumulation was inappropriate.
Sentences for offences of robbery in company involving actual violence often fall within the range of 2 and 4 years' immediate imprisonment.[171] A sentence of 18 months' immediate imprisonment falls well below that range. That sentence can only be justified on the basis that it was significantly reduced to take into account totality considerations and matters personal to the appellant.
[171] Schischka v The State of Western Australia [2015] WASCA 15 [33] (Martin CJ).
Sentences for home burglary offences involving forcible entry into residential premises known or suspected to be occupied and accompanied by threatened or actual violence commonly attract sentences in the range of 2 years to 4 years 6 months' immediate imprisonment.[172] More recently sentences of 5 years and 4 years 6 months' immediate imprisonment have been imposed on pleas of guilty and this court has made statements regarding the need to firm up sentences for burglaries.[173] The sentence of 4 years' immediate imprisonment falls within that range. Indeed, given that it was imposed after trial, it may be described as lenient.
[172] Kelly v The State of Western Australia [2020] WASCA 29 [44].
[173] The State of Western Australiav Krakouer [2022] WASCA 118; Beekman v The State of Western Australia [2022] WASCA 130.
Given that, as the sentencing judge acknowledged, the counts related to two distinct events involving different victims, there was a need for some degree of accumulation between the sentences. Without that accumulation the total sentence would almost certainly fail to reflect the seriousness of the overall criminal conduct. The sentencing judge, however, reduced the sentence on count 1 for totality reasons.[174]
[174] Sentencing remarks 12 - 13.
The appellant's essential submission is that the total sentence is disproportionate having regard to her personal circumstances, in particular her deprived and traumatic childhood. The sentencing judge specifically referred to those matters and accepted that they had significance in determining the appropriate penalty. Indeed, given their equal culpability, the explanation for the difference in the sentences between the appellants is explained by the weight given to the appellant's (Puntigam's) personal factors. This does not, of course, mean that those factors were only accorded a 6‑month reduction, because that would ignore that Bacich also had some favourable personal mitigating factors.
In any event, the personal circumstances of the appellants are but one factor relevant in sentencing. The maximum penalties and the seriousness of the offence must also be considered. This was offending that was accompanied by a number of significant aggravating factors. It is not apparent from the total effective sentence that there was any failure to take into account, and give appropriate weight to, all relevant sentencing factors.
Neither Puntigam nor the respondent has referred to any comparable cases involving the same combination of offences and personal factors. That does not, of course, mean that the court cannot determine whether the sentence is unjust or unreasonable. It simply means that that exercise must be undertaken without the benefit of comparable cases.
The total effective sentence of 5 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those personal to the appellant. The total sentence is not plainly unjust or unreasonable.
We would refuse leave in respect of this ground.

Bacich sentence appeal - grounds

Bacich advances four grounds of appeal against sentence. They are as follows:[175]
[175] WAB 62 - 64.
1.In making findings for the purposes of sentencing in respect of count 2, the learned sentencing judge made an error of fact in making the following findings when the evidence upon which the learned sentencing judge relied to support those findings was incapable of supporting those findings:
(a)the two accused (and the appellant in particular) had an intention to commit a burglary involving and assault or an intention to offend against Mr Leather by way of personal violence; as to this finding the learned trial judge relied particularly on the SMS messages from Mr Higgins, and the fact that the offenders used the side gate.
(b)the burglary was 'a planned event'.
(c)The two accused targeted Mr Leather (presumably meaning that they entered the premises with an intention to assault him, rather than an assault happening during their presence);
(d)Ms Puntigam was 'doggedly determined to pursue Mr Leather and to search him out'.
(e)Ms Puntigam's conduct in starting to look through Mr Leather's drawers and boxes and that conduct demonstrated 'the persistence of [her] offending'.
(f)the appellant had been at the address to assist Ms Puntigam and provided assistance and persistence (sic).
(g)whilst armed the appellant chased Mr Leather from the premises.
2.In making findings for the purposes of sentencing, the learned sentencing judge erred in not making adequate or specific findings as to basis for the appellant's criminal liability in respect of counts 2 and 3 of the indictment.
3.In making findings for the purposes of sentencing in respect of counts 2 and 3, the learned sentencing judge erred in not making specific findings as to the following matters which were significant when assessing the criminal culpability or personal responsibility of the appellant, and about which the learned sentencing judge was required to make a finding:
(a)the facts which demonstrated the degree of planning (if any) involved in the offence.
(b)with what purpose each of Ms. Puntigam and Mr Bacich attend the premises.
(c)Ms Puntigam's intention prior to entering the house, and at the various different stages of her encounter with Mr Leather.
(d)what knowledge did Mr Bacich have concerning possession of the capsicum spray by Ms Puntigam.
(e)what was to be made of the fact that Mr Bacich stayed outside.
(f)the significance of the fact that Ms Puntigam was looking through drawers and boxes after she yelled out to Mr Bacich that 'he was not there'
(g)the significance of that remark in determining Mr Bacich's level of criminal culpability.
(h)the impact (if any) which that remark had on whether he was a principal or an aider, or a section 8 offender.
(i)did Ms Puntigam's intention change when she was unable to confront Mr Leather (at the time, she appears to have been rifling through boxes).
(j)with what purpose did Mr Bacich enter the dwelling when he did so.
(k)what knowledge did Mr Bacich have of Ms Puntigam's purpose at that time.
(1)what knowledge did Mr Bacich have of the unfolding of events in the bedroom when he entered the dwelling.
(m)was Mr Bacich an aider under section 7(b) and, if so, what acts did he do to enable or aid.
(n)was Mr Bacich an aider under section 7(c) and, if so, what acts did he do to aid.
(o)if Mr Bacich was guilty under section 8, then what was the original unlawful purpose.
(p)what personal violence (if any) was used by Mr Bacich
(q)the impact of His Honour's finding that count 3 was not premeditated on various of the issues above.
4.A different total effective sentence should have been imposed by the learned sentencing Judge having regard to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the appellant's criminal conduct occupies on the scale of seriousness and the personal circumstances of the appellant.
Particulars
The total effective sentence did not fairly reflect the appellant's overall criminality, and, in particular, his involvement in the burglary offence, having regard to the following matters:
(a)The appellant did not confront or commit personal violence upon Mr Leather inside the dwelling;
(b)The confrontation which occurred after Mr Leather went outsided (sic)occurred after Mr Leather had injured Ms Puntigam, and whilst Mr Leather was armed with a sword.

Bacich sentence appeal - judge's sentencing remarks

The factual findings of the sentencing judge have been summarised at [173] ‑ [180].
As regards the personal circumstances of Bacich, the sentencing judge noted the following: Bacich was 50 years of age at the time of sentencing; and he had a relevant prior criminal record. However, he had demonstrated that he was capable of leading a law‑abiding life and there were periods during which he had been a productive member of society. Personal references attested to this. He is from a loving and supportive family, which increased his prospects of rehabilitation. He has some medical conditions that hamper him, which were taken into account in reducing the sentence that would otherwise have been imposed. These include post‑traumatic stress disorder, for which he was seeking treatment. He has some issues with substance use.[176]
[176] Sentencing remarks 9 - 10.
The sentencing judge sentenced Bacich to 2 years' immediate imprisonment on count 1, 4 years' immediate imprisonment on count 2 and 8 months' immediate imprisonment on count 3. The sentence on count 1 was reduced from 3 years to 2 years for totality reasons. His Honour ordered that the sentence on count 2 be served cumulatively and the sentence on count 3 be concurrent. Thus, the total effective sentence for Bacich was 6 years' immediate imprisonment.[177]
[177] Sentencing remarks 14 - 15.

Bacich sentence appeal - grounds 1 to 3 - submissions

The essential issues in respect of grounds 1, 2 and 3 are whether it was open to the sentencing judge to find that the assault committed on Mr Leather was planned and that the appellants were persistent in their pursuit of him. Bacich submitted that the only findings available on the evidence were that he had attended at the house to confront Mr Leather, without any intention of inflicting violence on him, and he then responded when Puntigam was struck with the samurai sword.[178]
[178] Bacich WAB 75.
Bacich submitted that the sentencing judge was in error in using the text messages of Mr Higgins to draw an inference that he intended to commit the burglary and that it was planned. Statements made by Mr Higgins could not logically be used as evidence of the appellant's state of mind.[179]
[179] Bacich WAB 74 - 75.
The sentencing judge also stated that the fact that the appellants had gone to the side gate and from there to the back of the house demonstrated 'the intent that (they) had, which was to enter the home and offend against Mr Leather'. Bacich submits that this conclusion is not justified by the premise.[180]
[180] Bacich WAB 72.
The sentencing judge found that Puntigam was 'doggedly determined to pursue Mr Leather and to search him out' and that her conduct in looking through drawers and boxes demonstrated the 'persistence of [her] offending'. His Honour also made a finding that the appellants had 'targeted' Mr Leather. Bacich submits that the evidence does not support these conclusions and that they tainted the sentencing judge's view of the appellant. In particular, it is contended that the sentencing judge failed to consider exactly what Bacich did to aid the offending of Puntigam. It is submitted that had he done so he would have imposed a lesser sentence.[181]
[181] Bacich WAB 74 - 75.
Counsel for Bacich accepted that if the sentencing judge was in error in his findings it was appropriate for this court to make findings on the evidence. It was conceded that this would be done on the basis that Mr Higgins's and Mr Leather's evidence was accepted by the jury.[182]
[182] Appeal ts 66.
In oral submissions, counsel for the respondent accepted that the text messages had no relevance to the state of mind of the appellant. Nor could an inference that the violence in respect of count 2 was planned be drawn from what the appellants did in relation to Mr Higgins on count 1. It was accepted that it was not open on the evidence to infer that the appellants went to Mr Leather's house with the intention of assaulting him, as opposed to merely confronting him.[183]
[183] Appeal ts 76 - 77
The respondent submitted that the sentencing judge used references to premeditation and planning to suggest that the offending, in a broad sense, was not spontaneous. This conclusion is said to be supported by the fact that the appellants arrived together, that they were armed and that they knew Mr Leather. In addition, they made threats to find and harm Mr Leather when told he was not home. There was also an element of persistence in the offending in that the appellants forced entry and Puntigam searched the house, including the bedroom. The word 'doggedly' was merely a rhetorical flourish in this context.[184]
[184] Bacich WAB 91 - 92.

Bacich sentence appeal - grounds 1 to 3 - the merits

It is not possible to infer Bacich's intention from the text messages sent by Mr Higgins to Mr Leather. There was, however, other evidence as to the appellants' intentions. Mr Higgins said that when he was being restrained in the car Puntigam said that 'they were coming for me and Alex'.[185] Bacich was present at the time. It was no doubt that statement that prompted the text messages. But neither that evidence nor what was done to Mr Higgins support a conclusion that the assault on Mr Leather was planned.
[185] Trial ts 58
The respondent concedes that the evidence as a whole did not support a conclusion that the appellants went to Mr Leather's house with the intention of assaulting him.[186] The evidence supports a conclusion that the violence at the house was a spontaneous response to the events. It could not be inferred that any plan extended beyond going to the house with the intention of confronting Mr Leather. Nonetheless, the violence was clearly intentional at the point when it occurred and, as regards Bacich, was a reasonably probable consequence of the common purpose.
[186] Bacich WAB 93.
The sentencing judge's findings could be interpreted as suggesting that the violence was planned. However, it is open to interpret the references to planning and premeditation as meaning that the appellants intended to go to Mr Leather's home with the intention of entering without his consent and confronting him. In our view that is the preferable interpretation. It accords with the reference to the 'burglary' being planned. It also accords with the evidence that, whilst the appellants went to the house together armed with weapons, the use of the pepper spray occurred in the context of a sudden confrontation with Mr Leather. That was evidence that the sentencing judge must have been well aware of. We are not convinced that the sentencing judge made the alleged error regarding planning.
As to the finding of the sentencing judge that Puntigam 'doggedly' pursued Mr Leather, it may be accepted that the mere fact that she searched through the drawers in his room does not support that conclusion. However, there was other evidence that did support such a finding. Mr Leather said that when the appellants were told by Mr Lawrence that he was not home he heard the appellants say, '[b]ullshit. He's in there. We're going to kill him'. Counsel for Bacich accepted that those comments were made and were intended to intimidate.
The sentencing judge's findings that Puntigam doggedly pursued Mr Leather and that he was targeted must be viewed in the context of the remarks as a whole. There was ample basis in the factual findings to conclude that the appellants were not deterred by being told that Mr Leather was not at home and had persisted by forcibly entering the house. Puntigam had then searched the house. Whilst she was not looking for him when going through drawers and boxes, that was merely a part of the conduct. To say Mr Leather was targeted was simply to recognise that the object of the forcible entry was to find and confront him. We are not convinced that the sentencing judge made the alleged error regarding pursuing Mr Leather.
Ground 3 asserts that there was a failure to make findings in respect of a long list of matters. Sentencing is not a formulaic exercise. Where an offender is convicted after a trial it is necessary for the trial judge to make findings of fact consistent with the verdicts of the jury and based on the evidence at the trial. The findings must be sufficient to enable an assessment of the offender's level of culpability. It is not necessary, and may not be possible, to determine every disputed matter of fact. In this case, the findings made were sufficient and this ground is without merit.
Whilst we would grant leave to appeal in respect of grounds 1, 2 and 3, they do not succeed.

Bacich sentence appeal ‑ ground 4 ‑ relevant law

The principles relevant to a ground of appeal that contends that the first limb of the totality principle has been infringed have been set out above at [183].

Bacich sentence appeal - ground 4 - submissions

Bacich relies on two cases which are said to support a conclusion that the total effective sentence imposed on him was unreasonable or unfair. The cases are Mamkin v The State of Western Australia[187] and Bradbury v The State of Western Australia.[188]
[187] Mamkin v The State of Western Australia [2017] WASCA 61.
[188] Bradbury v The State of Western Australia [2020] WASCA 14.
Mamkin concerned an 18‑year‑old offender who was convicted on his pleas of guilty to seven counts, comprising two counts of armed robbery, one count of stealing, one count of aggravated robbery, one count of attempted aggravated robbery, one count of aggravated burglary and one count of stealing a motor vehicle. A total effective sentence of 6 years 10 months' immediate imprisonment was not disturbed on appeal.
Bradbury concerned an offender who was convicted on his pleas of guilty of four counts, comprising two counts of deprivation of liberty, one count of unlawful wounding and one count of aggravated armed robbery. A total effective sentence of 6 years 8 months' immediate imprisonment was not disturbed on appeal.
Bacich submits that both Mamkin and Bradbury involved significantly more serious offending and that the pleas of guilty in those cases are insufficient to explain the fact that he received a similar sentence. This is said to support a conclusion that the sentence imposed on Bacich infringed the first limb of the totality principle.[189]
[189] WAB 79 - 82.

Bacich sentence appeal - ground 4 - the merits

For the reasons given in respect of Puntigam's sentence appeal, these were serious offences that entirely justified the imposition of cumulative sentences of imprisonment. Bacich had some relevant mitigating factors, but not the history of childhood trauma and deprivation that was present in the case of Puntigam.
Neither of the two cases referred to by Bacich are truly comparable. They involved different groupings of offences and the circumstances of the offending are not even broadly similar to that of the appellant. In both of those cases the offenders pleaded guilty and received discounts for doing so - a factor not present here. In Mamkin the offender had the significant mitigating factor of youth - a factor not present here. In any event, the purpose of referring to comparable cases is to ensure that there is consistency in the application of sentencing principles. No benefit is derived from reference to a sample of only two cases in which appeals against sentence were dismissed.
As with Puntigam, the sentencing judge reduced the appellant's sentence on count 1 for totality reasons. That reduction had the effect of ensuring that the total effective sentence properly reflected the overall criminality.
Having regard to the circumstances of the offences, the maximum penalties, the standards of sentences customarily imposed for offences of these types and the personal circumstances of the appellant, the total effective sentence imposed on Bacich was not unreasonable or unjust.
There is no merit in this ground of appeal. Leave in respect of it should be refused.

Bacich sentence appeal - application to adduce additional evidence

By application in an appeal filed on 22 March 2023, Bacich applied for leave to adduce additional evidence in his appeal against sentence. In general terms, the proposed additional evidence describes Bacich's diagnosis with cancer in November 2022 following symptoms he experienced in September 2022, and his subsequent treatment for that condition.
This evidence could only possibly be relevant to this court's determination of the appeal if one or more of the grounds of appeal against sentence had been established and it was necessary for this court to resentence Bacich. The fact of Bacich's symptoms and diagnosis after his sentencing on 28 May 2021 does not of itself provide grounds for this court to interfere with his sentences on the basis of error or miscarriage of justice.[190] As the court noted in Baynah v The State of Western Australia [No 2]:[191]
[A]n appellate court does not fulfil a continuing supervisory role over the effect of a sentence of imprisonment upon an individual. Where a sentence, appropriate when passed, has, by reason of subsequent events, turned out to be excessive, that is a matter for executive government, rather than this court.
Further, none of Bacich's grounds of appeal against sentence alleges that the absence of the proposed additional evidence at the sentencing hearing gave rise to a miscarriage of justice.
[190] See Wellstead v The State of Western Australia [2019] WASCA 130 [78] - [100].
[191] Baynah v The State of Western Australia [No 2] [2019] WASCA 103 [67], cited in Wellstead [92].
As none of the grounds of appeal against sentence have succeeded, the question of resentencing does not arise and the proposed additional evidence is not relevant to this court's determination of the appeal. We would therefore dismiss the application to adduce additional evidence in Bacich's sentencing appeal.

Conclusion

The appeals against conviction and sentence by each of the appellants should be dismissed.
We would make the following orders:

CACR 77 of 2021 (Puntigam Conviction Appeal)

1.Leave to appeal granted.
2.Appeal dismissed.

CACR 78 of 2021 (Puntigam Sentence Appeal)

1.Leave to appeal refused.
2.Appeal dismissed.

CACR 136 of 2021 (Bacich Conviction Appeal)

1.Extension of time to appeal granted.
2.Leave to appeal on ground 1 granted.
3.Leave to appeal on ground 2 refused.
4.Appeal dismissed.

CACR 137 of 2021 (Bacich Sentence Appeal)

1.Extension of time to appeal granted.
2.Leave to appeal on grounds 1,2 and 3 granted.
3.Leave to appeal on ground 4 refused.
4.Application to adduce additional evidence dismissed.
5.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
29 MARCH 2023