Quirk v The State of Western Australia - [2019] WASCA 76

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   QUIRK -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 76
CORAM:   BUSS P
MITCHELL JA
PRITCHARD JA

HEARD:   4 FEBRUARY 2019
DELIVERED          :   21 MAY 2019
FILE NO/S:   CACR 99 of 2018
BETWEEN:   JAMIE QUIRK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number             :   KAL IND 20 of 2017

Catchwords:

Criminal law - Appeal against sentence - Section 318(1)(d) of the Criminal Code (WA) - Two counts of assaulting a police officer - Where appellant sprayed the contents of a fire extinguisher in the face of police officers - Whether trial judge infringed first limb of totality principle in imposing total effective sentence of 4 years 6 months' immediate imprisonment - Turns on own facts

Criminal law - Appeal against sentence - Section 304(2) of the Criminal Code (WA) - One count of, with intent to harm, committing an act as a result of which the life, health or safety of police officers was, or was likely to be, endangered - Where appellant poured accelerant onto a fire already burning in a room of a house - Whether trial judge infringed first limb of totality principle in imposing total effective sentence of 4 years 6 months' immediate imprisonment - Turns on own facts

Legislation:

Criminal Code (WA), s 304(2), s 318(1)(d)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	T Cullity
Respondent	:	J Scholz

Solicitors:

Appellant	:	Tom Cullity
Respondent	:	Director of Public Prosecutions (WA)

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

Alford v The State of Western Australia [2018] WASCA 186
Darroch v The State of Western Australia [2018] WASCA 114
Giglia v The State of Western Australia [2010] WASCA 9
Jneid v The State of Western Australia [2018] WASCA 67
Kaokula v The State of Western Australia [2016] WASCA 198
Penny v The State of Western Australia [2016] WASCA 52
Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587
Schischka v The State of Western Australia [2015] WASCA 15
The State of Western Australia v Chapman [2012] WASCA 203
Thompson v The State of Western Australia [2019] WASCA 68

JUDGMENT OF THE COURT:

The appellant was convicted, following trial, of three offences. The appellant was convicted of two counts of assaulting a public officer who was performing a function of his office or employment (both victims being police officers), contrary to s 318(1)(d) of the Criminal Code (WA) (counts 1 and 2). The third offence was that, with intent to harm, the appellant did an act as a result of which the life, health or safety of both police officers was, or was likely to be, endangered, contrary to s 304(2) of the Criminal Code (count 3).
The appellant received a total effective sentence of 4 years and 6 months' immediate imprisonment. The learned sentencing judge structured the sentences as follows. On count 1, the appellant was sentenced to a term of immediate imprisonment of 2 years, which was reduced for totality purposes to a term of immediate imprisonment of 1 year and 6 months. On count 2, the appellant was sentenced to a term of immediate imprisonment of 2 years. On count 3, the appellant was sentenced to a term of immediate imprisonment of 3 years. The learned sentencing judge ordered that the sentence for count 1 be served cumulatively on the sentence imposed in respect of count 3, and ordered that the sentence for count 2 be served wholly concurrently with the sentence imposed in respect of count 3.
The sentence was backdated to 1 November 2017, to take into account the time the appellant had been remanded in custody. The appellant was made eligible for parole.
The appellant appeals against his sentence. He requires leave to do so. His application for leave was referred to the hearing of the appeal.[1]
[1] Order made by Mazza JA on 27 July 2018.
For the reasons set out below, leave to appeal should be refused and the appeal should be dismissed.

Circumstances of the offending

On Sunday 30 October 2016, police officers went to the appellant's home to execute a search warrant in connection with charges for which the appellant's partner had been arrested. Two of the police officers knocked at the door, and were refused entry by the appellant. The police officers then forced the door open to gain entry. As they did so, they saw a small fire burning on the carpet in a rear room. The appellant was standing near the fire, shouting abuse at the officers.
The appellant then pointed a fire extinguisher at the two officers and sprayed it in their faces. They repeatedly asked the appellant to stop doing so. He did not, and continued to shout abuse at them. The police officers did not know that what the appellant was using to spray them with was a fire extinguisher. They were concerned that he had sprayed them with a flammable liquid. One officer tried to deploy pepper spray but it largely blew back onto him because of the force of the spray from the fire extinguisher.
The appellant then retreated into the rear room where the fire was burning. As the police officers approached him, the appellant threw accelerant, most probably a distillate such as turpentine spirit, onto the fire.
The accelerant thrown onto the fire immediately ignited, causing the walls of the room to light up, and engulfing the room in flames and the house in smoke.
The appellant then put on a motocross helmet, and charged at the officers. One Tasered the appellant, who fell to the floor. The other officer then struggled with the appellant as the officer attempted to handcuff him. After a considerable struggle, the appellant was restrained and taken out of the house.
The two police officers suffered from smoke inhalation and sustained minor injuries.
As the fire spread throughout the home, nearby homes had to be evacuated. The appellant's home was largely destroyed by the fire, resulting in damage in the order of several hundred thousand dollars.

Victim impact statement

A victim impact statement (VIS) prepared by one of the police officers involved in the struggle with the appellant was submitted to the court at the sentencing hearing.
In the VIS, the officer indicated that after he tried to spray the appellant with pepper spray, which resulted in the spray blowing onto him, he felt a burning sensation on the skin of his face, neck and arms, his eyes stung, and he found it difficult to breathe. His subsequent attempts to wash away the spray exacerbated the burning sensation and was painful. Fortunately, he did not suffer long term effects from either the pepper spray or the smoke inhalation. He was unable to ascertain the nature of the fire extinguisher contents which were sprayed onto him, although he subsequently discovered that that type of extinguisher had been discontinued and banned because of its chemical components. He remained concerned about his exposure to that substance.
After the offences, the officer lost confidence, and lost his desire and motivation to pursue his career in the police force, which he had previously found to be an enjoyable job. He found himself questioning his decisions at work, and feared making a wrong decision and placing his colleagues in danger. He also experienced a loss of confidence in his personal life, felt hesitant in making everyday decisions, and became less tolerant of others. He took leave from the police force, and sought counselling to assist him to deal with these feelings.
Counsel for the State informed the court at the sentencing hearing that that officer had subsequently left the police force.[2]
[2] White Appeal Book 243 (WAB).

The appellant's personal circumstances and antecedents

The appellant was 34 years of age when he committed the offences, and was 36 years of age when sentenced.
The appellant grew up in Victoria. He was the youngest of four children. His parents separated when he was relatively young. While he struggled through school, he acquired adequate literacy and numeracy skills. He commenced using cannabis at about 14 years of age, and eventually used it daily. He was expelled from school in year 11 after damaging school property.
The appellant relocated to Kalgoorlie when he was about 19 years of age, in order to avoid negative peer associations which had contributed to him becoming involved in criminal activity. He obtained work in the mining industry and ceased using cannabis, but began consuming alcohol excessively. In 2005, when the appellant was about 22 or 23 years of age, he participated in a residential rehabilitation programme and stopped abusing alcohol. He then commenced a period of stable employment in the mining industry, until 2013, when he suffered a workplace injury as a result of which he could not work. He received workers' compensation payments but was eventually made redundant.
At the time of the offence, the appellant had been in a stable relationship for 15 years with his partner, who is also from Victoria. They have no children.
Shortly before the offences were committed, the appellant and his partner experienced a number of stressful incidents, including the deaths of family members, and financial stress when the appellant's workers' compensation payments ceased. About 11 or 12 months before the offences were committed, the appellant commenced using methylamphetamine and his use of the drug increased over the intervening period.
After the offences were committed, the appellant engaged in counselling to obtain support in abstaining from drug use and in dealing with the other stressors in his life.
At the time of sentencing, the appellant's partner had returned to Victoria to obtain treatment for a very serious illness. He continues to have her support.
A psychological assessment suggested that the appellant's offending was linked to an escalation in his methylamphetamine use, which he pursued as a coping mechanism in response to his personal circumstances, and also resulted from some antisocial attitudes. The learned sentencing judge found that the more likely cause of the offending was the impact of the appellant's methylamphetamine use, particularly in light of the fact that, prior to the commission of these offences, the appellant had not slept for three to four days due to his use of methylamphetamine.[3]
[3] WAB 253.
Given the lengthy gap in his offending history, the psychologist concluded that the appellant had the capacity to manage the risk factors for his further offending in the longer term, and he was assessed as presenting a low risk of re-offending in a violent manner. However, that assessment was subject to the observation that the appellant's risk of re-offending would increase if he recommenced the use of illicit substances.
The appellant had a prior criminal record. Between 2001 and 2005, he committed a number of offences including drink driving, dangerous driving, failing to stop when called upon, assaulting a public officer, two counts of common assault, two offences involving disorderly behaviour, and criminal damage. He had no further criminal convictions between June 2005 and the commission of the present offences.

The sentencing judge's findings as to the seriousness of the offending

The learned sentencing judge regarded count 3 as the most serious offence, given that offending of that kind involves acts which put life at risk,[4] and also having regard to the maximum penalty of 20 years' imprisonment for that offence.[5]
[4] WAB 248.
[5] WAB 254.
His Honour had regard to the factors relevant to the seriousness of such an offence, including the nature and seriousness of an offender's intent to harm, and the nature and seriousness of the harm caused or likely to be caused.
Turning first to the appellant's intent to harm, the learned sentencing judge concluded that the jury's verdict indicated that they had rejected a submission made by the appellant's counsel that the appellant had acted under a mistaken belief that what he threw onto the fire was water. The learned sentencing judge found that the appellant was not under any misapprehension about what that liquid was. He found that the appellant put the liquid onto the fire to accelerate it, so as to burn material related to the search warrant.[6] The learned sentencing judge did not sentence on the basis that the appellant's intention was to cause harm to the police officers, but rather on the basis that the appellant intended to hinder their execution of the search warrant.
[6] WAB 250 - 251.
As for the nature and seriousness of the harm caused or likely to be caused to the officers, the learned sentencing judge found that while the police officers were not seriously injured, the potential consequences of the appellant's conduct involved a 'very real risk of serious injury'.[7]
[7] WAB 254.
The learned sentencing judge accepted that the appellant was affected by drugs at the time of the offending. His Honour found that while the appellant's conduct was not pre-meditated, it was deliberately aggressive and had placed the lives of the police officers at risk.[8] He regarded the appellant's conduct in using a volatile substance on a fire in circumstances where the police officers were in close proximity as being most dangerous, and concluded that the appellant's conduct was 'serious offending by any measure'[9] and that this was a serious example of the offence under s 304(2) of the Criminal Code.[10]
[8] WAB 251.
[9] WAB 251.
[10] WAB 254.
Turning to counts 1 and 2, the maximum penalty for those offences is imprisonment for 7 years. The learned sentencing judge regarded counts 1 and 2 as involving serious assaults on the two police officers. He characterised the appellant's conduct in spraying the officers with the fire extinguisher as a deliberate assault upon them that had the capacity to cause harm. His Honour noted that that conduct was of concern to the officers because they did not know what they had been sprayed with, or whether the substance was flammable.[11] (In making this finding, the learned sentencing judge also took into account the contents of the VIS, to which we have already referred.)
[11] WAB 251.
The learned sentencing judge regarded the fact that the house was dark at the time of the offences as aggravating their seriousness.[12] In so far as counts 1 and 2 were concerned, the learned sentencing judge regarded the use of the fire extinguisher as a weapon as aggravating the seriousness of the offences.[13] His Honour also found that when the appellant committed the assaults he knew that the police officers had, as part of their duties, attended his home to lawfully execute a search warrant, and that he knew that the use of the fire extinguisher as a weapon would interfere with their performance of their duties, and that that aggravated the seriousness of the offending.[14] As for count 3, the learned sentencing judge regarded the fact that the appellant used the accelerant in a confined space as aggravating the seriousness of that offence.[15]
[12] WAB 251.
[13] WAB 254.
[14] WAB 255.
[15] WAB 254 - 255.
There were few mitigating factors. The appellant was convicted after trial, and was ineligible for any discount for a plea of guilty. He was also not entitled to the benefit of youth. While the learned sentencing judge accepted that the appellant's offending followed his use of methylamphetamine, he recognised that that was not a mitigating factor.[16]
[16] WAB 253.
In so far as the appellant's criminal record was concerned, the appellant clearly did not have the benefit of prior good character as a mitigating factor. The learned sentencing judge characterised the appellant's criminal history as indicating a 'persistent defiance and disregard for the law'[17] and he had demonstrated a 'willingness to resort to violence' in the past.[18]
[17] WAB 253.
[18] WAB 253.
However, the learned sentencing judge did accept that, from 2005 until the present offences were committed, the appellant had 'stayed out of trouble and been gainfully employed with good employment in responsible positions'.[19]
[19] WAB 254.
In addition, his Honour accepted that the appellant had shown 'a belated degree of insight … regarding the circumstances of [his] offending'[20] and accepted that the appellant had expressed remorse for his conduct, albeit only recently.[21]
[20] WAB 254.
[21] WAB 255.
The learned sentencing judge concluded that the sentences for each of counts 1 and 2 should be a term of immediate imprisonment of 2 years, and that the sentence for count 3 should be a term of immediate imprisonment of 3 years. However, his Honour then had regard to the totality principle, and to the overall criminality of the offending involved in all of the offences, viewed in their entirety, and having regard to the circumstances of the case and matters referable to the appellant personally. He concluded that the total criminality of the offending warranted a total effective sentence of 4 years and 6 months' immediate imprisonment. To give effect to that sentence, he reduced the sentence he imposed on count 1 to 1 year and 6 months' immediate imprisonment, and ordered that the sentence for count 1 be served wholly cumulatively on the sentence for count 3, while the sentence for count 2 be served wholly concurrently with the sentence for count 3.
The appellant's sentence was backdated to commence on 1 November 2017 to take account of the time that the appellant had spent in custody, and the appellant was made eligible for release on parole.

The ground of appeal

The appellant's ground of appeal was expressed in the following terms:
The learned sentencing judge erred in law and his discretion miscarried in fact in ordering that the sentence of one year and six months imprisonment [sic] imposed in respect of Count 1 on the Indictment be made wholly cumulative upon the sentence of three years imprisonment [sic] imposed in respect of Count 3:
Particulars
(a)the offences the subject of Count 1 and Count 3 on the Indictment were committed almost simultaneously against the same victims so that it could be said that the two offences constituted a single transaction;
(b)the total effective sentence of four years and six months was in all the circumstances including circumstances personal to the Appellant out of proportion to the overall criminality of the behaviour of the Appellant;
(c)he placed too much weight on the potential danger to persons caused by the fire and to a victim impact statement supplied to the Court by one of the police officers and gave insufficient weight to:
(i)the favourable pre-sentence and psychological reports;
(ii)the fact that the Appellant had not broken the law since 2005;
(iii)the financial and emotional cost of the offending upon the Appellant and his partner;
(iv)the circumstances personal to the Appellant which led him to be addicted to methamphetamine at the time the offences were committed;
(v)the very serious health issues being faced by the Appellant's partner at the time of sentence.
The appellant does not challenge any of the individual sentences imposed on counts 1 to 3. His sole challenge is to the total effective sentence.
The particulars in paragraphs (a) to (c) of the ground of appeal allege discrete bases for the error said to have been made by the learned sentencing judge in reaching the total effective sentence of 4 years and 6 months' immediate imprisonment. It is convenient to deal separately with each of those alleged bases for that implied error, and to start by considering ground 1(b).

Ground 1(b)

Ground 1(b) represents the nub of the appeal. It is a complaint that the total effective sentence breached the first limb of the totality principle.

The appellant does not challenge any of the factual findings made by the learned sentencing judge in respect of the circumstances of the offending, with one exception.[22] Counsel for the appellant submitted that in so far as the learned sentencing judge concluded that the appellant started the fire, and that he threw accelerant on the fire to burn material related to the search warrant, there was no evidence to justify this conclusion. The basis for that submission was that 'there was a fire already burning in a wood stove in the kitchen which would have been a better proposition for burning evidence than starting another fire on a floor mat in the kitchen'.[23]
[22] Appellant's submissions [8]; appeal ts 2.
[23] Appellant's submissions [8].
With respect, that submission does not advance the appellant's case. In so far as count 3 is concerned, the State prosecutor had opened the prosecution case at trial on the basis that the appellant's intent to harm, for the purposes of s 304(2) of the Criminal Code, could be discerned from the appellant's intention to unlawfully endanger the life, health or safety of the police officers (cf s 304(3)(b) of the Criminal Code), or to prevent or hinder the doing of an act by a person who was lawfully entitled to do that act (cf s 304(3)(f) of the Criminal Code) in that he intended to stop the police officers from executing the search warrant in his home.[24] As we have said, the learned sentencing judge concluded, having regard to the evidence led at the trial, that the appellant started the fire to burn material that was related to the search warrant, and he also found that the appellant put the accelerant on the fire to accelerate the destruction of that material.[25] In other words, his Honour sentenced the appellant on the basis that his intent to harm lay in his intention to hinder the police officers in their execution of the search warrant, rather than in any intention on his part to endanger the lives, health or safety of the officers. That finding as to the appellant's intention to harm was favourable to the appellant.
[24] WAB 56.
[25] WAB 251.
Counsel for the appellant also contended that pouring the accelerant on the fire could have been characterised 'as an application of force directed towards the police officers' and could have been characterised as an assault on them rather than as an offence under s 304(2).[26] With respect, that submission was not to the point. The fact is that the appellant was convicted of the offence under s 304(2). The gravamen of that offence is discussed below.
[26] Appellant's submissions [3].
The principles in relation to the totality principle are well established. The first limb of the totality principle, which is called in aid in this appeal, was recently discussed in Thompson v The State of Western Australia.[27]
[27] Thompson v The State of Western Australia [2019] WASCA 68.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to the circumstances of the case (including those referable to the offender personally) and the total effective sentences imposed in comparable cases.[28] The total sentence will be reached by the exercise of the sentencing judge's discretion in relation to both the individual sentences imposed for each offence, and the extent (if any) to which those individual sentences are accumulated.
[28] Thompson [44]; Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed on other counts, while a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. However, the key question is whether the total effective sentence is excessive.[29]
[29] Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [41] (Buss JA, McLure P agreeing); Giglia v The State of Western Australia [2010] WASCA 9 [40].
In Thompson, this Court explained how common aggravating features in relation to multiple offences are taken into account in the application of the totality principle:[30]
The application of the first limb of the totality principle requires the sentencing judge to impose a total effective sentence which bears a proper relationship to the overall criminality involved in all of the offences committed by the offender. The offences must be viewed in their entirety, and the sentencing judge must take into account all relevant circumstances, including those referable to the offender personally and the total effective sentences imposed in comparable cases. Where an offender has committed multiple offences and there are common aggravating factors in relation to those offences, the sentencing judge must take that commonality into account in applying the first limb of the totality principle. However, the sentencing judge is not bound, merely by virtue of the commonality, to order that the individual sentences be served wholly or to a substantial extent concurrently.
[30] Thompson [68].
The learned sentencing judge clearly had regard to the totality principle. He reduced the sentence of 2 years which he would have imposed on count 1, when he structured the sentences so as to require that the sentence for count 1 be served cumulatively on the sentence for count 3.
In our view, it is not reasonably arguable that the total effective sentence of 4 years and 6 months' immediate imprisonment infringed the first limb of the totality principle, for the following reasons.
First, having regard to the facts and circumstances of the offending outlined above, the appellant's offending as a whole was very serious. It involved the commission of three offences which, individually, were serious by their nature, and constituted serious instances of offending of that kind.
Secondly, as we have already noted, there were few mitigating factors in this case.
Thirdly, the individual sentences imposed on each count were not challenged on the basis that they were excessive. They could not be regarded as manifestly excessive. In so far as the offence in count 3 is concerned, the offence created by s 304(2) does not require that bodily harm is actually caused to any person. It is sufficient that the life, health or safety of any person is, or is likely to be, endangered, by the act of the offender.[31] The factors relevant to sentencing for an offence under s 304(2) of the Criminal Code thus include the nature and seriousness of the offender's intent to harm; the nature and seriousness of the bodily harm caused to a particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety; and the potential (as distinct from the actual) consequences of the offender's conduct.[32] Moreover, the structure of s 304(2) reveals that the potential risk to life, health or safety may be equally as important as the actual harm caused by the person's act done with the intent to harm. If injury does occur, that may aggravate the offending. Where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant factor in the determination of the appropriate sentence.[33] However, the absence of any injury does not detract from the seriousness of the offending by virtue of the risk to the life, safety or health of any person.
[31] Criminal Code s 304(2)(b).
[32] Kaokula v The State of Western Australia [2016] WASCA 198 [63].
[33] Kaokula [62]; Darroch v The State of Western Australia [2018] WASCA 114 [34].
As we have mentioned, the learned sentencing judge found that the appellant's intent to harm was constituted by an intent to prevent or hinder the doing of an act by a person lawfully entitled to do that act, namely to prevent or hinder the police officers in their execution of the search warrant.[34] While the appellant's intent was not to endanger the life, health or safety of the police officers, his act of throwing accelerant onto the fire, in a confined space, and where the officers were in close proximity, was extremely dangerous, and placed the lives, health or safety of those officers at risk. The fact that the officers sustained only minor physical injuries as a result of the appellant's conduct does not detract from the fact that the offending the subject of count 3 was of a very serious nature.
[34] Criminal Code s 304(3)(f).
The offence in s 304(2) may be committed in a wide range of circumstances, and a wide range of sentences have been imposed for offences of this kind, as is confirmed by the review of the authorities in Penny v The State of Western Australia.[35] There is no sentencing tariff for this offence.[36] Although no case was identified which was factually identical to this one, the decision in Kaokula v The State of Western Australia[37] is a useful comparator in that it involved some similar features. In that case, one offender poured petrol onto the car in which the victims (a man and his young child) were driving, while the other offender, who was nearby, lit a cigarette lighter, which sparked but blew out in the wind. As a result, the petrol did not ignite, but there was clearly a risk that it might have ignited and caused serious injury or death to the victims. However, there were also some significant distinguishing features in Kaokula, which made the offending more serious than in the present case, including the fact that the offenders intended to endanger the life, health or safety of the adult victim and intended that he would be seriously burnt, the premeditation in the offending, and the fact that one of the two victims who was placed in danger was a child. The offenders were sentenced to terms of imprisonment of 6 years and 2 months, and 5 years and 8 months, respectively. Allowing for the differences in the two cases, the sentence imposed in this case on count 3 was broadly consistent with the sentences imposed in Kaokula.
[35] Penny v The State of Western Australia [2016] WASCA 52 [33] - [40].
[36] Darroch [38].
[37] Kaokula v The State of Western Australia [2016] WASCA 198.
As for the sentences imposed for counts 1 and 2, the offending in respect of these two counts was also serious. In spraying the fire extinguisher onto the two police officers, the appellant clearly sought to impede them in their exercise of the search warrant. In the case of offences involving assaults on police officers, to resist or hinder police officers in the performance of their lawful duties, deterrence, including general deterrence, is an important sentencing consideration.
The offence in s 318 of the Criminal Code may also be committed in a range of circumstances, and so may result in a range of sentences. The decision in Alford v The State of Western Australia[38] is a useful comparator because it involved some similar features, albeit that it involved more serious instances of this offence. The offender was convicted of two offences under s 318(1)(d) which were committed when he pointed a revolver at two police officers who had entered his home to execute a search warrant. He refused to lower the gun, and was lucky not to have been shot by the officers. He pleaded guilty and received a significant discount; showed some, albeit belated remorse; had recently experienced the death of a close family member; had been using illicit substances; and had a prior criminal record, but presented a low risk of violent re-offending. The police officers suffered ongoing emotional trauma as a result of the experience. The offender was sentenced to 2 years' immediate imprisonment on each count, reduced from 3 years' imprisonment on totality grounds, and the sentences were ordered to be served cumulatively. His appeal on totality grounds was dismissed. Allowing for the distinguishing features of that case, the sentences imposed on counts 1 and 2 were broadly consistent with those imposed in Alford.
[38] Alford v The State of Western Australia [2018] WASCA 186.
Fourthly, the offending the subject of counts 1 and 2 represented quite discrete conduct by the appellant, albeit that it took place within one episode in which the police officers endeavoured to execute the search warrant. The offending the subject of counts 1 and 2 clearly added to the criminality of the offending the subject of count 3. Having regard to the individual sentences imposed, a degree of accumulation between the sentences for count 1 (or counts 1 and 2) on the one hand, and count 3 on the other hand, was warranted to reflect the overall criminality of the appellant's conduct.
We are satisfied, after evaluating all of the relevant facts and circumstances and all relevant sentencing considerations, and having regard to the maximum penalty for the offences in counts 1 to 3, the seriousness of the offending, the importance of deterrence in relation to offending of this kind, the general standards of sentencing applicable to these offences, and to the matters of mitigation including the appellant's personal circumstances and antecedents, that the total effective sentence imposed was not unreasonable or plainly unjust. In our view the total effective sentence of 4 years 6 months' immediate imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in the whole of his offending viewed in its entirety and having regard to the circumstances of the case (including those referable to the appellant personally).
In view of this conclusion, the remaining bases for ground 1 cannot be sustained. Nevertheless, it is appropriate to explain briefly why, independently, they have no merit.

Ground 1(a)

The essence of the contention in ground 1(a) is that the learned sentencing judge erred in making the sentence for count 1 cumulative on the sentence for count 3, so as to reach the total effective sentence of 4 years and 6 months' immediate imprisonment.
An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order to the contrary.[39] In that event, the sentencing court has the discretion to order that one fixed term be served cumulatively, or partly concurrently, with another fixed term.[40]
[39] Sentencing Act 1995 (WA) s 88(2).
[40] Sentencing Act 1995 (WA) s 88(3).
A decision in the exercise of that discretion as to whether a sentence for a fixed term should be served cumulatively, or partly concurrently, with another fixed term will not constitute an independent ground for appellate intervention. Instead, the question for the appellate court is whether the total effective sentence imposed was unreasonable or plainly unjust. However, in a case of that kind, a conclusion that the total effective sentence was unreasonable or plainly unjust may involve the implicit conclusion that the sentencing court erred on the question of accumulation.
The appellant's contention was, in effect, that having regard to the 'one‑transaction rule', an order for accumulation was not warranted. Counsel for the appellant emphasised that counts 1 and 3 were committed at virtually the same time and at the same place. He submitted that the offences the subject of counts 1 and 3 'were part of a multifaceted attempt to drive the police officers out of the house'.[41]
[41] Appellant's submissions [4].
The one transaction rule has been considered by this court on many occasions. In Schishka v The State of Western Australia[42] Martin CJ (with whom Buss P & Mazza JA agreed on this issue) summarised the operation of that 'rule' as follows:
It is well established that the description of the principles grouped under this heading as a 'rule' is a misnomer, as they are nothing more than a working guide to the exercise of the sentencing discretion. Generally speaking, if the offences are all part of one multi-faceted course of criminal conduct which, taken together, constitutes a single invasion of the same legally protected interest, concurrency of sentences may be appropriate. However, the fact that the offences are closely connected in point of time, or even committed simultaneously, does not necessarily mean that they should be considered as a single transaction. Further, even if the offences are properly considered part of one transaction, the sentencing judge must always consider whether the requirement that the sentences imposed be proportional to the total criminality involved might demand cumulative or partly cumulative terms. (footnotes omitted)
[42] Schischka v The State of Western Australia [2015] WASCA 15 [25].
As we have already noted, the conduct involved in the offending the subject of counts 1 and 2 was distinct from that involved in count 3, albeit that the offences were committed on the same occasion. Complete or partial accumulation between the sentences imposed for counts 1 and 2, and that imposed for count 3, was consistent with the one-transaction rule. In any event, the sentencing judge's exercise of discretion in relation to the accumulation of counts 1 and 3 cannot be viewed in isolation from his Honour's exercise of discretion with respect to the individual sentences imposed for counts 1 and 3, and to his Honour's consideration of the totality principle.
For completeness, it is appropriate to deal with one further aspect of the submissions of counsel for the appellant in relation to this aspect of the ground of appeal. Counsel for the appellant emphasised that in the course of written submissions made in the sentencing hearing, counsel for the State conceded that the sentences for counts 1 and 2 could be made concurrent with the sentence for count 3.[43] However, the submission by counsel for the State as to concurrency was premised on counsel's submission as to the seriousness of the offending in count 3, and in that respect, had regard to the relevance of the totality principle.[44] Furthermore, counsel for the State acknowledged that it was a matter for the court as to how the sentence was structured.[45] In any event, while clearly the submissions of an offender and of the State may assist a sentencing judge in the exercise of his or her discretion, the court is not bound by the views of either party as to the appropriate sentence for a particular offence,[46] or as to the way that the sentences for multiple offences should be structured to reach a total effective sentence.

Ground 1(c)

[43] Appellant's submissions [5].

[44] State's Outline of Sentencing Submissions (at sentencing hearing) [15].

[45] WAB 246.

[46] See, eg, Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [47] - [49] (French CJ, Hayne, Kiefel, & Bell JJ).

The particulars set out in ground 1(c) contend that the learned sentencing judge placed too much weight on two factors - namely the potential danger to persons posed by the fire, and to the VIS - and insufficient weight to five other factors. Counsel for the appellant submitted that 'in combination the over emphasis on the danger to persons assaulted by the fire and the victim impact statement, and the under emphasis on the matters [personal to the appellant] combined with the errors of fact in relation to the origin of the fire and the purpose of its acceleration by the appellant show material error which enlivens the jurisdiction of this Court'.[47]
[47] Appellant's submissions [13].
There is no doubt that in the course of his consideration of all of the relevant sentencing factors, the learned sentencing judge took into consideration both the potential danger to those exposed to the fire,[48] and the VIS.[49] For the reasons explained at [56], the potential danger to the police officers posed by the appellant's conduct in throwing the accelerant onto the fire was clearly relevant. The VIS was also clearly a relevant consideration in the exercise of his Honour's sentencing discretion.[50]
[48] WAB 250 - 251
[49] WAB 251 - 252.
[50] Sentencing Act 1995 (WA) s 24(1).

It is also apparent that the learned sentencing judge did not rely upon those factors to the exclusion of other relevant considerations. There was no failure to exercise the sentencing discretion in that respect.
In so far as the appellant contends that the learned sentencing judge gave insufficient weight to particular factors, the learned sentencing judge referred to each of those factors, namely:
(a)the favourable aspects of the pre-sentence and psychological report, including the assessment that the appellant presented a low risk of re-offending.[51] However, his Honour clearly, and correctly, took into account the totality of those reports, including the psychologist's view that if the appellant resumed the use of illicit substances, his risk of re-offending in a violent manner would increase;[52]
(b)the fact that the appellant had not been convicted of any offence between 2005 and the date of the present offences.[53] Counsel for the appellant submitted that his Honour's conclusion that the appellant's criminal history demonstrated 'a persistent defiance and disregard of the law'[54] was unwarranted.[55] However, as his Honour appreciated, the fact remained that the appellant had a prior criminal record,[56] and was not entitled to the benefit, in mitigation, of prior good character;
(c)the financial and emotional cost of the offending upon the appellant and his partner.[57] However, as his Honour noted, the fact that the damage caused was not covered by insurance was due to the appellant's deliberate conduct in adding accelerant to the fire;[58]
(d)the circumstances personal to the appellant which led him to be addicted to methylamphetamine at the time the offences were committed.[59] However, as the learned sentencing judge rightly acknowledged, the appellant was responsible for his having been affected by methylamphetamine, and the fact that he was drug affected was not a mitigating factor;[60] and
(e)the very serious health issues being faced by the appellant's partner at the time of sentence.[61] However, other than in an exceptional case, hardship to an offender's family will generally not warrant mitigation of a sentence.[62] It was not suggested that this was such a case.
[51] WAB 252 - 253.
[52] WAB 253.
[53] WAB 254.
[54] WAB 253.
[55] Appellant's submissions [10]; appeal ts 5 - 7.
[56] WAB 253.
[57] WAB 250.
[58] WAB 250.
[59] WAB 253.
[60] WAB 253.
[61] WAB 252.
[62] cf The State of Western Australia v Chapman [2012] WASCA 203 [119] - [124] (Beech JA, Buss & Mazza JJA agreeing).
It cannot be said that the learned sentencing judge failed to take those considerations into account. Nor has any error been shown in his Honour's understanding of those considerations. The appellant has not established any failure by the learned sentencing judge to exercise the discretion conferred on him in that respect.
The contention in this part of ground 1 thus amounts to nothing more than a contention that the learned sentencing judge gave too much weight to some factors, and too little weight to other factors.
Ordinarily, a complaint that a sentencing judge has given too much, or insufficient, weight to relevant sentencing considerations will not give rise to an express error which enlivens the appellate court's jurisdiction to intervene. A weighting error will only constitute an appellable error if it amounts to a failure by the sentencing judge to exercise the discretion conferred upon the judge. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.[63]
[63] Jneid v The State of Western Australia [2018] WASCA 67 [98].
As we are not persuaded that the outcome of the sentencing discretion was unreasonable or plainly unjust in this case, or that the learned sentencing judge failed to exercise the discretion conferred upon him, the contention in particular 1(c) cannot be sustained.

Orders

For these reasons, the following orders should be made:
1.Leave to appeal is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FP
Associate to the Honourable Justice Pritchard
21 MAY 2019