Rijavec v WA Police - [2025] WASC 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RIJAVEC -v- WA POLICE [2025] WASC 243
CORAM:   SEAWARD J
HEARD:   27 MAY 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   SJA 1021 of 2025
BETWEEN:   SHANE PETER MARTIN RIJAVEC
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M MEDCALF
File Number            :   PER/AM/9014/1995

Catchwords:

Appeal against sentence - Where the appellant has spent time on remand in custody - Whether the sentencing Magistrate took time spent on remand in custody into account - Totality principle - Whether there was an implied error in the total effective sentence - Whether the sentencing was unreasonable or unjust

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Firearms Act 1973 (WA) (rep)
Misuse of Drugs Act 1981 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic (Vehicles) Regulations 2014 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Weapons Act 1999 (WA)

Result:

Application for extension of time to appeal is granted
Leave to appeal is granted in relation to ground 1
Leave to appeal is refused in relation to grounds 2 and 3
Appellant resentenced on charges FR 623/23, FR 4743/24, FR 4758/24, FR 6554/24

Category: B

Representation:

Counsel:

Appellant	:	Ms K A Gorski
Respondent	:	Ms T Wilker

Solicitors:

Appellant	:	Legal Aid of Western Australia
Respondent	:	State Solicitor's Office

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

Allen v The State of Western Australia [2017] WASCA 203
Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529
Evans v Anderson [2019] WASC 178
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huynh v The State of Western Australia [2012] WASCA 8
Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11
Kambabi v The State of Western Australia [2019] WASCA 44
Kelly v The State of Western Australia [2024] WASCA 116
Knights v Ward [2022] WASC 267
Larussa v The State of Western Australia [2023] WASCA 62
Lemmon v Walker-McLean [2019] WASC 475
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Matthews v Whalley [2010] WASC 165
Mears v Holleman [2010] WASC 39
Neves v Rogers [2013] WASC 440
R v AA [2006] NSWCCA 55
Rossiter v Francisty [2005] WASC 270
Salkilld v Western Australia [2017] WASCA 168
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sheiner v Roberts [2009] WASC 281
Stone v State of Western Australia [2010] WASCA 80
Strahan v Brennan [2014] WASC 190
Thomson v Brock [2013] WASC 289
Trajkoski v Western Australia [2018] WASCA 176
Ugle v The State of Western Australia [2022] WASCA 135
Wilson v Director of Public Prosecutions [2021] WASC 404
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
Wimbridge v The State of Western Australia [2009] WASCA 196
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

SEAWARD J:

The appellant, Mr Shane Peter Martin Rijavec, was convicted on his plea of guilty to 26 offences, for which he was sentenced to a total effective sentence of 19 months' imprisonment. Mr Rijavec had also spent the preceding 79 days in custody.
Mr Rijavec seeks leave to appeal his sentence out of time. The appeal was made the subject of an urgent appeal order. For the reasons set out below, I will allow the appeal and resentence Mr Rijavec.

Background

Charges and procedural matters

Mr Rijavec was charged with the following 26 offences, and on 3 December 2024, Mr Rijavec was sentenced as set out in the below table:

No.	Charge	Description	Maximum Penalty	Sentence
First instance of offending - 16 January 2023
1.	FR 623/23	No authority to drive (suspended)	Dealing with breach of SIO of 8 months' suspended for 2 years Fine: $1,000 - $4,000 (20 PU - 80 PU) and 18 months' imprisonment Licence disqualification minimum 9 months - maximum 3 years	4 months' imprisonment (CM) 9 months' disqualification (CM)
Second instance of offending - 8 March 2024
2.	FR 4294/24	Possession of stolen or unlawfully obtained property	7 years' imprisonment Summary conviction penalty: 2 years' imprisonment and fine of $24,000	$200 fine Forfeiture order
Third instance of offending - 9 May 2024
3.	FR 4743/24	Possession of firearm – 12 gauge shotgun	7 years' imprisonment Summary conviction penalty: 3 years' imprisonment and a fine of $12,000	4 months' imprisonment (CC)
4.	FR 4744/24	Possess ammunition 6x.22 calibre ammunition rounds	5 years' imprisonment Summary conviction penalty: 3 years' imprisonment and a fine of $12,000	Fine $2000 (global)
5.	FR 4745/24	Possess ammunition 29 x 12g shotgun rounds	5 years' imprisonment. Summary conviction penalty: 3 years' imprisonment and a fine $12,000	Fine $2000 (global) Order for destruction
6.	FR 4746/24	Possess a prohibited drug, (Lysergic Acid Diethylamide -LSD)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
7.	FR 4747/24	Possess a prohibited drug (methylamphetamine)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
8.	FR 4748/24	Possess a prohibited drug (cannabis)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
9.	FR 4749/24	Possess 2 smoking implements containing methylamphetamine	3 years' imprisonment or a fine of $36,000 or both	Fine $2000 (global)
10.	FR 4750/24	Possess 3 cone pieces containing cannabis	3 years' imprisonment or a fine of $36,000 or both	Fine $2000 (global)
11.	FR 4751/24	Possess prohibited drug (methylamphetamine)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
12.	FR 4752/24	Possess prohibited drug (cannabis)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
13.	FR 4753/24	Possess 2 cone pieces containing prohibited drug (cannabis)	3 years' imprisonment or a fine of $36,000 or both	Fine $2000 (global)
14.	FR 4754/24	Possess prohibited drug (cannabis)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
15.	FR 4755/24	Possess 2 smoking implements containing cannabis	3 years' imprisonment or a fine of $36,000 or both	Fine $2000 (global)
16.	FR 4756/24	Possess a controlled weapon (oleoresin capsicum spray)	2 years' imprisonment and a fine of $24,000	Fine $2000 (global)
17.	FR 4757/24	Possess prohibited drug (methylamphetamine)	2 years' imprisonment or a fine of $2,000 or both	Fine $2000 (global)
18.	FR 4758/24	No authority to drive (suspended)	Fine of $1,000 - $4,000 (20 PU - 80 PU) and 18 months' imprisonment. Disqualification of licence minimum 9 months - maximum 3 years	4 months' imprisonment (CM) 9 months' disqualification (CM)
Fourth instance of offending - 12 June 2024
19.	FR 6554/24	Careless driving causing bodily harm	3 years' imprisonment or $36,000 fine (720 PU) Licence disqualification minimum 3 months	3 months' imprisonment (CM) 3 months' licence disqualification
20.	FR 6555/24	No authority to drive (suspended)	Fine of $1,000 - $4,000 (20 PU - 80 PU) and 18 months' imprisonment. Disqualification of licence minimum 9 months - maximum 3 years	8 months' listed as CC, but should be CM (head sentence) 9 month disqualification (CM)
21.	FR 6556/24	False plate	Fine of $2,500	$400 fine
22.	FR 6557/24	Plate not able to be identified	Fine of $3,200	$150 fine
23.	FR 6558/24	Possess prohibited drug, methylamphetamine	2 years' imprisonment or a fine of $2,000 or both	$200 fine (global)
24.	FR 6559/24	Carried a prohibited weapon (knuckleduster)	2 years' imprisonment and a fine of $24,000	$200 fine (global)
25.	FR 6560/24	Carried a controlled weapon (capsicum spray)	2 years' imprisonment and a fine of $24,000	$200 fine (global)
26.	FR 6561/24	Unlicensed vehicle	Fine of $500 and half annual licence fee	$150 fine with $43 fee

The total effective sentence consisted of fines in the amount of $3,100 and a term of 19 months' imprisonment, with eligibility for parole.
Charge FR 623/23 (the first charge in the above table) consists of a charge of driving a motor vehicle whilst not being authorised to drive. This offence occurred on 16 January 2023, and on 13 March 2023 Mr Rijavec was sentenced to a term of imprisonment of 8 months, suspended for 2 years. The terms of that suspended imprisonment order were breached by the new offences and, accordingly, on 3 December 2024 in addition to being sentenced for these new offences, Mr Rijavec was also dealt with pursuant to s 80 of the Sentencing Act 1995 (WA) (Sentencing Act) in relation to this first offence.
The new offences first came before the magistrate for sentencing on 16 September 2024. At that hearing the charges were put to Mr Rijavec; the statements of material facts were read to the court; defence counsel gave the plea in mitigation; and the prosecutor addressed the court on sentence. The sentencing hearing was then adjourned to enable the preparation of a pre‑sentence report, a psychiatric report and a psychological report. Mr Rijavec was remanded in custody on that date, and so by the time of his sentencing on 3 December 2024 he had spent a total of 79 days in custody.

Offending behaviour

The nature of the offending the subject of the charges was not in dispute between the parties.

First instance of offending

On 16 January 2023, the police conducted a stop on the vehicle being driven by Mr Rijavec, who was the only occupant in the vehicle at that time.
Mr Rijavec was also not authorised to drive a motor vehicle and inquiries revealed that Mr Rijavec's motor vehicle driver's licence was suspended with two current revocations by the Fremantle Magistrates Court for driving whilst disqualified. The suspensions commenced on 2 March 2022, and Mr Rijavec was not at the time eligible to drive again until after 6 April 2024. Mr Rijavec was aware he was subject to the revocation and that his motor driver's licence was suspended. Mr Rijavec's explanation when spoken to by police was 'I have driven from the river to here as I'm staying here tonight'.
Mr Rijavec as charged with one count of driving a motor vehicle whilst not being a person authorised to drive and whose authority to drive was at the time suspended contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act 1974 (WA) (RTA) (charge FR 623/23).

Second instance of offending

On 8 March 2024, in Hamilton Hill, Mr Rijavec was at the adult mega store in Hamilton Hill when he took a box containing a Sunrise lace corset strap on harness valued at $89.95 from the shelf and handed it to another person who placed it under their dress. Mr Rijavec and the other person then left the store, and the item was not paid for. Mr Rijavec was interviewed and collected the stolen item from his apartment and gave it to the police.
Mr Rijavec was charged with one count of being in possession of a stolen item (with a retail price of $89.95) contrary to s 417(1) of the Criminal Code (charge FR 4294/24).

Third instance of offending

The third instance of offending occurred on 9 May 2024, in Coolbellup. Officers from the Drug and Firearms Squad executed a drug search warrant at Mr Rijavec's home address. Mr Rijavec was not present and the search was conducted with an independent person present. The following were located during the search:
(a)a 12-gauge shotgun with the barrel sawn off. Due to the alteration, it could be used with one hand (charge FR 4743/24);
(b)six .22 calibre ammunition rounds (FR 4744/24); and
(c)29 x 12-gauge shotgun rounds (FR 4745/24).
Mr Rijavec was charged with possessing these items, whilst not being the holder of a firearms licence or permit, contrary to s 19(1)(c) of the Firearms Act 1973 (WA) (rep).
Police officers also located the following additional items during the search:
(a)one Lysergic Acid Diethylamide (LSD) tab (FR 4746/24);
(b)0.1gram of methylamphetamine (FR 4747/24);
(c)one gram of cannabis (FR 4748/24);
(d)two glass pipe smoking implements in which there was a prohibited drug (FR 4749/24); and
(e)three cone pieces in which there was a prohibited drug (FR 4750/24).
Mr Rijavec was charged with possessing the first three mentioned items contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (MD Act) and the latter two items contrary to s 7B(6) of the MD Act.
Further, on 9 May 2024, police officers from the Drug and Firearms Squad executed a drug search warrant on Mr Rijavec's boat. Mr Rijavec was not present, and the following were located:
(a)approximately 0.1 gram of methylamphetamine (FR 4751/24);
(b)two grams of cannabis (FR 4752/24); and
(c)two cone pieces in which there was a prohibited drug (FR 4753/24).
Also, on 9 May 2024, police officers from the Drug and Firearms Squad conducted a traffic stop on a vehicle Mr Rijavec was driving. Mr Rijavec was driving that vehicle whilst his authority to drive was suspended, and was charged with one count of driving a motor vehicle whilst not being a person authorised to drive and whose authority to drive was at the time suspended contrary to s 49(1)(a) and (3)(c) of the RTA (charge FR 4758/24).
The police officers then searched Mr Rijavec's vehicle located the following:
(a)one gram of cannabis (FR 4754/24);
(b)two smoking implements (FR 4755/24);
(c)one capsicum spray (FR 4756/24); and
(d)0.1 gram of methylamphetamine (FR 4757/24).
Mr Rijavec was charged with possessing items (a) and (d) contrary to s 6(2) of the MD Act; possessing item (b) contrary to s 7B(6) of the MD Act; and possessing item (c) contrary to s 7(1) of the Weapons Act 1999 (WA).

Fourth instance of offending

On 12 June 2024, police were stationary at the traffic control lights at Leach Highway and Stock Road in Willagee. A black Honda motorcycle was observed. The registration plate on the motorcycle was in a position where it could not be read, and the motorcycle was observed to continue on Leach Highway in an easterly direction. The rider of the motorcycle attempted to overtake several vehicles and collided with the left‑hand side rear of a van. Both the rider and the passenger fell off the motorcycle.
The police activated their lights and stopped behind the motorcycle. Mr Rijavec, who was riding the motorcycle, and his passenger attempted to get back on the motorcycle and ride away before the police intervened. The crash caused skin loss and burns to the passenger on the motorcycle, to the passenger's upper right thigh and the lower parts of both legs.
Mr Rijavec was charged with the following driving related offences:
(a)careless driving causing bodily harm contrary to s 59BA(1) of the RTA (FR 6554/24);
(b)driving whilst his authority to drive was suspended, contrary to s 49(1)(a) and (3)(c) of the RTA (FR 6555/24);
(c)driving a vehicle on a road that bore a false registration plate contrary to s 36(2)(e) of the Road Traffic (Administration) Act 2008 (WA) (FR 6556/24);
(d)driving a vehicle on a road where the registration plate was obscured contrary to reg 120(7) of the Road Traffic (Vehicles) Regulations 2014 (WA) (FR 6557/24); and
(e)using a vehicle on a road whilst unlicensed contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA) (FR 6561/24).
Mr Rijavec was searched, and the following were located in his jacket:
(a)a small clip seal bag with 0.01 of a gram of methylamphetamine (FR 6558/24);
(b)a knuckle duster (FR 6559/24); and
(c)a can of capsicum spray (FR 6560/24).
Mr Rijavec was charged with possessing item (a) contrary to s 6(2) of the MD Act, and items (b) and (c) contrary to s 6(1)(b) and s 7(1) of the Weapons Act respectively.

Plea in mitigation / antecedents

The plea in mitigation for the first charge was made on 13 March 2023. Otherwise, the plea in mitigation for all other charges was made on 16 September 2024.
Key matters relevant to the present appeal include the following.
At the time of the offending the subject of the first charge, Mr Rijavec was 51 years old. For the remaining offending he was aged between 52 and 53 years. Mr Rijavec was born in Queensland, and moved with his mother to Perth when he was 2 years old after his parents separated.
Mr Rijavec was then raised by his mother and stepfather, both of whom remain supportive. Mr Rijavec was diagnosed with ADHD when he was around 8 or 9 years of age. Mr Rijavec completed high school until year nine, before attending agricultural school in Gnowangerup at around 15 years of age. During his time at this school, he was beaten by teachers and other students and it was a very rough environment. Mr Rijavec was subject to sexual and physical abuse during his time there and is currently awaiting assessment of a redress payment application. Mr Rijavec left school at 16 years of age.
Mr Rijavec undertook some work on a pig farm immediately after leaving school, before returning to Perth for a short time and then moving to work as a station hand in northern Western Australia. Mr Rijavec also worked for a period in a nightclub in Fremantle.
Mr Rijavec has four children and is a grandfather and is involved in the lives of his children and grandchildren.
In 2016, Mr Rijavec was the victim of an uncharged home invasion that left him suffering significant facial injuries requiring hospitalisation and surgery and resulted in the loss of several teeth.
Mr Rijavec suffers from undiagnosed PTSD following his time at agricultural school and the home invasion. This can sometimes lead to irrational decision‑making.
Mr Rijavec has been on and off medication throughout his life, however had been unmedicated for a significant period of time prior to the offending.
Prior to sentencing, Mr Rijavec was working two jobs. First, at Optus Stadium where Mr Rijavec would work once or twice a month, packing stages in and out for various events. Secondly, as an excavator driver knocking down houses approximately three days per week.
Mr Rijavec was introduced to smoking cannabis at around the age of 10 and since that point has struggled with drug use and also struggles with alcohol misuse.
In relation to FR 623/23, at the sentencing on 13 March 2023, counsel submitted that at the time of the offending Mr Rijavec had been homeless and had been living on a boat. His mother had paid for him to stay at the Tradewinds Hotel in Fremantle, and he had used his goddaughters' car to move his belongings and himself to the hotel. His offending was not aggravated other than in relation to the vehicle not being licenced and having plates that did not belong to it. By the time of sentencing, Mr Rijavec had got himself settled in more substantial accommodation and had a got a new job - which had been his first job for some time. Counsel submitted that the sentence should be suspended to enable Mr Rijavec to continue his new employment.
In relation to the remaining individual offences, Mr Rijavec's counsel on 16 September 2024 submitted that:
(a)in relation to the possession of stolen property, Mr Rijavec handed the property to another person at the shop and that other person then took the property. However, Mr Rijavec accepted the property was at his house;
(b)in relation to the possession of the 12 gauge shotgun, Mr Rijavec bought it off a friend two weeks prior at a pub when he was drunk. Mr Rijavec did this because he was then living in state housing and was having significant issues with neighbours, including multiple people entering his house during the night and threatening him and his partner, and also stealing property. Mr Rijavec found this extremely triggering, given his history and his ADHD. The gun had never been used and Mr Rijavec accepted through counsel that he should not have purchased it. The ammunition came with the gun when he purchased it;
(c)in relation to all drugs found, Mr Rijavec accepted that he has and does use drugs for personal use and has been a recreational user throughout his life. The amounts of the various drugs found were all small or trace amounts;
(d)in terms of the driving charge on 9 May 2024, Mr Rijavec had left his house earlier that morning prior to the police attending, in the context of being extremely frightened by the neighbours and he was driving to see his daughter when stopped by police; and
(e)in terms of the offending on 12 June 2024, Mr Rijavec purchased the motorcycle for about $2,500 and the motorcycle was in the same state it was in when he purchased it, although he accepted that they were the incorrect plates and they were in a position where they could not be seen. Mr Rijavec's case is that he was not weaving between lanes, but rather was trying to merge lanes as was the car in front of him. Mr Rijavec then bumped into the back of the car, causing the motorcycle to fall and Mr Rijavec and his passenger fall off. The passenger being a long term friend of Mr Rijavec. Whilst the passenger did receive some injuries, she did not need to go to hospital and the injuries were not serious. Mr Rijavec's reason for riding the motorcycle was that he had just purchased it.

Mr Rijavec's counsel accepted that a term of immediate imprisonment was the only appropriate disposition, and that specific and general deterrence were needed. Mr Rijavec's counsel did not submit that triggering the imposition of suspended imprisonment order would be unjust. Mr Rijavec's counsel submitted that totality would be a consideration for the magistrate.
Mr Rijavec's counsel submitted that pleas were entered at an early opposition and the sentences for the various offences should be made concurrent. Mr Rijavec's counsel outlined that Mr Rijavec had been in custody since 15 September 2024. Mr Rijavec expressed his remorse through his counsel.
Mr Rijavec's criminal record is also relevant. Mr Rijavec has an extensive criminal record dating back to the 1980s, which includes previous sentences of imprisonment. Relevant for the present appeal, is that Mr Rijavec has:
(a)20 previous convictions for driving whilst his licence was suspended/without a driver's licence;
(b)12 previous convictions for driving or using an unlicensed vehicle;
(c)seven previous convictions for driving a vehicle with false licence plates;
(d)11 previous offences for firearms or weapons offences;
(e)one previous conviction for careless driving;
(f)two convictions for reckless driving; and
(g)five previous convictions for possessing stolen or unlawfully obtained property.
Mr Rijavec also has an extensive record for drug possession and related charges.
I observe that when sentencing Mr Rijavec, the prosecutor on 16 September 2024 submitted that the driving without authorisation offence FR 4758/24 (which occurred on 9 May 2024) was conviction nine for sentences purposes.[1] When the sentencing resumed on 3 December 2024, the (different) prosecutor described the two new driving without authorisation offences as being Mr Rijavec's 21^st and 22^nd convictions.[2] On 3 December 2024, her Honour described the offences as being the 9^th and 10^th for sentencing purposes.[3]
[1] ts 16/09/2024, 12.
[2] ts 3/12/2024, 6.
[3] ts 3/12/2024, 10.
It is somewhat unclear as to how the various calculations of prior offences were arrived at. Mr Rijavec had a total of 12 previous convictions of driving whilst suspended under s 49(1)(a) and s 49(3)(c) of the RTA, dating back to March 2008. Prior to this time, Mr Rijavec had a total of eight offences of driving whilst suspended under earlier provisions in s 49(1)(a) and s 49(2)(c) of the RTA.
The precise calculation may be associated with whether the offences prior to 2008 are taken into account and how many offences are counted if Mr Rijavec was sentenced for more than one offence on the same day. The precise calculation may also be affected by s 107 of the Road Traffic (Administration) Act 2008 (WA), which provides that when a penalty for a road traffic offence depends on whether the person has been convicted previously of an offence, any previous offence recorded more than 20 years prior is not counted. In relation to the latter matter, in Crocker v Vinicombe Fiannaca J considered the application of s 107 and concluded that it was relevant to determining whether an offence was a prior offence for the application of the applicable penalty, but did not prevent a court from considering, as part of the offender's general antecedents, convictions that were recorded more than 20 years before the commission of the present offence.[4]
[4] Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529 [66].
In the present case, the precise number does not affect the question of whether Mr Rijavec has a sufficient number of previous offences, and therefore is relevant generally as part of Mr Rijavec's antecedents.

Reports

The sentencing on 16 September 2024 was adjourned to enable the preparation of a number of reports.

Psychiatric Report prepared by Dr Sam Calvin, dated 18 November 2024

Dr Calvin's report recounts Mr Rijavec's history as disclosed to him. It contains some additional information than was included in the original plea in mitigation.
In terms of Mr Rijavec's ADHD diagnosis, Dr Calvin records that he was first diagnosed with ADHD at around 13 or 14 years of age, before again being diagnosed with adult ADHD at around 26 years of age. At this stage, Mr Rijavec was prescribed dexamphetamine which he adhered to for 10 years and found beneficial in terms of improved decision making and overall functioning. However, this medication was discontinued after he was found in possession of cannabis.
In terms of drug and alcohol use, Dr Calvin records a history of cannabis use since the age of 10 and excessive alcohol consumption at around 16 ‑ 17 years of age. In his twenties, Mr Rijavec began injecting stimulants, specifically amphetamines between the ages of 20 ‑ 25, before ceasing all drug use after his diagnosis with adult ADHD at age 26. Mr Rijavec then relapsed in his early 30s.
Mr Rijavec attributed his offending behaviour to a fear for his personal safety and poor decision-making exacerbated by unmanaged ADHD symptoms and substance abuse.
Dr Calvin's primary diagnosis was of a significant substance use disorder. Dr Calvin opines that Mr Rijavec's substance use patterns indicate:
a progression from experimentation to regular and heavy use, leading to dependency. He attempted to self medicate – using cannabis to alleviate anxiety and believing stimulants improved his cognitive function and sleep, possibly to manage ADHD symptoms. However, substance use interfered with his mental health treatment; his ADHD medication was discontinued after he was found with cannabis, leading to mood fluctuations and feelings of misunderstanding.
Dr Calvin concludes that alcohol and drugs were major contributors to violent actions, including past assaults on former partners and attempts at rehabilitation were hindered by continued substance use.
The report states that Mr Rijavec's background reveals several predisposing elements that have contributed to his condition and a potential genetic predisposition to substance dependence, as evidenced by his father's history of heavy drug use.
Dr Calvin states that:
His current difficulties are perpetuated by several factors. Continued use of cannabis and methamphetamines maintains cognitive impairment, mood instability, and poor judgment, hindering his ability to make positive changes. Antisocial personality traits, such as impulsivity, aggression, minimisation of offences, and a propensity for violence, sustain his involvement in criminal activities. Unemployment and financial instability contribute to low self-worth and reinforce reliance on maladaptive coping mechanisms like substance use.
In terms of the relationship between Mr Rijavec's mental illness and his offending, Dr Calvin concludes that:
Mr Rijavec's offending behaviour appears to be the result of an interplay of factors rooted in his childhood developmental issues, substance abuse and social instability. These factors set the stage for a pattern of maladaptive coping mechanisms.
There does not appear to be any direct causal link between a specific psychiatric diagnosis and his offending. It seems that long-term substance abuse, in the background of personality vulnerabilities and childhood developmental issues, has contributed to a pattern of impaired judgement and reckless actions.

Psychological Report prepared by Jane Sampson, dated 11 November 2024

Ms Sampson's report recounts Mr Rijavec's history as explained to Ms Sampson.
Ms Sampson recorded the results of the Basic Personality Inventory, being a self‑administered questionnaire used to assess personality and psychopathology that was administered to Mr Rijavec. The results indicated three significant elevations, being:
(a)Deviation - indicative of chronic offending, instability and substance use;
(b)Impulse expressions - being demonstrative of impulsivity in a manner that may be dangerous to self or others. Mr Rijavec lacks the ability to think beyond the present and to consider the consequences of his actions; is prone to undertake risky and reckless action and is inclined to behave irresponsibly and find routine tasks boring; and
(c)Persecutory ideas - indicative of threat sensitive and paranoid thinking styles. This may be relevant to Mr Rijavec's weapon offending.
Ms Sampson also administered the Depression, Anxiety and Stress Scale to screen for current mental health symptoms. Mr Rijavec's scores demonstrated that he has severe current symptoms of anxiety, moderate symptoms of stress and mild symptoms of depression.
Ms Sampson also administered a Trauma Screening Questionnaire, which revealed that he has numerous trauma symptoms indicative of PTSD, due to his experiences of victimisation as a child. These symptoms includes emotional distress, bodily reactions when triggered, sleep problems, irritability and emotional reactivity, hypervigilance, heightened awareness and concentration issues.
In Ms Sampson's opinion, Mr Rijavec presented as an emotionally immature individual who has a long history of offending. Mr Rijavec has ADHD (for which he was not medicated for some time due to substance use) and symptoms of PTSD, anxiety and depression. His actions are also consistent with Anti‑Social Personality Disorder.
Ms Sampson concludes that Mr Rijavec's offending is driven by:
untreated ADHD, chronic depression and anxiety, PTSD, self-sabotaging behaviours, substance use as a negative coping strategy, association with adverse others, anti-social attitudes, an entitlement to drive, prioritisation of self-gratification over lawful behaviour, emotional immaturity, impulsivity, poor emotional regulation and coping skills, poor judgement and poor consequential thinking.

Pre-sentence report prepared by the Department of Justice, dated 13 November 2024

A pre-sentence report was also prepared by the Department of Justice, Adult Community Corrections.
The report provides a history of Mr Rijavec's offending, his personal circumstances, the current offences and Mr Rijavec's explanation of them, and Mr Rijavec's health and substance use.
In terms of previous responses to supervision, the report details that Mr Rijavec has satisfactorily completed two previous parole terms (in 2001‑2002 and in 2019); one previous two month home detention bail (1998); one community based order (1997/1998); and one 2.5 year period of probation (1996‑1998).
The report concludes that Mr Rijavec was deemed suitable for supervision in the community, with a recommendation of program and supervision requirements to allow him to address outstanding treatment needs. If a sentence of imprisonment is imposed, parole eligibility is supported.

Character references

Mr Rijavec also relied on three character references, from his mother, Marilyn Rijavec and friends Lauren Harrison and Ryan Huriwai. The character references speak to Mr Rijavec's past difficulties; his history with ADHD; his previous home invasion; his generosity with others and involvement with and commitment to his family; and his desire to improve his current position.

Sentencing reasons

At the hearing on 3 December 2024, the magistrate heard submissions from the parties as to the effect of the various reports that had been obtained. Her Honour also referred to having received a number of character references filed by Mr Rijavec. There was a reference to Mr Rijavec having attempted to send a letter to the magistrate, but that had not been received. Mr Rijavec, through his counsel, indicated he wished to proceed to sentencing without that letter.
The magistrate then proceeded to give her sentencing reasons. Her Honour outlined that she had the benefit of the extensive submissions made on 16 September 2024, as well as the additional reports and character references. Her Honour summarised Mr Rijavec's personal circumstances, noting they had been well canvassed. Of particular relevance was Mr Rijavec's diagnosis of ADHD which her Honour noted had been very poorly managed and had led to the perpetuation of impulsive behaviours, antisocial personality traits and sustained involvement in criminal activities.
The magistrate noted that the reports also referred to untreated PTSD that arises from childhood experiences, particularly from the agricultural school. Her Honour noted that the report did not address the impact that the home invasion had on Mr Rijavec in terms of his personal safety and decline in his mental health. However, Mr Rijavec's sentencing counsel had earlier made submissions that Mr Rijavec did not get the full interview time with the psychiatrist and therefore had been unable to discuss this issue, and Her Honour had observed that the invasion had been referred to in the character references.
Ultimately, the magistrate concluded as follows in relation to role played by Mr Rijavec's diagnoses on his offending behaviour, and the impact on sentencing considerations:[5]
Importantly, the psychiatric report finds that there's no causal link necessarily between the psychiatric diagnosis and the offending but rather attributes this to the long-term substance misuse and the personality vulnerabilities that arise from that. In terms of, really, where that takes us for sentencing purposes, in my view, general and specific deterrence are still relevant sentencing consideration but perhaps, in the circumstances of those untreated childhood traumas, they have a reduced need to be applied to their full extent.
[5] ts 3/12/2024, 9.
Her Honour referred to Mr Rijavec accepting that a term of immediate imprisonment was appropriate, and that Mr Rijavec had time spent in 78 days in custody since the September 2024 hearing. The magistrate noted that this time had been spent in Hakea Prison during a time of lockdowns of up to 23 hours a day, with access to things like mail, phone calls, lawyer visits being significantly reduced.[6]
[6] ts 3/12/2024, 10.
Her Honour referred to Mr Rijavec having a record, and the need to consider questions of totality.[7]
[7] ts 3/12/2024, 10.
The magistrate referred to Mr Rijavec having pleaded guilty at an early opportunity after taking legal advice,[8] but did not go on at any point to state the percentage reduction that she would apply to the sentence to reflect that guilty plea.
[8] ts 3/12/2024, 10.
Her Honour then outlined that:
(a)charge FR 6555/24, being the 10^th no authority to drive offence, would be the head sentence and a term of imprisonment of 8 months' was imposed;[9]
(b)charge FR 4758/24, being the ninth no authority to drive offence was:[10]
aggravated by the fact that there was an incident where Mr Rijavec was charged with careless driving and there was injury to the passenger
and a term of imprisonment of 4 months' cumulative was imposed;
(c)for charge FR 6554/24, being the careless driving offence, a term of imprisonment of 3 months' cumulative was imposed;[11]
(d)for charge FR 623/23, being the breach of the suspended imprisonment order, the SIO was cancelled, and Mr Rijavec was ordered to serve a term of imprisonment of 4 months' cumulative, taking into account the fact that Mr Rijavec made it 1 year through a 2 year period of suspension without any further reoffending;[12]
(e)for charge FR 4743/24, being the charge of possession of an unlicensed firearm, her Honour considered this offence to be more serious than could be dealt with by way of a fine, noting the barrel was sawn off. The magistrate stated that a term of imprisonment of 2 months' concurrent would be imposed.[13] I pause here to note that in the prosecution notice, a term of 4 months' concurrent was recorded for this charge. I will return to this issue later in these reasons; and
(f)the remaining matters were dealt with by way of fines, some of which were global.[14]
[9] ts 3/12/2024, 10.
[10] ts 3/12/2024, 10 ‑ 11.
[11] ts 3/12/2024, 11.
[12] ts 3/12/2024, 11.
[13] ts 3/12/2024, 11.
[14] ts 3/12/2024, 11 - 12.
The sentencing concluded at around 10.30 am, and the matter was recalled at around 1.00 pm the same day. The transcript reveals that the matter had been recalled as the magistrate had made an error in recording the cumulative or concurrent nature of one of the charges.[15]
[15] ts 3/12/2024, 13.
Counsel for Mr Rijavec went on to raise the following two further issues.
First, whether or not it was intended for there to be any backdating of the sentence or, if not, whether her Honour intended to specify the reduction of the sentence and which charge that was for. The magistrate explained that she had taken into account the time spent in custody in two ways:[16]
(a)in relation to charge FR 623/23, by reducing the term of imprisonment imposed (the original sentence being for 8 months); and
(b)in relation to charge FR 4743/24, by making that term of imprisonment concurrent.
[16] ts 3/12/2024, 13 - 14.
Her Honour then noted that this made a total effective term of 19 months' and confirmed that was a 19 month term to commence from 3 December 2024. The magistrate explained that:[17]
So just so I didn't fall into error in terms of backdating the suspended imprisonment order, rather than do it that way, I've constructed it so that I didn't need to do any backdating exercise.
[17] ts 3/12/2024, 14.
I pause here to note that a total effective sentence of 19 months' imprisonment means that a term of 4 months' imprisonment must have been imposed for charge FR 4743/24.
Secondly, Mr Rijavec's counsel noted that the prosecutor had identified that when delivering the reasons, her Honour had referred to the head sentence imposed for charge FR 6555/24 as being aggravated by the further no authority to drive of FR 4758/24. Counsel observed that this may have been the other way around. Counsel noted that the actual effect of the sentence would remain the same. In response, the magistrate corrected the position as follows:[18]
So the head sentence, still sat on - sorry, it's just the way I've worded it. So 4758, I've still kept as the head sentence because that's the last - sorry, hang on. Hang on. 6555 of '24, I've still kept as the head sentence. And then 4578 [sic], despite the fact that it was the first in time, the head sentence I've put on the one that's the majority of which - sorry, because it was the 10th in terms of sentencing. If I referred to that as aggravating if I referred to the first in time as aggravating, I shouldn't have. It should have been the second.
[18] ts 3/12/2024, 14.

Grounds of appeal

Mr Rijavec seeks leave to appeal on the following three grounds:
(1)the total effective sentence of 19 months' is disproportionate to the overall criminality of the offending (Ground 1);
(2)the magistrate made a specific error in relation to FR 4758/24 by sentencing on the basis that the offence was aggravated by a further offence of careless driving (Ground 2); and
(3)the magistrate made a specific error in relation to FR 6555/24 by announcing an appropriate sentence of 4 months' for the offence, accompanied by careless driving and then imposing a sentence of 8 months' imprisonment (Ground 3).

Legal principles

Appeal

This appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed by a court of summary jurisdiction as a result of a conviction is a decision which may be appealed.[19] An appeal against sentence may be made on the grounds that, relevantly, the sentencing court made an error of law or imposed a sentence that was excessive.[20]
[19] CA Act, s 6(f) and s 7(1).
[20] CA Act, s 8(1)(a)(i) and (iii).

Leave to appeal is required for each ground of appeal.[21] Leave to appeal must not be granted on any ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[22] meaning that the ground is required to have a rational and logical prospect of succeeding.[23] A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[24]
[21] CA Act s 9(1).
[22] CA Act s 9(2).
[23] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[24] Sami v Duggan [2011] WASC 304 [38].

Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[25] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[26]
[25] CA Act, s 14(2).
[26] CA Act s 9(3).

Application for an extension of time

An appeal against the decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision, unless the court orders otherwise.[27] An extension of time to appeal will be granted if it is in the interests of justice to do so.[28]
[27] CA Act, s 10(3).
[28] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA).
In the present case, the application for leave to appeal ought to have been commenced by 31 December 2024. However, it was not commenced until 8 April 2025, being 97 days out of time.
The explanation for the delay is contained in the affidavit of Kerry Gorski, affirmed 4 April 2025. In her affidavit, Ms Gorski outlines that Mr Rijavec's sentencing counsel sought a grant of legal aid in relation to an appeal on 6 December 2024. That application was not accepted. A fresh application, along with correspondence was made on 14 January 2025, but a grant of legal aid was not made until 10 March 2024. The subsequent delay was then attributable to obtaining the relevant transcripts, sentencing information and instructions. The respondent does not assert any prejudice as a result of the delay, and does not oppose the extension of time.
In all the circumstances, I consider that the delay has been explained and is not attributable to Mr Rijavec. I will therefore grant the extension of time.

Ground 2 and ground 3 - specific errors in the sentencing process

It is convenient to first consider grounds 2 and 3 of the appeal, which each alleged specific errors in the sentencing process.

Legal principles

Grounds 2 and 3 allege specific errors by the magistrate in the sentencing process.
Different views have been expressed in decisions of this court as to whether a specific error in the sentencing process must be material for the purposes of pt 2 of the CA Act. Different views have also been expressed as to the scope and operation of s 14(2) of the CA Act where an express error is found in the sentencing process. A useful summary of the various decisions and differing views is contained in Crocker v Vinicombe.[29] It is not necessary to address these issues in the present case as, for the reasons outlined below, I am of the view that the magistrate did not make the express errors alleged in grounds 2 and 3.
[29] Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529 [42] ‑ [60].
When reviewing the magistrate's sentencing reasons, it is worthwhile recounting that, as observed by Martin CJ in Strahan v Brennan,[30] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:
[i]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[30] Strahan v Brennan [2014] WASC 190 [89] - [90].
Whilst in the present case the sentencing took place on a subsequent date, after the matter had been adjourned to enable the magistrate to consider the submissions made and obtain additional reports, a magistrate is still required to manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.

Ground 2

Mr Rijavec submits that the magistrate made a specific error in imposing a sentence of 4 months' imprisonment for charge FR 4758/24 (driving without authority), on the basis that it was aggravated by careless driving.
When the transcript is read as a whole, I am not satisfied that the magistrate made this error.
When the magistrate originally imposed the sentence for charge FR 4758/24, her Honour did say that the offence was aggravated by the careless driving.[31] However, the matter was then recalled in the early afternoon. Sentencing counsel for Mr Rijavec expressly raised this issue with magistrate, albeit counsel appears to have misunderstood or possibly incorrectly stated the issue. Sentencing counsel raised whether her Honour had incorrectly referred to the head sentence imposed for charge FR 6555/24 as being aggravated by the further no authority to drive offence of FR 4758/24.[32] The only reference the magistrate had made to an aggravating factor, was that of careless driving.
[31] ts 3/12/2024, 10.
[32] ts 3/12/2024, 14.
When the issue was raised, her Honour clarified that she intended to refer to the second in time offence, being charge FR 6555/24, as being aggravated, and that if she referred to the first in time offence as being aggravated, then that was an error.[33] The reference to first in time offence must be a reference to charge FR 4758/24.
[33] ts 3/12/2024, 14.
The magistrate then went on to confirm that the total effective term of imprisonment was 19 months.
Therefore, when the transcript is read as a whole, I am satisfied that the magistrate did not make the express error contended for in ground 2, and the reference to charge FR 4758/24, as opposed to charge FR 6555/24, being aggravated was an error which was clarified and corrected when the matter was recalled. This is also consistent with the magistrate describing charge FR 6555/24 as being the most serious charge and making it the head sentence.

Ground 3

Ground 3 alleges that the magistrate made a specific error in relation to FR 6555/24 by announcing an appropriate sentence of 4 months' for the offence, accompanied by careless driving, and then imposing a sentence of 8 months' imprisonment.
Ground 3 proceeds on the basis that the magistrate originally referred to charge FR 4758/24 as being aggravated by careless driving, and imposed 4 months' imprisonment for that offence. When that is combined with the sentence of 3 months' imprisonment for the careless driving charge, that amounts to a total of 7 months' imprisonment. However, for the charge of driving without authorisation that was actually aggravated by careless driving, being FR 6555/24, the magistrate imposed a sentence of 8 months' imprisonment, which when combined with the careless driving sentence is a total of 11 months' imprisonment.
I do not accept that the magistrate made the specific error alleged in ground 3.
The magistrate did not at any point state that any sentence other than 8 months' immediate imprisonment be imposed for charge FR 6555/24. The magistrate described charge FR 6555/24 as being the most serious and referred to it being later in time.[34] Her Honour clarified when the matter was recalled that she meant to say that charge FR 6555/24 was aggravated by careless driving.[35]
[34] ts 3/12/2024, 10.
[35] ts 3/12/2024, 14.
Accordingly, when the transcript is read fairly as a whole, I do not accept that the magistrate made the specific error alleged.
At its heart, the real error alleged by counsel in relation to ground 3 is that the total sentence imposed for FR 6555/24, when combined with the other charges for which terms of imprisonment were imposed, was too high.[36] I am of the view that this is properly addressed when considering ground 1 of the appeal and is a matter to be considered in the context of totality.
[36] Appeal ts 27/05/2025, 3.

Ground 1 - Totality

Legal principles

The principles that apply on an appeal against sentence on the basis that a total effective sentence infringes the totality principle are well established. It was summarised by the Court of Appeal in Kambabi v The State of Western Australia as follows:[37]
(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.
…
(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.
[37] Kambabi v The State of Western Australia [2019] WASCA 44 [21], citing Salkilld v Western Australia [2017] WASCA 168 [48] and Trajkoski v Western Australia [2018] WASCA 176 [30].
An appeal on the ground that the first limb of the totality principle has been infringed alleges an implied error, and therefore the principles referred to in House v The King[38] are applicable. As a consequence, it is necessary for the sentence to be unreasonable or plainly unjust before an error of principle can be inferred. The corollary of this rule is that appellate courts ought not be 'tinkering' with sentences.[39]
[38] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[39] Allen v The State of Western Australia [2017] WASCA 203 [66].
It is also relevant to observe that the sentencing process proceeds on the basis of 'instinctive synthesis', unless otherwise required by statute (for example, s 9AA of the Sentencing Act). The task of the sentencing court is to take into account all the relevant factors and to arrive at a single result which takes due account of them and is proportionate and just. The sentencing process does not proceed on the basis of a two‑stage approach, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case.[40]

Parties' submissions

[40] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [74] ‑ [78]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [37] ‑ [39] (Gleeson CJ, Gummow, Hayne & Callinan JJ), [66] ‑ [70], [84] (McHugh J); Kelly v The State of Western Australia [2024] WASCA 116 [255] ‑ [262] (Buss P), [351] ‑ [358] (Mazza & Hall JJ).

Mr Rijavec accepts that a term of immediate imprisonment was appropriate, and accepts that the individual sentences imposed were within a normal sentencing range.
However, Mr Rijavec submits that a term of 19 months' imprisonment, amounting to 21 months' when the time spent in custody is taken into account, is longer than necessary to achieve the goals of sentencing.
Mr Rijavec's counsel accepts that he has a criminal record, but submits that her Honour concluded that whilst specific and general deterrence were relevant, there was reduced need to apply them here, given Mr Rijavec's antecedents, in particular his ADHD, PTSD and general mental health issues.
Mr Rijavec also submits that when regard is had to other comparable sentences in relation to those considering driving without authorisation, the sentence imposed is outside the range of sentences customarily imposed. Mr Rijavec refers to a number of cases in this regard. Further, that the total sentence is disproportionate to the seriousness of the offending and Mr Rijavec's personal circumstances. Mr Rijavec places particular emphasis in this regard on the sentence imposed for the offending on 12 June 2024, being 11 months' imprisonment.
The respondent accepts that a term of 19 months' imprisonment exceeds the upper range of sentences generally said to be imposed for no authority to drive offences. However, the respondent submits that there are instances where it is appropriate to exceed the range and submits that Mr Rijavec's case is one such example.
The respondent submits that it is necessary to have regard to not only the driving without authorisation charges, but also the careless driving, firearms charges and the breach of the SIO. The respondent submits that the sentence imposed by the magistrate in relation to the firearms charges was on the lenient side. The respondent submits that when the firearms charges are considered in addition to the driving without authorisation charges, as well as Mr Rijavec's antecedents, the total effective sentence bears a proper relationship to the overall criminality involved in the offences.

Has there been a breach of the totality principle?

The first limb of the totality principle requires the total effective sentence to bear a proper relationship to the overall criminality of the offending behaviour. This requires the court to consider the total effective sentence in light of the maximum sentences, the seriousness of the offending, the personal circumstances of Mr Rijavec, all relevant sentencing factors and comparable cases.
When considering the first limb of the totality principle, it is necessary to have regard to all of the offending for which Mr Rijavec was sentenced. However, the focus of the submissions of the parties was on the offences for which Mr Rijavec received a term of imprisonment.
This is understandable in the present case, as the remaining offending consisted of less serious offences, including drug possession (with no suggestion of distribution) and more minor traffic offences relating to the licence plates on the motorcycle. These offences received sentences of global fines. In short, the submission of both parties was that it was the other offending which was more serious, and it was those sentences which required consideration from the perspective of the first limb of the totality principle. I have proceeded on this basis in this appeal.
Having considered these matters, I am of the view that the total effective sentence does infringe the first limb of the totality principle.

Maximum penalty

The maximum penalties for each of the offences are set out in the table earlier in these reasons, including the summary conviction penalties. The penalty that may be imposed upon summary conviction reflects only a jurisdictional limit and the relevant yardstick in assessing the appropriateness of the sentence imposed is the maximum penalty.[41]
[41] Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [26] ‑ [31].
The offences of driving without authorisation (suspended) each have a maximum penalty of 18 months' imprisonment and a fine of between $1,000 ‑ $4,000 (20PU ‑ 80PU).
The offence of careless driving has a maximum penalty of 3 years' imprisonment or a fine of $36,000 fine (720PU).
The offence of possession of stolen or unlawfully obtained property has a maximum penalty of 7 years' imprisonment.
The offence of possession of a firearm without authorisation has a maximum penalty of 7 years' imprisonment.
The offences of possession of ammunition each have a maximum penalty of 5 years' imprisonment.
The offences of carrying a controlled weapon each have a maximum penalty of 2 years' imprisonment and a fine of $24,000.

Seriousness of the offending

Whilst Mr Rijavec's offending is not at the upper end of seriousness for each type of offence, aspects of the offending nonetheless remain serious.
I consider the firearms offences are moderately serious in nature. Mr Rijavec had in his possession a 12‑gauge shotgun with the barrel sawn off. Due to the alteration to the shotgun, it could be used with one hand. Mr Rijavec also had ammunition that could be used with the shotgun. Whilst Mr Rijavec had not used the shotgun, it was nonetheless possible for him to do so and he must have purchased with the intention of using it if required. Mr Rijavec is also a recreational drug user and the reports before the court indicate that he struggles with impulsive and consequential thinking.
Mr Rijavec's repeated driving whilst his driver's licence is under suspension indicates a disregard for orders of the court; for the road rules; and a disregard for the privilege associated with being granted a driver's licence. The same can be said about Mr Rijavec's failure to ensure the motorcycle was licenced and that the plates were correct and visible.
The careless driving charge resulted in bodily harm to his passenger. It occurred when Mr Rijavec was merging with traffic and bumped a car in front of him, causing both himself and his passenger to fall on the road. However, it was not sufficiently serious to require the passenger to attend hospital. Accordingly, I consider it to be at the lower end of seriousness.
Mr Rijavec's offending in relation to the charge of possessing stolen property is also at the lower end of seriousness.
Mr Rijavec's drug offences are at the lower end of the scale and the trace quantities consistent with prior personal use. There is no evidence of any further distribution.

Aggravating factors

Mr Rijavec's offending was aggravated by the fact that he was on a SIO in relation to charge FR 623/23 and several of the offences breached the terms of that SIO.
Mr Rijavec's offending on 9 May 2024 concerning the shotgun was aggravated by possession of ammunition that could be used with the shotgun.
Mr Rijavec's offending on 12 June 2024 of driving whilst he was suspended was also aggravated by the careless driving charge and the charges associated with the licence plate and the lack of a vehicle licence. Further, Mr Rijavec's driving offending as a whole was further aggravated by the fact that he had been charged with driving whilst suspended on 9 May 2024, and had not yet been dealt with for that offence. Approximately four weeks later, Mr Rijavec had proceeded to purchase a motorcycle and again drive whilst his licence remained suspended. Finally, all of Mr Rijavec's offending was aggravated by him being on bail for the 9 May 2024 offences.

Mitigating factors

A key mitigating factor was Mr Rijavec's plea of guilty at an early stage after receiving legal advice. Whilst this was referred to by the magistrate, no specific discount was identified. Mr Rijavec does not allege a specific error in this regard, but rather has relied on the totality ground of appeal to capture this aspect of the appeal against sentence.
By entering pleas of guilty to all charges, Mr Rijavec has saved the expense of a trial in relation to numerous offences. However, it is relevant to observe that nearly all the charges are based upon the results of police searches, or traffic stops. That is, the prosecution case in relation to most charges is relatively simple and strong.
The second key mitigating factor is Mr Rijavec's diagnosis of ADHD (and its poor management), PTSD and his other mental health conditions, and their underlying causes. The evidence before the magistrate was that these were not causative of his offending, but they so it does offer an explanation of the difficulties facing Mr Rijavec, his concerns and worries in the lead up to at least some of the offending, and does reduce the need to ensure specific and general deterrence.
However, I do not accept that the fact that Mr Rijavec had the firearm and associated ammunition for personal protection is a significant mitigating factor. Whilst Mr Rijavec may suffer from PTSD and other associated mental health conditions following (at least in part) a home invasion, as outlined by Rothman J in R v AA:[42]
It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.
[42] R v AA [2006] NSWCCA 55 [46].
A third mitigating factor was the time Mr Rijavec had spent in custody at Hakea prison, and the conditions currently being experienced in Hakea prison due to overcrowding and understaffing.
A fourth mitigating factor, is that Mr Rijavec has experienced periods of homelessness and has moved between various accommodations, including his boat and hotels.
Mr Rijavec does not have the mitigating factors of good character or age.

Time in custody

Mr Rijavec has spent a total of 79 days in custody.

Comparable cases

Neither counsel was in a position to refer to comparable cases which identically match the particular offending in the present case. That is not surprising in the present case due to the number and combination of offences and facts. However, the parties have referred to a number of comparable cases which provide assistance to the court.
The lack of any (or many) comparable cases does not prevent a conclusion that the total effective sentence infringes the first limb of the totality principle. It merely has the consequence that the court lacks cases to provide a yardstick against which to judge the total effective sentence.[43]

Driving without authority

[43] Ugle v The State of Western Australia [2022] WASCA 135 [94].

Various authorities have considered the appropriate penalty for multiple charges for driving whilst suspended, including where the offender has multiple past convictions. See, by way of example, Rossiter v Francistry,[44] Sheiner v Roberts,[45] Matthews v Whalley,[46] Mears v Holleman;[47] Neves v Rogers,[48] Lemmon v Walker‑McLean,[49] Wilson v Director of Public Prosecutions,[50] Jackman v Davidson,[51] Thomson v Brock.[52]
[44] Rossiter v Francisty [2005] WASC 270.
[45] Sheiner v Roberts [2009] WASC 281.
[46] Matthews v Whalley [2010] WASC 165.
[47] Mears v Holleman [2010] WASC 39.
[48] Neves v Rogers [2013] WASC 440.
[49] Lemmon v Walker-McLean [2019] WASC 475.
[50] Wilson v Director of Public Prosecutions [2021] WASC 404.
[51] Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11.
[52] Thompson v Brock [2013] WASC 289.
The authorities reveal the following relevant sentencing principles:
(a)the penalties provided for driving without a licence or under suspension are designed to be both punitive and to secure public safety on the roads;[53]
(b)in the case of persistent offences of driving under suspension, there is a strong need for both general and personal deterrence;[54]
(c)once the privilege to be granted a driver's licence is withdrawn or suspended, the court will insist that an offender does not drive and cases where the law is flouted, particularly repeatedly, will be visited by punishment of increasing severity, including by imprisonment;[55]
(d)driving whilst under court ordered suspension has the additional element of disobedience, possibly wilful, of an order of the court;[56]
(e)convictions of driving while under suspension involving an offender's 4^th - 8^th offences have commonly resulted in terms of imprisonment of between 4 - 9 months;[57]
(f)the pattern of sentences of imprisonment for multiple offences of driving whilst under suspension, including those in circumstances where there is a long history of prior convictions reveals aggregate sentences in the region of 10 - 12 months' are commonly imposed;[58]
[53] Neves v Rogers [2013] WASC 440 [38]
[54] Neves v Rogers [2013] WASC 440 [39].
[55] Matthews v Whalley [2010] WASC 165 [31].
[56] Neves v Rogers [2013] WASC 440 [28].
[57] Mears v Holleman [2010] WASC 39 [24]; Neves v Rogers [2013] WASC 440 [41]; Wilson v Director of Public Prosecutions [2021] WASC 404 [61].
[58] Mears v Holleman [2010] WASC 39 [25]; Neves v Rogers [2013] WASC 440 [42]; Wilson v Director of Public Prosecutions [2021] WASC 404 [61].
A number of particular cases were referred to by the parties.
In Sheiner v Roberts, the appellant pleaded guilty to five charges of driving under suspension after 10 previous convictions. The appellant was sentenced by the magistrate to a total effective sentence of 18 months' imprisonment comprised of individual sentences of 6 months' imprisonment on each offence. Having had regard to other comparable cases, and the appellant's personal circumstances, including that she had never been sentenced to a term of imprisonment before, McKechnie J held that the sentence exceeded the appropriate sentence and resentenced the appellant by not interfering with the individual terms of imprisonment, but restructured the sentence so as to impose a total effective sentence of 8 months' imprisonment. The appellant in this case had committed a greater number of individual driving offences, but was not subject to a SIO.
In Lemmon v Walker-McLean,[59] the appellant appealed a sentence of 18 months' immediate imprisonment imposed for four offences of driving while unauthorised - being the seventh - tenth offences committed by the appellant in an 11‑month period. The appeal was upheld on the basis that the appellant's personal circumstances meant that a sentence of 18 months' imprisonment was not required to meet the requirements of personal or general deterrence. Those circumstances included the appellant's age of 31; a previous history of abiding by the law; the death of her twin children at the age of 10 days old and the development of an addiction to methylamphetamine. The appellant was resentenced to 12 months' immediate imprisonment. Whilst this case involved a similar level of criminality terms of driving offences, the personal circumstances of the appellant were very different to those of Mr Rijavec.
[59] Lemmon v Walker-McLean [2019] WASC 475.
In Neves v Rogers,[60] the appellant appealed a total sentence of 12 months' and one‑day immediate imprisonment for three offences of driving whilst under suspension in addition to two offences of driving an unlicensed vehicle, one offence of driving with fraudulently altered number plates and one offence providing false personal details. The appellant received terms of imprisonment of 6 months' and 1 day imprisonment for each of the driving whilst suspended offences. Beech J held that the appropriate sentence was a term of 4 months' imprisonment for each of the driving whilst suspended offences, and structured the sentence so as to impose a total effective sentences of 7 months' immediate imprisonment. This case involves similar levels of criminality in relation to the driving offences only.
[60] Neves v Rogers [2013] WASC 440.
In Knights v Ward,[61] the appellant appealed a sentence of 20 months' immediate imprisonment imposed in relation to 11 charges of driving whilst under suspension, committed over a 1 year period, nine of which were aggravated by speeding charges. The magistrate imposed individual sentences of 5 months' imprisonment for each of the offences of driving whilst suspended and then made some sentences concurrent and some cumulative.
[61] Knights v Ward [2022] WASC 267.
Solomon J upheld an appeal on the first limb of the totality ground. His Honour observed there were no serious aggravating factors and the appellant was entirely cooperative with police. His Honour had regard to the personal circumstances of the appellant, including her age (29 years) and that she had a young child, and that any sentence of immediate imprisonment would have a profound impact on the appellant and her family. There was no challenge to the individual sentences, and the appellant was resentenced to a term of 7 months' imprisonment for the first of the driving without authority offences, and then sentenced to terms of 5 months' imprisonment for each of other charges, with each to be served concurrently on the first charge. Whilst this case involved a greater number of driving offences, the personal circumstances of the appellant were very different to those of Mr Rijavec.
In Jackman v Davidson,[62] the appellant was sentenced in respect of eight charges which occurred on five separate dates, including two charges of no authority to drive; one charge of careless driving causing bodily harm; two different charges of driving under the influence and one charge of breaching bail. The appellant was sentenced to a total effect sentence of 18 months' imprisonment, without eligibility for parole.
[62] Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11.
The driving without authority sentences were for terms of 6 months' imprisonment each, one to be served concurrently on other sentences, and one cumulatively. The appellant had 11 previous convictions for no authority to drive, six of which were driving whilst under suspension.
The careless driving charge involved a pedestrian being struck on or near the curb and sustaining soft tissue injuries which were described by the sentencing magistrate as 'substantial'.
The appellant appealed on the basis of (amongst other grounds) a breach of the first limb of the totality principle. The appellant submitted that the second of the 6 months' terms of imprisonment for driving without authority should also have been made concurrent. The appeal was unsuccessful on this ground, with the court finding that a term of 18 months' immediate imprisonment did not breach the first limb of the totality principle. The appeal was allowed on the basis that the appellant ought to have been made eligible for parole. This case provides some assistance as it has an overall similar level of criminality to that involved in the present case. In the present case the careless driving charge was less serious, but Mr Rijavec also has the various firearms offences.
In Thomson v Brock,[63] the appellant was sentenced to total effective sentence of 18 months' imprisonment following being convicted of one charge of driving whilst suspended. This charge was the appellant's 19^th offence of driving whilst under suspension. The sentence comprised a sentence of 10 months' imprisonment for his driving whilst suspended, which in turn triggered three SIOs each of 9 months' imprisonment. These sentences were also imposed for charges of driving whilst suspended. The magistrate activated the SIO sentences and reduced them by one month to take into account time spent in custody. The magistrate then ordered that those SIO sentences be served concurrently with each other but cumulatively on the sentence of 10 months. Leave to appeal on the basis of a breach of the first of the totality principle was refused. This case involves a similar level of criminality in terms of driving offences.

Firearms offences

[63] Thomson v Brock [2013] WASC 289.

In relation to the firearms charges, as observed by Tottle J in Evans v Anderson,[64] there is no established range of sentences for offences relating to unlicensed possession of firearms. Authorities imposing sentences ranging between 6 and 12 months' were referred to in Huynh v The State of Western Australia.[65] In Huynh, the appellant was sentenced to a term of 2 years' immediate imprisonment in respect of offences involving possession of two loaded handguns at a time when he was engaged in drug dealing. The Court of Appeal upheld the sentence.
[64] Evans v Anderson [2019] WASC 178 [21].
[65] Huynh v The State of Western Australia [2012] WASCA 8.
In Larussa v The State of Western Australia, the Court of Appeal concluded that general deterrence is the main consideration when sentencing for offences against firearms legislation, with personal circumstances playing a lessor role.[66] The Court of Appeal also observed that most of the decisions in the Court of Appeal involving firearms offences also involve one or more drug offences.
[66] Larussa v The State of Western Australia [2023] WASCA 62 [101]. See also Stone v State of Western Australia [2010] WASCA 80 [23].
In Larussa, the court quashed the appellant's conviction on one count of possessing methylamphetamine with intent to sell or supply and entered a verdict of acquittal, leaving the question of whether the sentence imposed for 11 remaining counts of firearms and ammunition offences should be varied as part of the resentencing process. In this context, the Court of Appeal observed that limited assistance could be gained from consideration of comparable cases in the Court of Appeal.[67] Notwithstanding this observation, the Court of Appeal also observed as follows:[68]
However, there are several cases involving one or more drug offences combined with one or more firearms offences in which the firearms offences have substantially increased the total effective sentence - by more than 18 months and sometimes appreciably more - where an appeal on totality grounds was dismissed and in which this court has emphasised the seriousness of the firearms offences. Moreover, individual sentences of 2 years or more have been imposed without any suggestion of error. In light of the maximum penalties for such offending, that is not surprising. (citations omitted)
[67] Larussa v The State of Western Australia [2023] WASCA 62 [102].
[68] Larussa v The State of Western Australia [2023] WASCA 62 [103].
The offending in Larussa was significantly more serious than in the present case, consisting of a greater number of offences, firearms and quantity of ammunition. The maximum penalty for the firearms offences was greater than the present case, as it was a situation where the appellant had in his possession three or more firearms. The Court of Appeal did not alter the individual sentences imposed by the trial judge, but did alter the structure of the sentence to reflect an appropriate sentence following the acquittal in relation to the drug offence. A total effective sentence of 2 years 6 months' immediate imprisonment was imposed. The individual sentences for the possession of individual firearms were 12 or 18 months' imprisonment and sentences of 1 or 2 months' imprisonment were imposed for the possession of ammunition offences.
In Stone v State of Western Australia,[69] the appellant pleaded guilty to one charge on indictment of possession of a single‑barrel shotgun which had been altered. The appellant also pleaded guilty to eight summary charges set which were dealt with under s 32 of the Sentencing Act - seven of which were driving without a valid driver's licence. The facts included a situation where there was an accidental discharge of the firearm by another person, and an associate received a wound to the knee. A total effective sentence of 27 months' imprisonment was imposed. That sentence included a sentence of 12 months' (reduced from 15 months') for the possession of the firearm, and sentences of 6 months' imprisonment concurrent (reduced from 12 months') for all of the driving offences except one, which was 6 months' imprisonment concurrent (reduced from 9 months'). The appellant was 25 years old at the time of the offending, with employment and had engaged in drug and cognitive skills programmes.
[69] Stone v State of Western Australia [2010] WASCA 80.
On appeal, the appellant accepted that none of the individual driving charges could be challenged as they were not manifestly excessive. The Court of Appeal also held that the total effective sentence was within the range of a sound exercise of the sentencing discretion and was not disproportionate - it being for a serious, but not the most serious firearms offence, and a blatant and fragrant course of conduct over a 12 month period of seven offences of driving without a licence. Leave to appeal was therefore refused. The offending in this case was more serious than in Mr Rijavec's case. Whilst the firearms offences are accompanied by drug offences, these are of possession only, with no suggestion of dealing.

Conclusion

In all the circumstances, I am of the view that the sentence of 19 months' imprisonment does not bear a proper relationship to the overall offending and is unreasonable or unjust.
Mr Rijavec's driving offending was serious and reveals a continuing disregard of the orders of the court and the road rules. Whilst the offending driving behaviour occurred over multiple dates, and Mr Rijavec has an extensive driving record, it is accepted that a sentence of 19 months' imprisonment (which is a 21 months' sentence when the time already spent in custody is considered) is outside the general sentencing range for offending of this number and nature.
The careless driving offence is at the low - moderate range of seriousness, in light of the lack of any serious injuries to the passenger and the factual circumstances of the incident. The possession of stolen property charge is also at the low end of seriousness.
Whilst the firearms offences are serious, and the maximum penalties reflect the seriousness of these offences, they were not accompanied by other aggravating factors such as drug distribution.
Mr Rijavec's personal circumstances, including his history of drug and alcohol use, precipitated by past events of abuse and a home invasion; as well as his history of homeless; his ADHD; and the improvements he has made in the previous year in terms of maintaining employment, are such that there is a reduced need for personal deterrence in the sentencing process. Whilst Mr Rijavec's mental health issues were not causative of his offending, the psychiatric report observes that Mr Rijavec's current difficulties are perpetuated by long‑term substance abuse, in the background of personality vulnerabilities and childhood developmental issues, which has contributed to a pattern of impaired judgement and reckless actions.
Mr Rijavec also pleaded guilty to the charges and therefore a reduction in the sentence in the vicinity of at least 15% was warranted in all the circumstances.
Whilst there are no comparable sentencing cases that match the range and type of Mr Rijavec's offending, I consider that when regard is had to the facts of those cases identified by the parties, and the facts in the present case, that Mr Rijavec's sentence does not bear a proper relationship to the offending behaviour.

Resentencing

In these circumstances, I am now required to resentence Mr Rijavec. I have before me the necessary material to undertake that exercise.

There is no challenge to the individual sentences imposed by the magistrate, and I consider that the individual sentences for all charges are appropriate. In reaching that conclusion, I have had regard to all relevant sentencing factors and the time spent in custody on remand. In terms of the pleas of guilty, given the nature of the offences, I consider a discount of 15% to be appropriate in all the circumstances.
In terms of charge FR 623/23, in accordance with s 80(1)(a) of the Sentencing Act, I am required to order Mr Rijavec serve the suspended 8 months' term of imprisonment unless I decide that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed. If I am satisfied it would be unjust, in accordance with s 80(1)(b) of the Sentencing Act, I may order that Mr Rijavec serve part of the 8 months' term of imprisonment that was suspended.
There is no challenge to the decision of the magistrate to order to that Mr Rijavec serve 4 months' of the term of imprisonment imposed. The magistrate had regard to the fact that Mr Rijavec had not offended for a period of 1 year, being half the suspension period. I also agree this is relevant, as is the fact that Mr Rijavec had held down his employment until he was remanded on these offences. I also observe that the court now has before it the psychiatric report and the psychological report which provides new information regarding Mr Rijavec's antecedents that was not before the sentencing court on 13 March 2023. In those circumstances, I consider it would be unjust to require Mr Rijavec to serve the entirety of the 8 month term of imprisonment, and agree that an order requiring him to serve 4 months' of the original term is the appropriate sentence.
In order to address the question of totality, I will structure the sentences as follows:
(a)by making the 8 months' sentence for charge FR 6555/24 the head sentence;
(b)by making the 3 months' sentence for charge FR 6554/24 cumulative with the head sentence;
(c)by making the 4 months' sentence for charge FR 4758/24 concurrent with the head sentence;
(d)by making the 4 months' sentence for charge FR 4743/24 cumulative with the head sentence; and
(e)by making the 4 months' sentence for charge FR 623/23 concurrent with the head sentence.
This amounts to a total effective sentence of 15 months' imprisonment - or 17.5 months' when the time spent in custody is taken into account. I also agree that Mr Rijavec should be eligible for parole.

Conclusion and orders

I will hear further from the parties as to the precise orders to be made, but will otherwise make orders to the effect that:
1.The application for an extension of time to appeal is granted.
2.Leave to appeal is granted in relation to ground 1 and the appeal is allowed on this ground.
3.Leave to appeal is refused in relation to grounds 2 and 3.
4.The sentence imposed on 3 December 2024 in relation to charges FR 623/23, FR 4743/24, FR 4758/24, FR 6554/24 and FR 6555/24 is varied as follows:
(a)FR 6555/24 (head sentence): sentence of 8 months' imprisonment concurrent and licence disqualification of 9 months;
(b)FR 6554/24: sentence of 3 months' imprisonment, cumulative with the head sentence;
(c)FR 4758/24: 4 months' imprisonment, concurrent with the head sentence;
(d)FR 4743/24: sentence of 4 months' imprisonment, cumulative with the head sentence; and
(e)FR 623/23: sentence of 4 months' imprisonment, concurrent with the head sentence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Hon Justice Seaward
20 JUNE 2025