Taylor v The State of Western Australia - [2023] WASCA 127

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 127
CORAM:   BUSS P
HALL JA

HEARD:   11 AUGUST 2023
DELIVERED          :   29 AUGUST 2023
FILE NO/S:   CACR 29 of 2023
BETWEEN:   TYRELL KEITH TAYLOR
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   QUINLAN CJ
File Number            :   INS 45 of 2021

Catchwords:

Criminal law - Appeal against sentence - Manslaughter - Failure to report traffic incident - Where appellant convicted after trial - Whether sentence of 9 years' imprisonment for manslaughter manifestly excessive - Whether total effective sentence of 10 years breached first limb of totality principle

Legislation:

Criminal Code (WA), s 280(1)
Road Traffic Act 1974 (WA), s 56(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Beard v The State of Western Australia [2015] WASCA 74
Byrne v The State of Western Australia [2022] WASCA 64
Francis v The State of Western Australia [2019] WASCA 43
Kabambi v The State of Western Australia [2019] WASCA 44
The State of Western Australia v PJW [2015] WASCA 113

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was convicted after trial of one count of manslaughter contrary to s 280(1) of the Criminal Code (WA) and one count of failing to report an incident involving a motor vehicle that occasioned the death of another person contrary to s 56(2) of the Road Traffic Act 1974 (WA). He was sentenced to 9 years' imprisonment for the manslaughter offence and 1 year's imprisonment cumulative for the failure to report offence. Accordingly, the total effective sentence was 10 years' imprisonment.
The appellant's essential contention is that the sentence imposed was manifestly excessive. This appears to be directed to the sentence imposed on the manslaughter charge. Insofar as it is also directed to the sentence on the other count and to the total effective sentence, we have also considered those aspects of the sentence.
For the reasons that follow, there is no reasonable prospect that the ground of appeal could succeed. Leave to appeal must be refused and the appeal dismissed.

The facts

The learned sentencing judge made the following findings of fact, which are not challenged on this appeal.
On the evening of 1 April 2021, at just before midnight, the appellant drove his car to the High Wycombe shopping centre to withdraw money from an automatic teller machine. The deceased, Mr Jonathan Frecker, had been drinking at the nearby High Wycombe Tavern. At around the time that the appellant entered the shopping centre car park, Mr Frecker had left the tavern and was speaking with four other men in the car park.[1]
[1] ts 573.
The appellant withdrew money from the automatic teller machine, returned to his car and drove towards the car park exit. As he drove through the car park his route was blocked by Mr Frecker, who was standing in the middle of the road with his back to the appellant's car. The appellant slowed down and stopped a short distance from Mr Frecker who then turned around and looked at the appellant. In order to get Mr Frecker to move out of the way the appellant drove his vehicle towards him, stopping a few centimetres in front of him. Mr Frecker continued to look in the appellant's direction.[2]
[2] ts 573.
Mr Frecker then turned around and sat on the bonnet of the appellant's car and crossed his arms. As he was sitting down the appellant lowered his car window and shouted at Mr Frecker. The four other men who were present at the time gave varying accounts of what the appellant shouted. These accounts included 'get out of the way cunt', 'get off the road', 'get the fuck out of the road', 'I'm going to fucking run you over' and 'get the fuck away'. In his own evidence the appellant stated that he had said 'get out of the fucking way or you will get run over'. Whilst on remand in prison the appellant said in a telephone call that he had told Mr Frecker to 'get out of the fucking way or I will run you over'. The sentencing judge concluded that whilst he could not determine the precise words that the appellant used, he was satisfied that the appellant used words to the effect that Mr Frecker should get out of the way, or the appellant would run him over. His Honour found that this was said in an aggressive manner.[3]
[3] ts 573 - 574.
Within seconds of Mr Frecker sitting on the car bonnet the appellant accelerated heavily. The sentencing judge found that the appellant did not give Mr Frecker an opportunity to move after shouting at him. Rather the appellant accelerated very suddenly, and this caused Mr Frecker to fall backwards on to the bonnet.[4]
[4] ts 574.
The appellant travelled a considerable distance before Mr Frecker fell from the vehicle. By reference to CCTV footage it was estimated that the appellant's vehicle travelled a distance equivalent to at least 10 car parking bays. One witness estimated that the distance was at least 50 m. Over this distance the vehicle reached a speed of between 41 km per hour and 56 km per hour. The appellant continued to accelerate until Mr Frecker came off the bonnet of the car.[5]
[5] ts 574 - 575.
The brake light of the vehicle became visible at the moment Mr Frecker began to fall. In evidence, the appellant said that his purpose in touching the brake was to slow down to let Mr Frecker off, or get him off, the car. The sentencing judge found that the reality was that, given the speed that the appellant had reached, any braking would propel Mr Frecker off the car. His Honour found that it was inevitable at that point that Mr Frecker was at least going to be seriously injured and quite possibly killed.[6]
[6] ts 575.
When Mr Frecker came off the bonnet his head struck the car park bitumen causing a severe head injury with extensive fractures to the skull and bleeding and bruising to the brain. He died shortly after as a result of that head injury.[7]
[7] ts 574.

Personal circumstances

The appellant was 33 years old at the time of the offences and 35 years old when he was sentenced. He was born in Perth and had a positive childhood, with no indications of substance abuse or abuse within the family. He has two older half‑sisters and one younger sister. He maintains a close and positive relationship with his parents and siblings.[8]
[8] ts 582 - 583.
The appellant is married and has two children, aged 17 and 5 years. Following the birth of their first child the appellant and his wife lost a child at birth. The appellant was very young at the time and separated from his wife for a period. He turned to illicit substances to cope with his grief.[9]
[9] ts 583.
The appellant claimed that he had not consistently used methylamphetamine after serving a sentence of 7 months' imprisonment in 2013. However, the sentencing judge noted that the appellant was convicted of being in possession of methylamphetamine on the day he was arrested for the present offences. His Honour concluded that the appellant had been less than frank about his continuing drug use.[10]
[10] ts 583.
The appellant left school after completing year 9 and gained employment as a glazier. He ceased that employment around the time of the death of his child and the onset of his substance abuse. After being released from prison in 2013 he obtained employment and completed a mature age apprenticeship as a carpenter. A reference from his employer attested to his good performance as a worker.[11]
[11] ts 583.
The appellant's two children have medical conditions that require treatment. The sentencing judge accepted that separation from his wife and children would be a hardship, but this was a consequence of the appellant's offending.[12]
[12] ts 584.
The appellant has an adult criminal record dating back to 2006, primarily consisting of drug and traffic‑related offences. The last offences prior to the present offending occurred in January 2012 and consisted of offences of reckless driving, failure to stop, driving without a motor vehicle driver's licence, driving with a blood alcohol content of greater than 0.08%, possession of methylamphetamine with intent to sell or supply and possession of stolen or unlawfully obtained property. A total effective sentence of 7 months' imprisonment was imposed for those offences. The appellant also committed offences of reckless driving and careless driving in 2006, for both of which he was fined. He has multiple offences of driving whilst disqualified and driving with in excess of prescribed amounts of alcohol in his blood.[13]
[13] ts 584 - 585.
The appellant wrote a letter expressing his 'immense regret and remorse' for his actions.[14]
[14] ts 587.
Character references were provided from the appellant's employer, his mother and his wife.[15]
[15] ts 582.

The pre-sentence and psychological reports

A pre-sentence report and a psychological report were prepared for the purposes of sentencing.
The pre-sentence report notes that the appellant has a history of offending and that he has been subject to a period of parole and conditional bail, during both of which he continued to use methylamphetamine. The report also states that whilst the appellant acknowledged his actions, he continued to feel that he acted in self‑defence. He denied that his decision‑making on the night was impacted by substance or alcohol use. He stated that he felt that he was at risk from the victim and the others who were present that night, though he accepted that his actions were disproportionate to the perceived threat. He acknowledged the suffering of the victim's family.[16]
[16] Pre-sentence report, 27 February 2023, 1 - 2.
The psychological report states that the appellant expressed a preference not to discuss the incident. When asked if he was under the influence of any substances at the time, he initially denied being so but then said he had smoked cannabis that morning and consumed six alcoholic drinks at a work function between 5.30 pm and 10.30 pm, though he did not consider that this affected him or had relevance to the incident. The appellant told the psychologist that he perceived that he was under attack and drove in the manner he did to avoid a dangerous encounter. He believed that he acted rashly and expressed regret and awareness of the distress caused to the victim's family.[17]
[17] ts 585; psychological report, 22 February 2023, 6.
The psychologist stated that the appellant failed to clearly identify the basis for his perception of a threat to his safety. He failed to consider other factors and displayed a restricted and inflexible cognitive process. He omitted details, was selective and provided some inconsistent information around his decision making and risk factors. He was described as having a dismissive response to questions regarding his substance use during the relevant period. He displayed a tolerant and permissive attitude to driving whilst substance‑affected. This lack of insight is relevant to the risk of re‑offending and the readiness to acknowledge accountability.[18]
[18] ts 572, 586.
The psychologist undertook an assessment of the risk of future violence. Factors relevant to this assessment were the appellant's limited insight, his recurrent irresponsible driving practices, his substance abuse, his thought processes and lack of adequate community supports. The risk of violent recidivism was assessed as low. The psychologist noted that the appellant did not display overt violent tendencies and the estimated risk seems specific to road-based interactions.[19]
[19] ts 566, 586.

Victim impact

Victim impact statements were provided by Mr Frecker's sister and father. Those statements referred to the fact that Mr Frecker was the father and primary carer for his two young children. The children are now cared for by his sister and her husband. The statements refer to the profound sense of loss and grief felt by the family and their difficulties in coping with that grief.[20]
[20] ts 588 - 589.

Sentencing remarks

The learned sentencing judge found that the appellant was well aware that Mr Frecker would have suffered a serious injury from falling from the car, given the speed at which it was travelling. This conclusion was supported by the jury's verdict of guilty on count 3, the charge of failing to report a motor vehicle incident occasioning death.[21]
[21] ts 575.
The sentencing judge rejected the appellant's evidence that he was acting in self‑defence when he accelerated. In particular, his Honour rejected the appellant's evidence that prior to accelerating he believed that Mr Frecker, or anyone else, was a threat to him or that he thought he might be robbed, assaulted or that his car might be damaged. His Honour said that evidence the appellant had given in that regard was contrived and untruthful.[22]
[22] ts 576.
The sentencing judge noted that Mr Frecker had made no threats either verbally or physically prior to the appellant's actions in accelerating his car. Mr Frecker's actions in sitting on the bonnet were not a threat as he had his back to the appellant and had folded his arms. These were described as the actions of a drunken man being cheeky or perhaps deliberately annoying but in no way aggressive. The other men were standing around doing nothing. Nothing that Mr Frecker did in the presence of the appellant gave him any cause for fear.[23]
[23] ts 576.
The sentencing judge also noted that the appellant's behaviour at the time was inconsistent with any suggestion that he was fearful of Mr Frecker. His car door was unlocked, and he did not make any attempt to lock it. When Mr Frecker stepped in front of the car, the appellant lowered his window and shouted aggressively at him. The sentencing judge found that the appellant was the aggressor and not Mr Frecker.[24]
[24] ts 576 - 577.
The sentencing judge also referred to the fact that the appellant was in a car. His Honour said that even if anyone around the car had posed a threat to him, he was protected by the car and could easily have driven away without having to drive in the highly dangerous way that he did. He could have backed out or driven slowly forward rather than driving in the manner he did, which afforded Mr Frecker no realistic chance to move.[25]
[25] ts 577.
The sentencing judge referred to evidence of prison telephone calls made by the appellant whilst he was on remand. In these calls the appellant spoke to friends and family about what had occurred. His Honour found that the calls revealed the appellant developing a false claim of self‑defence over time as he went over scenarios with his friends and family. The appellant came up with the self‑defence theory after the event in an effort to justify his actions.[26]
[26] ts 577.
In addition to revealing a false defence, the prison calls also revealed the true motivation behind the appellant's action, which the sentencing judge referred to as sheer arrogance, anger and rage. This was reflected in an extract from one of the calls which the sentencing judge referred to. In that call the appellant said:[27]
Cunt walked in front of the car. I stopped the car. He fucking sat on the bonnet, turned around and smiled, and I went, oh, you think it's funny, let's go, simple as that.
[27] ts 577 - 578.
The sentencing judge did find one aspect of the appellant's evidence plausible. That was that in the appellant's evidence he said that as he sped off and Mr Frecker slid onto the bonnet, he was saying to himself 'get off, get off, get off'. His Honour accepted that this was a reflection of the appellant's genuine reaction at the time. His Honour accepted that as the appellant accelerated he probably did not expect that Mr Frecker would remain on the bonnet of the car for as long as he did. He probably thought that Mr Frecker would roll off the bonnet fairly quickly after a short distance and that whilst he would be injured, he would not suffer a life‑threatening injury. Nonetheless, his Honour found that if the appellant did think in this way it was a completely unreasonable thing to have thought. Once the appellant accelerated, his deliberate decision to continue driving in that manner when Mr Frecker did not come off the car was inevitably going to result in tragic consequences.[28]
[28] ts 578.
The sentencing judge did accept that the appellant feared retribution from bystanders after the incident. This explained his acquittal on count 2 of the indictment, a charge of failing to stop. However, the failure to report the incident thereafter was said to demonstrate the appellant's indifference to Mr Frecker. His Honour found that the appellant gave no hint in his evidence that he had any concern about what had been done to Mr Frecker or for his welfare.[29]
[29] ts 575 - 576.
The sentencing judge noted that that the short prison sentence served by the appellant in 2013 appeared to have done the appellant some good as he was not convicted of any further offences following his release from prison until the present offences. His Honour then said:[30]
Relevant to your risk as a driver, you have previously been convicted of two separate offences of reckless driving, careless driving, failing to stop when called, failing to report an accident and failing to stop after an accident. You have also had your driver's licence suspended, driven without a licence on multiple occasions, had multiple drink-driving offences, as well as multiple speeding offences.
Your last conviction for reckless driving was moderately serious and involved you contravening traffic lights, driving on the wrong side of the road, speeding and narrowly missing other road users. That conviction was one of the offences that resulted in the term of imprisonment you received in 2013. Of course, you are not here to be punished for those past offences and your criminal history cannot increase the sentence that I impose. They do mean, however, that you cannot be given credit in mitigation for prior good character. Your prior traffic offences also provide an indication as to your future risk in driving motor vehicles.
[30] ts 584 - 585.
Although the appellant wrote a letter expressing his regret and remorse, the sentencing judge, having regard to the appellant's evidence, the prison telephone calls and the psychological report, was not satisfied that the appellant was genuinely remorseful or that he really appreciated the significance of having taken the life of another person. His Honour noted that, in the interview with the psychologist, the appellant had not accepted responsibility for his offending. Further, he had omitted details, was selective and provided inconsistent information regarding his decision making and risk factors. His Honour concluded that this was consistent with his assessment that the appellant had failed to acknowledge the reality of his actions or to accept responsibility for them.[31]
[31] ts 586.
The sentencing judge noted that the author of the psychological report had undertaken a structured risk assessment and identified a number of risk factors before concluding that the appellant's risk of violent recidivism was assessed as being low. In that regard his Honour said:[32]
Insofar as your danger as a driver is concerned, I find that assessment difficult to understand, particularly in light of the fact that you have previous convictions for reckless driving and do not accept responsibility for these offences.
On balance, I'm not satisfied that you are currently a low risk of reoffending. In the end, given that you're not going to be driving for a considerable period of time, it is not possible to predict that far into the future what kind of risk you will be. It will be up to you during your term of imprisonment to take meaningful steps, including by programs and education, to reduce or eliminate any risk that you pose by driving again.
[32] ts 586 - 587.

The sentencing judge referred to the need for any sentence to incorporate personal and general deterrence and said that the need to deter others from committing offences of this nature was an important consideration. He referred to the phenomenon of 'road rage' and said that the sentence should send a message to the community that such aggression has no place on the roads and that the community will be protected when it occurs.[33]
[33] ts 589 - 590.
The sentencing judge found that the appellant's negligent and reckless driving on this occasion was of short duration. He accepted that the appellant did not set out that night expecting that before returning home he would have seriously injured or killed another person. The offence involved a momentary decision by the appellant which arose out of arrogance, rage and indifference to the consequences of his actions.[34]
[34] ts 581.
The sentencing judge said the speed at which the appellant drove was a serious factor. It was the circumstances in which the appellant was driving that made the speed serious. Driving to a speed of between 41 km per hour to 56 km per hour at a time when there was an unprotected person on the bonnet of the car was what made the offence serious. Whilst Mr Frecker's behaviour may have been annoying that did not excuse the way in which the appellant drove. As the person in control of a dangerous thing such as a motor vehicle the appellant had a responsibility to take necessary care and precaution.[35]
[35] ts 581 - 582.
The sentencing judge found that the offence was also made more serious by the fact that other persons were standing nearby who could have been injured if the appellant had lost control of the car or if those persons had attempted to intervene.[36]
[36] ts 582.
The sentencing judge said that whilst this was not the most serious case of manslaughter involving a motor vehicle, and did not include aggravating factors such as driving under the influence of drugs or alcohol, it was nonetheless at the high end of offences for manslaughter involving the use of a motor vehicle and the appellant's criminality was described as high.[37]
[37] ts 582.
The sentencing judge also found that the appellant's failure to report the incident to the police was an offence at the higher end of the scale of seriousness. His Honour found that the appellant knew he had an obligation to report the incident, not least because he had a previous conviction for failing to report an accident. The failure on this occasion was not temporary. The appellant was arrested by police a little over 12 hours after the incident. The appellant had ample opportunity to do the right thing and report the incident.[38]
[38] ts 582.
The sentencing judge said that the failure to report was distinct offending and there should be some accumulation in the sentence imposed for that offence. Nonetheless, he reduced the sentence that would otherwise have been imposed for reasons of totality. But for totality considerations, a sentence of 2 years' imprisonment would have been imposed for the failure to report the offence.[39]
[39] ts 590 - 591.

Appellant's submissions

The appellant is self‑represented. He filed brief written submissions in support of his application and relied on those submissions at the hearing of the application.
The appellant submits that the sentence imposed was manifestly excessive in comparison with other cases involving a motor vehicle. He does not refer to any other specific cases. In support of his claim that the sentence is manifestly excessive the appellant refers to the risk assessment in the psychological report as being low. He suggests that the sentencing judge did not consider his letter regarding remorse. He submits that the sentencing judge's reference to imposing a sentence that sent a message to the community was a factor in the sentence being manifestly excessive. Finally, he submits that the sentencing judge was wrong to conclude that the appellant did not accept responsibility for his previous reckless driving charges, given that he had served a term of imprisonment for the earlier offending and did not commit any offences thereafter (until the present offences). He suggests that this was evidence of a change in his behaviour.

Merits of the appeal

An appeal on the ground that a sentence is manifestly excessive is an allegation of implied error. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate are well established. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law, the standard of sentencing customarily imposed with respect to offences of that type, the place the criminal conduct occupies on the scale of seriousness of offences of that type and the offender's personal circumstances.[40]
[40] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not of itself establish that the sentencing discretion has or has not miscarried. The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly excessive. The sentences imposed in comparable cases do not fix the range of a sound exercise of the sentencing discretion of a particular case. When an appellate court dismisses an appeal against sentence or resentences an offender, that decision does not of itself fix the upper or lower limit of the range. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalties and all relevant sentencing factors.[41]
[41] The State of Western Australia v PJW [2015] WASCA 113 [36] - [39].
The maximum penalty for the offence of unlawfully killing another person, that is, manslaughter, is life imprisonment: s 280(1) of the Criminal Code. The maximum penalty for failing to report a motor vehicle incident occasioning death is 10 years' imprisonment: s 56(2) of the Road Traffic Act.
The circumstances of this case were serious for several reasons. The offence did not merely involve a reckless disregard of other road users, but rather a deliberate and dangerous act that exposed a particular person to a high risk of harm. The appellant's decision to accelerate while Mr Frecker was sitting on his bonnet was a deliberate choice. He drove for about 50 m at speeds of up to between 41 km per hour and 57 km per hour before Mr Frecker fell from the bonnet onto the road. The risk of serious injury was obvious. The appellant failed to give any regard to the very real prospect that Mr Frecker would be seriously injured or killed. He acted out of anger. He failed to report the incident despite the clear possibility that Mr Frecker had been seriously injured.
There was very little by way of mitigation in the appellant's personal circumstances. He did not plead guilty. His claim of self‑defence was found to be contrived, was rejected by the jury and was inconsistent with his claims of remorse. He had made derogatory remarks about the victim in prison calls. Whilst the appellant had favourable character references, this was offset by his significant, and relevant, prior criminal record.
As to the suggestion that the sentencing judge failed to have regard to the appellant's letter expressing remorse, his Honour made express reference to that letter and explained why he did not accept that the appellant was genuinely remorseful. His Honour contrasted the regret that the appellant now felt with genuine remorse and referred to the appellant's prison telephone calls and the pre‑sentence and psychological reports. The finding that the appellant was not genuinely remorseful was one that was open to be made.
As to the appellant's reference to the risk assessment in the psychological report, the sentencing judge made specific reference to that assessment and explained why he did not accept it. It was open to his Honour to conclude that, in light of the appellant's prior offending, it had not been established that the appellant was a low risk of future offending.
As regards the complaint that the sentencing judge had erred in relying on the previous reckless driving offences, those offences were plainly relevant in assessing the appellant's character and risk of future offending. His Honour did not find that the appellant had failed to accept responsibility for those past offences. Indeed, he specifically noted that the appellant appeared to have obtained some benefit from the sentence imposed in 2013, in that he had obtained employment and not committed further offences until the present offending.
The sentencing judge was plainly not in error in referring to the importance of personal and general deterrence. His Honour made specific reference to the dangers of road rage incidents, of which this might be described as an extreme example. Personal and general deterrence were important factors in sentencing in this case.
The offence of manslaughter can occur in a very wide range of circumstances. Consequently, there is no established range of sentences for offences of this nature. In particular, there is no established range for offences of manslaughter involving the use of a motor vehicle. Cases of manslaughter arising from the use of a motor vehicle do not fall into a category which is less serious than other forms of manslaughter.
Although the appellant did not refer to any comparable cases, we have had regard to the cases of Beard v The State of Western Australia,[42] Francis v The State of Western Australia[43] and Byrne v The State of Western Australia,[44] all of which involved manslaughter offences resulting from use of a motor vehicle. In Francis, a number of earlier cases were also summarised. Each of those cases turned on its own particular facts, which reduces the value of comparisons. It must also be noted that in Francis and Byrne, the offenders pleaded guilty and received significant discounts for that reason. The sentences imposed in those cases provide no support for the appellant's claim that his sentence is manifestly excessive.
[42] Beard v The State of Western Australia [2015] WASCA 74.
[43] Francis v The State of Western Australia [2019] WASCA 43.
[44] Byrne v The State of Western Australia [2022] WASCA 64.
Taking into account the maximum penalty, the seriousness of the offence, the appellant's personal circumstances and any comparable cases, it is not reasonably arguable that the sentence of 9 years for the manslaughter offence was unreasonable or plainly unjust. The claim that that sentence is manifestly excessive is without merit.
Insofar as the appellant challenges the sentence for the failure to report offence, it could not be reasonably argued that the 12‑month sentence of imprisonment imposed for that offence, reduced from 2 years for totality reasons, was an excessive sentence having regard to the maximum penalty and the circumstances of the offence. That offence related to distinct and separate criminal conduct and a cumulative sentence was entirely appropriate. Furthermore, when viewed as a whole, the total effective sentence of 10 years' imprisonment was clearly not disproportionate to the total criminality.
For the above reasons it is not reasonably arguable that either of the individual sentences was manifestly excessive or that the total effective sentence was disproportionate to the total criminality. Leave to appeal should be refused and the appeal dismissed.

Orders

The orders we would make are:
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.
ID
Research Associate to the Hon Justice Hall
29 AUGUST 2023