The State of Western Australia v ADS - [2021] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ADS [2021] WASCA 99
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   19 FEBRUARY 2021
DELIVERED          :   2 JUNE 2021
FILE NO/S:   CACR 69 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

ADS
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DAVIS DCJ
File Number            :   IND 2120 of 2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of four offences - Offences comprised unlawful detention with intent to gain a benefit by a threat or demand (count 1), aggravated burglary (count 2), aggravated robbery (count 3) and the wilful destruction of items with intent to prevent the items from being used in evidence (count 4) - Individual sentences of immediate imprisonment of 3 years (for count 1), 3 years (for count 2), 3 years 4 months (for count 3) and 8 months (for count 4) - Total effective sentence of 7 years' imprisonment - Significant mitigation - Whether the individual sentences for counts 1, 2 and 3 were manifestly inadequate - Whether the total effective sentence infringed the first limb of the totality principle

Legislation:

Criminal Code (WA), s 132, s 332(2)(a), s 392(d), s 401(2)(ba)

Result:

Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Mr L M Fox SC
Respondent	:	Mr B W Standish

Solicitors:

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

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

CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Cotterill v The State of Western Australia [2013] WASCA 52
Eldridge v The State of Western Australia [2020] WASCA 66
Eriha v The State of Western Australia [2011] WASCA 167
Gleeson v The State of Western Australia [2019] WASCA 100
Gowan v The State of Western Australia [2016] WASCA 98
Greenfield v The State of Western Australia [2019] WASCA 29
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Hunter-Aragu v The State of Western Australia [2015] WASCA 80
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kolek v The State of Western Australia [2017] WASCA 180
Law v The Queen [2019] WASCA 81
Mamkin v The State of Western Australia [2017] WASCA 61
Mansour v The State of Western Australia [2015] WASCA 175
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Page v The State of Western Australia [2018] WASCA 76
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
QJS v The State of Western Australia [2015] WASCA 9
Ridley v The State of Western Australia [2013] WASCA 45
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Starr v The State of Western Australia [2011] WASCA 170
Taylor v The State of Western Australia [2016] WASCA 38
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Doyle [2017] WASCA 207
Tubb v The State of Western Australia [2007] WASCA 106
Winmar v The State of Western Australia [2018] WASCA 155
Woods v The State of Western Australia [2017] WASCA 179
YDN v The State of Western Australia [2018] WASCA 62

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was charged on indictment with four offences. All of the offending occurred on 4 September 2019.
Count 1 alleged, in essence, that the respondent unlawfully detained Barry Lathwell with intent to gain a benefit for the respondent by a threat and demand, contrary to s 332(2)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged, in essence, that the respondent, while in the place of Barry's Investments & Services Pty Ltd trading as Barry & Son Firearms & Military Collectables without its consent, committed the offence of stealing, and that the respondent was in company with another, contrary to s 401(2)(ba) of the Code.
Count 3 alleged, in essence, that the respondent stole from Mr Lathwell, with violence, firearms and ammunition the property of Barry's Investments & Services Pty Ltd trading as Barry & Son Firearms & Military Collectables and that:
(a)the respondent was in company with another;
(b)the respondent did bodily harm to Mr Lathwell;
(c)the respondent threatened to kill Mr Lathwell; and
(d)Mr Lathwell was of or over the age of 60 years,
contrary to s 392(d) of the Code.
Count 4 alleged, in essence, that the respondent, knowing that clothing, balaclavas, gloves and personal belongings of Mr Lathwell were or might be required in evidence in a judicial proceeding, namely the prosecution of the respondent in the District Court at Perth, wilfully destroyed them, with intent to prevent them from being used in evidence, contrary to s 132 of the Code.
The maximum penalty for each of counts 1, 2 and 3 is 20 years' imprisonment. The maximum penalty for count 4 is 7 years' imprisonment.
On 2 April 2020, the respondent was convicted, on his pleas of guilty, of the charged offences.
On 1 May 2020, Davis DCJ sentenced the appellant to individual terms of immediate imprisonment as follows:
(a)count 1: 3 years;
(b)count 2: 3 years;
(c)count 3: 3 years 4 months; and
(d)count 4: 8 months.
Her Honour reduced the sentence on count 3 from 4 years to 3 years 4 months in recognition of those matters referred to in the confidential schedule to these reasons which had been promised but would not be carried into effect until after her Honour imposed sentence. That constituted a reduction of about 16.5%.
The sentencing judge reduced the sentence on count 4 from 9 months to 8 months in the application of the totality principle.
Her Honour ordered that the sentence for count 1 and the sentence for count 4 be served cumulatively upon each other and cumulatively upon the sentence for count 3. Her Honour also ordered that the sentence for count 2 be served concurrently with the sentence for count 3. The total effective sentence was therefore 7 years' imprisonment. The total effective sentence was backdated to 21 December 2019. A parole eligibility order was made.
The State relies upon two grounds of appeal. Ground 1 alleges, in essence, that the individual sentence for each of counts 1, 2 and 3 was manifestly inadequate. Ground 2 alleges, in essence, that the total effective sentence infringed the first limb of the totality principle. On 17 July 2020, Buss P granted leave to appeal on those grounds.
We would allow the appeal. The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside. This court should resentence the respondent.

The facts and circumstances of the offending

At the time of the offending, the complainant, Mr Lathwell, was aged 81. He walks with the aid of a walking stick because of health issues relating to his back and shoulders. Mr Lathwell is the owner of a firearms dealer's business known as Barry & Son Firearms & Military Collectables. The business operates from a store in Beckenham.
At about 5.50 pm on 4 September 2019, Mr Lathwell closed the store and departed in his motor vehicle. The respondent and a co-offender (not yet charged) followed Mr Lathwell in their vehicle (a Mercedes Benz Sprinter van hired by the respondent). The offenders' van was fitted with registration plates which had been stolen earlier that day from a vehicle parked in Cannington. The offenders followed Mr Lathwell to the intersection of Albany Highway and Austin Avenue, Beckenham.
The offenders deliberately drove the van into the rear of Mr Lathwell's vehicle for the purpose of orchestrating a vehicle stop. One of the offenders approached Mr Lathwell and directed him to drive a short distance into McIntyre Way, Kenwick. Mr Lathwell drove as he was directed and the offenders parked behind his vehicle.
Mr Lathwell alighted from his vehicle and approached the driver's side of the offenders' van with the intention of exchanging details. The offenders alighted from their van. The offenders grabbed Mr Lathwell. They dragged and forced him into their van through the left sliding door, which was already open.
Mr Lathwell was punched to the face numerous times. He was threatened repeatedly that he would be killed if he did not assist the offenders by providing access to the store and the vaults of his business. Mr Lathwell's hands were placed behind his back and secured with handcuffs. His feet were tied together with cable ties. The offenders placed a cloth over Mr Lathwell's head. The cloth was affixed to his face by duct tape. The handcuffs were then removed and reattached to Mr Lathwell's hands at his front. He was struck on the leg with an object. He was also punched on various parts of his body and once on his head. The offenders removed Mr Lathwell's mobile telephone (which was later recovered) from his belt together with a small knife used by Mr Lathwell to open boxes. The offenders took Mr Lathwell's bag which contained personal items (a driver's licence, various cards, store keys, house keys and a garage remote control) from Mr Lathwell's vehicle. The respondent drove the offenders' van to Mr Lathwell's store. Upon arrival at the store, Mr Lathwell, acting under the threats that had been made, supplied the offenders with the alarm code to the security system and the access code to a vault. The offenders locked Mr Lathwell inside their van.
The offenders entered the store and removed a large quantity of long arm firearms (including shotguns and rifles) and ammunition. The offenders returned to their van. Mr Lathwell was struck with an object and asked to provide the access codes and keys to the safe which contained handguns. Mr Lathwell provided those details to avoid being assaulted again.
The offenders then took Mr Lathwell into the store. The handcuffs were removed and replaced with cable ties. The blindfold was removed. Mr Lathwell was taken to the safe which contained the handguns. The offenders threatened further violence against Mr Lathwell before he provided the codes to the safe. After the safe was unlocked, the offenders loaded a large quantity of handguns onto trolleys and wheeled them out of the store. At that stage Mr Lathwell managed to lock the door to the store and activated the duress alarm. The offenders departed. Police arrived at the store a short time later. Mr Lathwell was taken by ambulance to a hospital for assessment. He suffered bruising/swelling to his leg, wrists, ankles and above his right eye, and had a cut on his right index finger.
The offenders stole, in total, 141 firearms. The stolen firearms comprised about 24 long arm firearms (a mixture of shotguns and rifles) and about 116 handguns (a mixture of pistols and revolvers). The value of the firearms was about $215,000. About 10,700 rounds of assorted ammunition were stolen. The value of the ammunition was about $6,000.
At about 11.00 am on 4 September 2019, CCTV footage from the Bunnings store at Cannington captured the respondent purchasing cable ties and duct tape that were believed to have been used in the commission of the offences.
At about 7.30 pm on 9 September 2019, the respondent was stopped by police while he was driving a motor vehicle in Kewdale. The police searched the vehicle and found documents relating to a storage room at business premises in Forrestdale. Police executed a search warrant at the storage room. The respondent was present. Police found within the storage room three large metal toolboxes, a suitcase and storage bags. The toolboxes contained a large quantity of firearms. Numerous of the firearms had distinctive labels from Barry & Son Firearms & Military Collectables. The storage room also contained a large quantity of ammunition. CCTV footage at the business premises captured the respondent loading the toolboxes and other items into the storage room.
Police conducted an audit of the firearms stolen from Barry & Son Firearms & Military Collectables. That audit correlated with the firearms and ammunition located in the storage room at Forrestdale. All of the stolen firearms and ammunition were recovered.
On 10 September 2019, the respondent participated in two electronically recorded interviews with police. He made numerous admissions. As a result of those admissions, the respondent accompanied police to a location in Gooseberry Hill. At that location, police identified items that had been destroyed by fire. The respondent participated in a field interview at the Gooseberry Hill location. He admitted that he and the co-offender had driven to the location between 10.00 pm and 10.30 pm on the day of the offending with the intention of destroying the clothing they had worn while committing the offences as well as items taken from Mr Lathwell (including his wallet, glasses and keys). Partial remnants of the glasses and keys were found. The respondent's DNA was recovered from a cable tie and Mr Lathwell's jumper.

The sentencing judge's sentencing remarks

The sentencing judge recounted the facts and circumstances of the offending.
The information before her Honour included a pre‑sentence report dated 2 December 2019, a psychological report dated 19 November 2019 from a forensic psychologist, Ms Claire Lynn, and a victim impact statement dated 30 October 2019 from Mr Lathwell.
In addition to recounting the facts and circumstances of the offending, the sentencing judge noted:
(a)Mr Lathwell, who was aged 81, had problems with his back and shoulders and had recently undergone surgery for his physical ailments.
(b)The actions of the offenders were very traumatic for Mr Lathwell, who was extremely distressed and frightened for his life.
(c)As well as the bruising/swelling to his leg, wrists, ankle and above his right eye and the cut on his right index finger, Mr Lathwell suffered painful recurring problems with his back and shoulders as a result of the offending. Mr Lathwell also suffered emotional and psychological consequences; in particular, trauma, recurring nightmares and difficulties with sleeping.
(d)The offending caused financial and other consequences for Mr Lathwell as a result of his wallet, credit cards and keys having been stolen.
(e)The reports before her Honour indicated that the respondent had taken methylamphetamine and was affected by that drug at the time of the offending. Her Honour observed (correctly) that this circumstance was not mitigating.
(f)Her Honour did not accept the respondent's claim (recorded in the pre-sentence report) that he did not know what the co‑offender was planning. Her Honour said that it was apparent from a written statement made and signed by the respondent that there had been planning and discussions between the offenders in relation to the offences for some time before the offences were committed.
(g)The respondent said in his written statement that in the lead up to the offences he began watching Mr Lathwell's store a couple of times each week, especially around closing time, to ascertain Mr Lathwell's direction of travel when he left the store. The respondent admitted that, on one occasion, he had followed Mr Lathwell.
(h)The respondent hired the van that was used in the offending and stole the number plates that were affixed to the van.
(i)The respondent acted together with the co-offender in tying Mr Lathwell's wrists and feet. The respondent knew exactly what the co-offender had planned. The respondent was involved in the preparation for the commission of the offences.
(j)Her Honour said she had some difficulty accepting the respondent's denials that he had punched or struck Mr Lathwell, but found that even if the respondent did not personally assault Mr Lathwell, he did nothing to stop the violence.
(k)CCTV footage from Mr Lathwell's store depicted the respondent actively opening the store, assisting Mr Lathwell inside, sitting the victim down, actively removing firearms, loading the firearms and taking the firearms outside. The respondent was a joint offender with the co-offender throughout the whole incident.
Her Honour observed that there were a number of aggravating factors, especially in relation to counts 1, 2 and 3. First, the respondent was in company. Secondly, Mr Lathwell was vulnerable because of his advanced age and physical condition. Thirdly, the offending involved planning and preparation. Although her Honour accepted that the respondent was not 'the brains behind' the offending, the respondent was actively involved in the preparation to commit the offences, including carrying out surveillance of the store and Mr Lathwell, purchasing items needed for the offending and obtaining the van. Her Honour said that the respondent was 'actively and willingly involved in all aspect of this offending'. Fourthly, the offending involved some persistence. The whole incident occurred over a period of about two hours. During that period Mr Lathwell was detained and restrained, initially by handcuffs and then by cable ties. Fifthly, the offending involved actual and threatened violence. Bodily harm was inflicted on Mr Lathwell. Threats to kill were made to him. It did not matter whether the violence was done or the threats were made by the respondent or the co-offender. The respondent was involved and equally culpable. Sixthly, the nature of the property stolen, namely firearms and ammunition, increased the seriousness of the offending. Seventhly, the value of the property stolen (namely, about $221,000) was significant. Her Honour acknowledged, however, that the property stolen had been recovered. Eighthly, the offending was undertaken for financial reward. The respondent told the authors of the pre-sentence report and the psychological report that the co‑offender had promised that he would extinguish a drug debt of about $6,000 owed to him by the respondent and that the respondent would, in addition, receive $20,000 once the firearms had been sold. However, the respondent told the police on 10 September 2019 that the co‑offender intended to arrange for his friend to sell the firearms. They expected that the firearms would be sold for 'a couple of hundred thousand' and that amount would be split between the three of them. Her Honour found that it was unnecessary to make a finding as to the amount of the financial benefit the respondent expected to receive. Ninthly, all of the offences (including count 4) were committed while the respondent was on parole for previous offending.
The sentencing judge referred to the respondent's personal circumstances as follows:
(a)The respondent was aged 23 at the time of the offending and when sentenced.
(b)The respondent was born in Europe and came to Australia with his parents when he was very young. He had a normal childhood with a loving family.
(c)The respondent did not do well at school. He had learning difficulties about which he was teased and embarrassed. The respondent did not attend school beyond year 9. He struggles with reading and writing.
(d)The respondent's principal work as an adult has been as a painter.
(e)The respondent has had one long term relationship. He has a 6 year old son with whom he has little contact.
(f)The respondent's work history and relationships have been adversely affected by his drug use and time he has spent in prison.
(g)The respondent began using illicit drugs at the age of 15. He progressed to methylamphetamine at the age of 16 or 17.
(h)The respondent's criminal offending began when he was a juvenile. In April 2016 he was convicted of burglary, reckless driving and driving without an authority to drive. A suspended imprisonment order was imposed. In March 2017 he was convicted of a number of traffic offences for which he was sentenced to a term of immediate imprisonment. The respondent was therefore not of prior good character. Personal deterrence and the need to protect the community were important sentencing considerations.
(i)The psychological report referred to the respondent having suffered from anxiety and depression. However, Ms Lynn's main concern was the respondent's intellectual functioning. Ms Lynn was of the view that the respondent's intellect was in the extremely low range, with the potential presence of some intellectual limitation. Impulsivity, a lack of assertion and a thinking deficit were especially relevant to the respondent's offending.
(j)The respondent was at a medium risk of future offending.

Her Honour accepted that there were various mitigating factors. First, the respondent's pleas of guilty at the first reasonable opportunity. Her Honour recognised the pleas by allowing a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence she would otherwise have imposed for each offence. Secondly, the respondent's expressions of remorse and victim empathy. Thirdly, the respondent's relative youth and personal circumstances, including his low intellectual functioning. Fourthly, the matters referred to in the confidential schedule to these reasons.

Counsel for the State's submissions

Counsel for the State submitted in relation to ground 1 that the individual sentences for counts 1, 2 and 3 were manifestly inadequate.
As to count 1, being the offence of unlawfully detaining Mr Lathwell with intent to gain a benefit for the respondent by a threat or demand, contrary to s 332(2)(a) of the Code, counsel emphasised the seriousness of the offending on that count. In particular, counsel noted that the respondent and the co‑offender had staged a traffic accident in order unlawfully to detain an elderly stranger, with the intention of compelling Mr Lathwell to provide them with access to a firearms store and its secure vaults, for the purpose of stealing a large quantity of firearms to sell on the black market.
It was submitted that there is no tariff for the offence charged in count 1. Counsel referred to the sentencing outcomes in Tubb v The State of Western Australia;[1] Eriha v The State of Western Australia;[2] Starr v The State of Western Australia;[3] Mansour v The State of Western Australia;[4] and Page v The State of Western Australia.[5] Counsel argued that the facts and circumstances of those cases were materially different from the present case to such an extent that they were not reasonably comparable. It was submitted that there are no reasonably comparable cases against which to evaluate the individual sentence imposed for count 1.
[1] Tubb v The State of Western Australia [2007] WASCA 106.
[2] Eriha v The State of Western Australia [2011] WASCA 167.
[3] Starr v The State of Western Australia [2011] WASCA 170.
[4] Mansour v The State of Western Australia [2015] WASCA 175.
[5] Page v The State of Western Australia [2018] WASCA 76.
As to count 2, being the offence of aggravated burglary, contrary to s 401(2)(ba) of the Code, counsel emphasised that it was a significantly aggravating feature of this offence that the owner of the premises was detained while the burglary was being undertaken. Counsel also referred to the substantial commercial value and the inherently dangerous nature of the items that were stolen.
It was submitted that there is no tariff for the offence of aggravated burglary of commercial premises. Also, it was submitted that there are no comparable cases against which to evaluate the individual sentence imposed for count 2. However, according to counsel, the decisions in Herbert v The Queen;[6] Ridley v The State of Western Australia;[7] Taylor v The State of Western Australia;[8] Kolek v The State of Western Australia;[9] Winmar v The State of Western Australia;[10] and Eldridge v The State of Western Australia,[11] while not comparable with the present case, demonstrate that the individual sentence imposed for count 2 is unreasonable or plainly unjust.
[6] Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330.
[7] Ridley v The State of Western Australia [2013] WASCA 45.
[8] Taylor v The State of Western Australia [2016] WASCA 38.
[9] Kolek v The State of Western Australia [2017] WASCA 180.
[10] Winmar v The State of Western Australia [2018] WASCA 155.
[11] Eldridge v The State of Western Australia [2020] WASCA 66.
As to count 3, being the offence of aggravated robbery, contrary to s 392(d) of the Code, counsel noted that this offence is committed in a broad range of circumstances of varying levels of seriousness and is often committed in conjunction with other offences. It is therefore difficult to compare cases.
Counsel referred to a number of cases in which youthful offenders who had committed the offence of aggravated robbery and other offences had received total effective sentences ranging from 6 years 10 months' imprisonment to 7 years 6 months' imprisonment following pleas of guilty: QJS v The State of Western Australia;[12] Hunter-Aragu v The State of Western Australia;[13] Mamkin v The State of Western Australia;[14] and Woods v The State of Western Australia.[15]
[12] QJS v The State of Western Australia [2015] WASCA 9.
[13] Hunter-Aragu v The State of Western Australia [2015] WASCA 80.
[14] Mamkin v The State of Western Australia [2017] WASCA 61.
[15] Woods v The State of Western Australia [2017] WASCA 179.
However, according to counsel, the variation in the facts and circumstances of the offending and the variation in the combination of offences committed in those cases means that none of the cases are comparable to the present case.
It was submitted that there is no tariff for the offence charged in count 3. Also, it was submitted that there are no comparable cases against which to evaluate the individual sentence imposed for count 3.
Counsel made these contentions in relation to counts 1, 2 and 3:
(a)As to count 1, the kidnapping of the vulnerable and elderly victim was a very serious example of offending of this type. The offenders monitored Mr Lathwell's movements for some time prior to the offending and planned to carry out their ambush when they knew Mr Lathwell would be alone and most vulnerable. The staging of the traffic accident to lure Mr Lathwell from his vehicle to the offenders' van was especially serious. Mr Lathwell was subjected to a terrifying ordeal in which he feared for his life. The fact that the offence was committed to facilitate the aggravated burglary and the aggravated robbery greatly increased the seriousness of count 1.
(b)As to count 2, this offence was a high level example of an aggravated burglary of commercial premises, especially when regard is had to the manner in which the offenders gained entry to the store, the lethal potential of the items stolen, the purpose for which the firearms were stolen, and their value.
(c)As to count 3, this offence was a very serious example of an aggravated robbery and may properly be characterised as at the upper end of the range of seriousness. The offenders secured the compliance of the vulnerable, elderly victim through physical violence and intimidation, rough treatment and threats to kill. Mr Lathwell was clearly outmatched physically and was outnumbered. He was in no position to resist the offenders' demands.
Counsel for the State submitted in relation to ground 2 that the total effective sentence infringed the first limb of the totality principle.
It was submitted that, considered as a whole, the offences committed by the respondent were targeted, premeditated and calculated. The object of the offending was to steal a large quantity of lethal, highly regulated and controlled weapons and ammunition. The offenders intended to sell the stolen firearms on the black market for significant commercial gain. The irresistible inference is that the weapons were to be sold and distributed to criminals. There was a real risk that, if the weapons had been sold and distributed, they may have been used for dangerous and life threatening activities.
Counsel contended that the total effective sentence imposed on the respondent failed adequately to reflect the very high order of seriousness of the offending as a whole.
The facts and circumstances of the overall offending elevated to a significant extent the seriousness of the respondent's overall offending 'beyond that which is typically seen in examples of kidnapping, burglary and robbery offences', and greatly increased the importance of general deterrence.
Finally, counsel submitted that there is no basis, in the present case, for invoking the residual discretion.

Counsel for the respondent's submissions

Counsel for the respondent submitted in relation to ground 1 that the individual sentences for counts 1, 2 and 3 were not unreasonable or plainly unjust.
As to count 1, counsel for the respondent submitted that the standards of sentencing customarily imposed with respect to kidnapping are difficult to discern. However, counsel argued that the decision in Page indicates that the sentence of 3 years' immediate imprisonment imposed in the present case for count 1, which was ordered to be served cumulatively upon the sentence for count 4, was not unreasonable or plainly unjust. It was contended that the individual sentence imposed on the respondent for count 1 was not manifestly inadequate.
As to count 2, counsel submitted that there is no tariff for the offence of aggravated burglary of commercial premises, given the wide variety of circumstances in which the offence may be committed and the wide variety of the personal circumstances of offenders. It was contended that the aggravated burglary offence in the present case was very closely connected to the kidnapping offence and the aggravated robbery offence, and that the degree of overlap between the facts and circumstances of the offences was substantial. Counsel argued that the sentencing judge properly recognised 'the commonality involved in the aggravated burglary and aggravated robbery offences, and tailored the respondent's sentence accordingly'. It was submitted that the individual sentence imposed on the respondent for count 2 was well within her Honour's discretion. It was not manifestly inadequate.
As to count 3, counsel submitted that the sentence for count 3 must be viewed in the context of the wholly cumulative sentence imposed for count 1. The sentence imposed for what was 'an isolated aggravated robbery offence' was not manifestly inadequate.
Counsel for the respondent contended in relation to ground 2 that the total effective sentence was not unreasonable or plainly unjust. Counsel argued that the question of whether the individual sentences imposed on counts 1, 2 and 3 were manifestly inadequate was subsumed into the larger question of whether the total effective sentence infringed the first limb of the totality principle. It was submitted that, by structuring the sentences in the manner that she did, the sentencing judge imposed a total effective sentence that was commensurate with the overall criminality involved in the offences as a whole.
Counsel acknowledged that the respondent's overall offending was extremely serious. However, it was contended that the sentencing judge imposed a total effective sentence which properly reflected the circumstances of the offending, viewed as a whole. The total effective sentence paid due regard to the need for a sentence which achieved the aims of personal and general deterrence and the need to protect the community, while allowing the respondent the opportunity to address rehabilitation while serving a lengthy custodial sentence.
Finally, counsel said that he did not make any submissions in relation to the residual discretion.

The merits of the appeal

In the present case, the State does not assert that the sentencing judge made any express error.
The general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly excessive are well established. See, for example, Gleeson v The State of Western Australia.[16]
[16] Gleeson v The State of Western Australia [2019] WASCA 100 [57] ‑ [64].
Similarly, the general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. See, for example, Greenfield v The State of Western Australia.[17]
[17] Greenfield v The State of Western Australia [2019] WASCA 29 [24] ‑ [26].
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[18] The State of Western Australia v Doyle;[19] McAlpine v The State of Western Australia.[20]
[18] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39].
[19] The State of Western Australia v Doyle [2017] WASCA 207 [36].
[20] McAlpine v The State of Western Australia [2018] WASCA 195 [54].
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[21]
[21] Moore v The State of Western Australia [2019] WASCA 35 [51].
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[22] Nguyen v The Queen.[23]
[22] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48].
[23] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37].
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[24] Johnson v The Queen;[25] Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[24] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63.
[25] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26].
If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.
As we have mentioned, in the present case, the sentencing judge recognised the respondent's pleas of guilty at the first reasonable opportunity by allowing a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence she would otherwise have imposed for each offence.
After allowing the discount of 25% on the head sentence she would otherwise have imposed for each offence, her Honour then reduced each of the resulting sentences to recognise the mitigating factors of remorse, victim empathy, relative youth, personal circumstances (including low intellectual functioning) and (in relation to each of counts 1, 2 and 3) those matters referred to in the confidential schedule to these reasons which had occurred before her Honour imposed sentence.
Her Honour then reduced the resulting sentence for count 3 from 4 years to 3 years 4 months (a reduction of about 16.5%) in recognition of those matters referred to in the confidential schedule to these reasons which had been promised but would not be carried into effect until after her Honour imposed sentence.
Her Honour reduced the resulting sentence for count 4 from 9 months to 8 months in the application of the totality principle.
In the present case, those matters referred to in the confidential schedule to these reasons which had been promised but would not be carried into effect until after her Honour imposed sentence were mitigating in relation to each of counts 1, 2 and 3. Her Honour's decision to reduce the sentence for count 3, in recognition of those matters, but not the sentences for counts 1 and 2, was unorthodox. As we have mentioned, a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality. The fixing of an appropriate sentence for each offence includes, relevantly, taking into account all mitigating factors in relation to each offence.
It is therefore necessary for this court, in evaluating whether the individual sentences for counts 1 and 2 were manifestly inadequate, to bear in mind that those sentences were fixed without regard to the mitigating effect of those matters referred to in the confidential schedule which had been promised but would not be carried into effect until after her Honour imposed sentence. If this court were to decide that the individual sentence for count 1 or count 2 was manifestly inadequate, any resentencing by this court must be undertaken on the correct basis, namely on the basis that those matters referred to in the confidential schedule which had been promised but would not be carried into effect until after her Honour imposed sentence are to be taken into account as mitigating factors in determining the appropriate individual sentence for each of counts 1, 2 and 3.
In the present case, her Honour stated the individual sentences for counts 1, 2, 3 and 4 (ts 60). Later, when considering the application of the totality principle, her Honour reduced the individual sentence she would otherwise have imposed for count 4 from 9 months to 8 months (ts 61). It is apparent from her Honour's sentencing remarks, considered as a whole, that her Honour did not reduce any of the other individual sentences on account of totality.
Her Honour said that she took into account in considering the appropriate total effective sentence that the respondent had been held in custody between 10 September 2019 and 20 December 2019 in respect of his breach of parole and that there was 'another six days which [the respondent] still owe[d] for unserved parole days' (ts 61).
When an offender is to be sentenced for multiple offences which contain one or more common legal or factual elements, care must be taken by the sentencing court to avoid punishing the offender twice (or more) for the commission of the common elements. See Pearce [40]; Johnson [27], [34], [38].
No single correct mechanism exists for avoiding double (or more) punishment. For example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences. See Cotterill v The State of Western Australia;[26] Hunter-Aragu [33]; Gowan v The State of Western Australia.[27]
[26] Cotterill v The State of Western Australia [2013] WASCA 52 [27].
[27] Gowan v The State of Western Australia [2016] WASCA 98 [50].
In the present case, there was considerable overlap between the facts and circumstances of the offending on counts 1, 2 and 3. In particular:
(a)the offending on count 1 (being the unlawful detention of Mr Lathwell with intent to gain a benefit for the respondent by a threat or demand) began before the commission of counts 2 and 3 but continued while counts 2 and 3 were being committed; and
(b)the offending on count 3 (being the aggravated robbery) was committed while the offending on count 2 (being the aggravated burglary) was being committed.

However, the sentencing judge did not refer to the overlap before or in the course of formulating and stating the individual sentences for counts 1, 2 and 3.
Her Honour did not refer to the overlap until she was considering the application of the totality principle. Her Honour then said (ts 60 ‑ 61):
Now, here we have four serious offences. While counts 1 to 3 were committed during the same incident, and there is some factual overlap, each involves a different nature of offending. Count 4 was committed later in time and it also involves a different type of offending. So there has to be some accumulation of the individual sentences which I have set.
The sentencing judge did not refer to any reduction in the individual sentences on account of the overlap. Her Honour did order that the sentence for count 2 be served concurrently with the sentence for count 3, but ordered, relevantly, that the sentence for count 1 be served cumulatively upon the sentence for count 3.
In our opinion, while other approaches were available (see [72] above), the preferable approach to sentencing in the present case, for the purpose of avoiding double (or more) punishment, was:
(a)to impose the appropriate sentence for count 1 (being the unlawful detention of Mr Lathwell with intent to gain a benefit for the respondent by a threat or demand) having regard to the facts and circumstances of his unlawful detention throughout the incident when counts 1, 2 and 3 were committed and all other relevant sentencing factors;
(b)to impose the appropriate sentence for count 3 (being the aggravated robbery) having regard to the facts and circumstances of the aggravated robbery while that offence was being committed and all other relevant sentencing factors, but without regard to the facts and circumstances of Mr Lathwell's unlawful detention and the facts and circumstances of the aggravated burglary; and
(c)to impose the appropriate sentence for count 2 (being the aggravated burglary) having regard to the facts and circumstances of the aggravated burglary while that offence was being committed and all other relevant sentencing factors, but without regard to the facts and circumstances of Mr Lathwell's unlawful detention and without regard to the facts and circumstances of the aggravated robbery.
As we have mentioned:
(a)the maximum penalty for each of counts 1, 2 and 3 is 20 years' imprisonment; and
(b)the maximum penalty for count 4 is 7 years' imprisonment.
We have had regard to the case law cited by counsel for the State and counsel for the respondent in relation to previous sentences for the offences charged in counts 1, 2 and 3. It is apparent that there are no prior cases that are truly comparable to the offending in the present case. However, the case law does provide some guidance as to the general pattern of sentences for each charged offence.
The facts and circumstances of each of counts 1, 2 and 3 were extremely serious.
As to count 1, the offenders kidnapped a vulnerable and elderly victim. The offenders monitored Mr Lathwell's movements for some time prior to the offending. They planned to ambush Mr Lathwell when he was alone and most vulnerable. The staging of the traffic accident to lure Mr Lathwell from his vehicle to the offenders' van was a pernicious feature of the offending. Mr Lathwell was subjected to a very frightening ordeal. He was physically assaulted and threatened, including by threats to kill. Mr Lathwell feared for his life. He was unlawfully detained for a significant period, namely about two hours. Mr Lathwell has suffered emotional and psychological consequences from the offending, including trauma, recurring nightmares and difficulty with sleeping. The kidnapping was undertaken to facilitate the commission of the planned aggravated burglary and the planned aggravated robbery. Bearing in mind all of those features of the offending in relation to count 1, there is no doubt that count 1 was a very serious example of the offence created by s 332(2) of the Code. Defence counsel made a concession to that effect before the sentencing judge (ts 30).
As to count 2, the manner in which the offenders gained entry to the store highlighted the seriousness of their offending against commercial premises.
As to count 3, the offending involved the offenders stealing a large quantity of firearms and ammunition, having a substantial commercial value, for the purpose of selling the firearms and ammunition on the black market. The only reasonable inference is that the offenders intended to sell and distribute the firearms and the ammunition to criminals for a significant commercial gain. If the firearms and the ammunition had been sold and distributed to criminals, there was a real risk that they may have been used for dangerous and life threatening activities.
We have already referred to the aggravating factors of the offending, the respondent's personal circumstances and the mitigating factors. See [30] ‑ [32] above. The fact that all of the offences were committed while the respondent was on parole for previous offending was an egregious feature of his conduct.
Appropriate punishment, denunciation of the criminality, and personal and general deterrence were important sentencing considerations.
In our opinion, the sentence for each of counts 1 and 3 was not commensurate with the seriousness of the offence. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the respondent's personal circumstances and the mitigating factors), that the length of the sentence for each of counts 1 and 3 was unreasonable or plainly unjust.
We consider that, when the sentence for each of counts 1 and 3 is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)in the case of count 1, the vulnerability of Mr Lathwell;
(d)in the case of count 1, the absence of any discount for those matters referred to in the confidential schedule to these reasons which had been promised but would not be carried into effect until after her Honour imposed sentence;
(e)the general pattern of sentences for the offence in question;
(f)the importance of denunciation and personal and general deterrence; and
(g)all relevant sentencing factors, including the respondent's personal circumstances, the aggravating factors and the mitigating factors,
the sentence for each of counts 1 and 3 was not merely 'lenient' or 'at the lower end of the available range'.
Each sentence for counts 1 and 3 was substantially less than the sentence that was open to her Honour on a proper exercise of her discretion. Each of those sentences was manifestly inadequate.
Ground 1 has been made out in relation to each of the sentences for counts 1 and 3. It is unnecessary to consider ground 1 in relation to count 2. See [92] below.
In our opinion, the total effective sentence for counts 1, 2, 3 and 4 did not bear a proper relationship to the overall criminality involved in all of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. Significant weight had to be given to personal and general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were grave. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to her Honour on a proper exercise of her discretion.
Ground 2 has been made out.
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, two of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[28] The State of Western Australia v Cairns;[29] Sathitpittayayudh v The State of Western Australia;[30] YDN v The State of Western Australia;[31] Law v The Queen.[32]
[28] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9].
[29] The State of Western Australia v Cairns [2006] WASCA 178 [42].
[30] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29].
[31] YDN v The State of Western Australia [2018] WASCA 62 [53].
[32] Law v The Queen [2019] WASCA 81 [134].
As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, different and substantially higher sentences of immediate imprisonment should be imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

The outcome of the appeal and the resentencing of the respondent

As we have mentioned, counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney-General (NSW).[33]
[33] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34], [66].
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have mentioned, each of the sentences for counts 1 and 3 and the total effective sentence for counts 1, 2, 3 and 4 were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.
We would allow the appeal.
The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent.
At the hearing of the appeal, counsel for the respondent informed the court that the respondent is a cleaner in the control room, where the prison officers meet, and he is the only prisoner who has access to that location because he has earned some trust. The respondent has never breached the disciplinary requirements of the prison authorities. He has not been charged with any offences since he began serving his sentence. The respondent has commenced education courses.
Like her Honour, we would allow a discount of 25% pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty. We have taken into account (and allowed discounts for) the other mitigating factors; notably, the respondent's expression of remorse and victim empathy; his relative youth and personal circumstances (including his low intellectual functioning); his progress while in custody; and (in relation to each of counts 1, 2 and 3) those matters referred to in the confidential schedule to these reasons which occurred before her Honour imposed sentence. We have also taken into account the aggravating factors mentioned by her Honour. We have adopted the approach set out at [77] above for the purpose of avoiding double (or more) punishment in the resentencing of the respondent.
Prior to applying a discount (in relation to each of counts 1, 2 and 3) for those matters referred to in the confidential schedule to these reasons which had been promised but would not be carried into effect until after her Honour imposed sentence, we would exercise the sentencing discretion afresh by imposing individual sentences of immediate imprisonment in respect of the counts in the indictment as follows:
(a) count 1: 5 years 10 months;
(b)count 2: 3 years;
(c)count 3: 5 years 10 months; and
(d)count 4: 9 months.
We would allow a discount of:
(a)10 months for each of counts 1 and 3;
(b)6 months for count 2; and
(c)20 months for the total effective sentence,
in respect of those matters referred to in the confidential schedule to these reasons which had been promised but would not be carried into effect until after her Honour imposed sentence (and after this court resentences the respondent).
Accordingly, subject to the application of the totality principle, the new individual sentences of immediate imprisonment in respect of the counts in the indictment are as follows:
(a)count 1: 5 years;
(b)count 2: 2 years 6 months;
(c)count 3: 5 years; and
(d)count 4: 9 months.
We take into account, in determining the appropriate total effective sentence, that the respondent was held in custody between 10 September 2019 and 20 December 2019 in relation to his breach of parole and that when he was sentenced by her Honour there was another six days which the respondent still owed for unserved parole days.
We would reduce the new individual sentence for count 3 from 5 years to 4 years in the application of the totality principle.
We would order that the new sentence for count 3 (4 years) be served cumulatively upon the new sentence for count 1 (5 years) and that the other new sentences be served concurrently with each other and concurrently with the new sentence for count 1. The new total effective sentence in respect of the counts in the indictment is therefore 9 years' imprisonment.
The new total effective sentence of 9 years' imprisonment should be taken to have taken effect on 21 December 2019. A parole eligibility order should be made. The respondent will be eligible to be considered for release on parole when he has served 7 years in custody calculated from 21 December 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
2 JUNE 2021