The State of Western Australia v Mackey - [2017] WASCA 204

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACKEY [2017] WASCA 204

CORAM: BUSS P
BEECH JA
HALL J

HEARD: 25 AUGUST 2017

DELIVERED : 2 NOVEMBER 2017

FILE NO/S: CACR 171 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JOHN EDWARD MACKEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 1405 of 2015

Catchwords:

Criminal law - State appeal against sentence - Grievous bodily harm - Whether sentence manifestly inadequate - Whether total effective sentence infringes first limb of the totality principle

Legislation:

Criminal Code (WA), s 297

Result:

Appeal allowed
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant: Mr L M Fox
Respondent: Ms F Cain

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Genevieve Cleary

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

Butler v The State of Western Australia [2012] WASCA 249
CMB v Attorney‑General for New South Wales [2015] HCA 9; (2015) 256 CLR 346
Djiagween v The State of Western Australia [2012] WASCA 141
Ellis v The State of Western Australia [2013] WASCA 220
Field v The State of Western Australia [2013] WASCA 209
Hobby v The State of Western Australia [2011] WASCA 197
Holden v The State of Western Australia [2011] WASCA 238
Mercanti v The State of Western Australia [2009] WASCA 109
The State of Western Australia v Ellement [2016] WASCA 1
The State of Western Australia v Ghilardi [2015] WASCA 61
The State of Western Australia v Smith [2016] WASCA 153
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
Ward v The State of Western Australia [No 2] [2010] WASCA 208

JUDGMENT OF THE COURT: This is a State appeal against sentence.
The respondent was convicted after trial of one count of doing grievous bodily harm and one count of stealing a motor vehicle. He was sentenced to 2 years 6 months' immediate imprisonment on the first count and 9 months' immediate imprisonment on the second count. The sentence on the second count was ordered to be served concurrently. Accordingly, the total effective sentence was 2 years 6 months' immediate imprisonment. A parole eligibility order was made.
The appellant contends that the sentence imposed on count 1 was manifestly inadequate and that the total effective sentence infringed the first limb of the totality principle. Leave to appeal on those grounds was granted by Mazza JA on 20 January 2017. For the reasons that follow the appeal should be allowed and the respondent resentenced.

The facts

The facts found by the sentencing judge can be summarised as follows. The respondent and the complainant, Mr Jason Sillankorva, were friends, or at least good acquaintances, because of their mutual methylamphetamine use. On 4 March 2015 the respondent was a passenger in Mr Sillankorva's car. They drove to Sinagra with the intention of meeting with a drug dealer from whom they were planning to obtain methylamphetamine.
The respondent received a text message from his partner where she alleged that Mr Sillankorva had engaged in sexual relations with her. The respondent became very upset and angry. He told Mr Sillankorva that he wanted to be dropped home immediately and that he wanted to move out of the house that he shared with his partner (ts 278).
The respondent reached down into the footwell of the passenger side of the car and pulled out a knife. He then attempted to stab Mr Sillankorva. There were a number of attempts which Mr Sillankorva, though driving the car, blocked with his arm. However, on the third or fourth attempt the respondent was able to stab Mr Sillankorva in the abdomen.
After being stabbed Mr Sillankorva stopped the car and got out. The respondent then got into the driver's seat and drove off. He made no attempt to assist Mr Sillankorva or to call an ambulance. The car was later found abandoned. The car keys were located at the home of another person (ts 279).
Sometime after Mr Sillankorva had been left injured on the road, a passing driver stopped and assisted him. Mr Sillankorva was taken to hospital. He suffered a very serious abdominal wound. The uncontested medical evidence was that he attended at the emergency department of Royal Perth Hospital on 4 March 2015 and underwent immediate emergency surgery. The report as to his injuries and treatment contained the following details:
(1)The stab wound to the left abdomen caused the left epigastric artery to actively bleed.
(2)The left side of the diaphragm had been cut or lacerated and needed to be repaired or sutured.
(3)There was a transected costal margin injury to two left side ribs. Those ribs were broken and needed repair.
(4)The skin, fat and muscle layer located on the anterior upper abdomen had been cut or lacerated and required repair or suturing.
(5)Over 2 litres of blood was found within the abdominal cavity.
(6)Emergency treatment included a laparotomy, rib fixation, diaphragm repair, anterior abdominal wall repair and ligation of the bleeding artery.
(7)The injuries were life endangering. In particular, without surgical intervention, the epigastric artery would likely have continued to bleed leading to hypotension (low blood pressure) and possible death.
(8)Mr Sillankorva was discharged on 8 March 2015 after undergoing review by the trauma surgical team, a clinical psychologist, an occupational therapist, a physiotherapist and a social worker (ts 113 ‑ 115).
In his evidence at the trial the respondent gave a different account of what had occurred. He claimed that Mr Sillankorva had become upset when the respondent said he wanted to go home because he, Mr Sillankorva, did not want to miss out on obtaining drugs that day. The respondent claimed that it was Mr Sillankorva who pulled out a knife and that he accidentally stabbed himself when the respondent tried to take the knife off him. The sentencing judge said that this version 'just did not make sense' and acknowledged that it had been clearly rejected by the jury (ts 279).

Victim impact

Mr Sillankorva gave evidence at the trial. He said that after he got out of the car he applied pressure to the wound in an attempt to stop the bleeding. When taken to hospital he was placed in an induced coma for two days and given emergency surgery. He said that he still suffered pain in the area where the knife glanced off a rib and that it had not healed correctly. He also said that he had been diagnosed with post‑traumatic stress disorder (PTSD) and hypervigilance (ts 74 ‑ 75).
In his victim impact statement Mr Sillankorva stated that he suffers constant internal pain. He said that the PTSD and hypervigilance left him unable to engage in social situations, that he is anxious about leaving his home and that he is unable to interact normally with his wife and son. He also stated that he had been unable to work due to anxiety, weight gain and PTSD and that this had caused him financial hardship. The sentencing judge acknowledged that these were serious consequences of the offending (ts 279 ‑ 280).

Personal circumstances

The respondent was 46 years old at the time of the offence and 48 at the time of sentencing. He told the author of the pre‑sentence report that he had a disturbed childhood as a result of his father's heavy alcohol use and violent behaviour. He spent his early years in Victoria. He left home at age 11 and has had little contact with his family since. He moved to Western Australia in 1991 (pre‑sentence report dated 26 October 2016, page 3).
The respondent was in a relationship with his former partner for 18 years and for 15 of those he was her registered carer. This was because she had serious mental health issues, including paranoid schizophrenia. As at the sentencing date she was a full‑time patient at Graylands Hospital. The respondent told the author of the pre‑sentence report that the 15 years he spent as his partner's carer were very stressful and socially isolating (pre‑sentence report dated 26 October 2016, page 3).
The respondent and his former partner had a daughter together who was 13 years old at the time of sentencing. He remains in contact with his former partner despite no longer being in a relationship and has taken their daughter to visit her in hospital. He had commenced a new relationship with a much younger partner who also had some anxiety issues. They had recently had a baby together.
The respondent has a good work history and was employed at the time of the offending. He does not have any health issues. He does, however, have a long‑standing drug addiction. He has previously been engaged in programs for substance abuse, including one in 2014, but these programs were not successful. He told the author of the pre‑sentence report that he had stopped using methylamphetamine in March of 2016 (pre‑sentence report dated 26 October 2016, page 3).

Sentencing remarks

The sentencing judge described the seriousness of the offending in the following terms:
Your offending wasn't only serious because of the significant injury and its consequences, but also because you attacked Mr Sillankorva with a knife and out of the blue while he was driving and unable to defend himself. Further, although you knew that you must have stabbed him, you left him standing on the road without offering any assistance or calling an ambulance (ts 280).
Her Honour accepted that Mr Sillankorva did not provoke the attack. She also said that it was not a planned act but a spontaneous reaction to the receipt of the text message. She said that it was 'not a sustained attack' (ts 280).
As regards the stealing charge, her Honour noted that the jury had rejected the respondent's version of events that he had no choice but to drive away in the car because Mr Sillankorva had tried to stab him with a knife.
After referring to the respondent's personal circumstances her Honour said that she accepted that he had been trying to be a decent citizen and that he was hard‑working, kind and committed to those who are dependent on him. She said that it seemed that the respondent's addiction to drugs had led him to associate with people who were not pro‑social. The respondent had not expressed any remorse and still tried to justify the stabbing as an accident to the author of the pre‑sentence report (ts 282).
Her Honour then said:
So as far as mitigation is concerned, I do take into account that you have tried to be a good citizen for the last 10 years at least, and that you have not committed any further serious offending for the last 10 years. You also have a consistent record of employment for the last two years. I also accept there is no history of violent offending on your record, although that in itself is not mitigatory (ts 283).
Her Honour considered that the circumstances of the offence were too serious to allow for a suspended sentence of imprisonment. She then said:
Now, in fixing a term of imprisonment I've had regard to the limited mitigating circumstances that I have referred to and, Mr Mackey, I'm going to give you a term which I think is a very fair and reasonable term of imprisonment. In other words, I could have given you much more, but I will take into account that you've tried to be a decent citizen over the last 10 years, that this was not a premeditated offence and that perhaps it ended up much more seriously than you had conceived at the time. So in my view a sentence of 2 1/2 years' imprisonment for the grievous bodily harm is appropriate.
In relation to count 2, the stealing of the motor vehicle, an appropriate term of imprisonment in all the circumstances is 9 months.
Now, both of these offences were different types of offences, but I accept that they were part of one continuing episode of offending. Accordingly, I will order that both sentences should be served at the same time. Considering the total sentence in relation to your overall criminality involved in all the offences that appears to me to be a fair sentence (ts 284).
The sentence was backdated to 19 September 2016 to take into account the 39 days that the respondent had spent in custody. An order was made that the respondent would be eligible for parole.

The respondent's criminal record

One of the factors that influenced the sentencing judge was her view that the respondent had tried to be a good citizen for the last 10 years and had not committed any further serious offences in that period. This assessment was overly generous and is not borne out by an examination of the respondent's criminal record.
Between 2004 and 2006 the respondent committed a series of offences including burglary, fraud, stealing and carrying a prohibited weapon. He was sentenced to terms of imprisonment for those offences. In the 10 years that followed his offending diminished, but it would not be correct to say that he had not committed any further serious offences. On 11 June 2013 he was convicted of reckless driving and sentenced to 15 months' immediate imprisonment. On 30 January 2013 he was convicted of possession of methylamphetamine and fined $2,000. On 10 February 2012 he was convicted of burglary and fined $500. On 22 December 2008 he was convicted of breaching a violence restraining order and fined $400. Throughout this period he committed numerous offences of driving without authority resulting in terms of imprisonment in 2008 and 2013.
The respondent's criminal record was not aggravating, but he clearly did not have the mitigating factor of prior good character. Further, it was not accurate to say that he had tried to be a good citizen and not committed any serious offences in the previous 10 years. To the contrary, there had been further serious offending that showed a continuing disrespect for the law. The only positive thing that could be drawn from the record was that there were no previous offences of violence, although (as the sentencing judge correctly acknowledged) that was not itself mitigatory.

The grounds of appeal

The grounds of appeal are as follows:
1.The sentencing judge erred in law by imposing a sentence in relation to count (1) that was so inadequate as to manifest error, having regard to:
(a)the maximum penalty for the offence;
(b)the serious nature of the offence and the circumstances in which it was committed;
(c)the need for the sentence to adequately reflect general and personal deterrence, as well as appropriate punishment for offending of this nature;
(d)the personal circumstances of the respondent; and
(e)the requirement that the sentence be consistent with the standards of sentencing customarily observed for offending of this nature.
2.The sentencing judge erred in law in imposing a total effective sentence of two years six months' imprisonment that infringed the first limb of the totality principle.

The appellant's submissions

The appellant submits that the sentence on count 1 is manifestly inadequate having regard to the fact that the respondent was convicted after trial, the seriousness of the offence and the absence of any substantial mitigating factors. The appellant also says that the offence was aggravated because the victim was in a confined space and occupied with driving. The use of a weapon and the abandoning of the victim were also said to be aggravating.
As to the second ground, the appellant accepted that this complaint flowed from the alleged inadequacy of the sentence on count 1. Counsel for the appellant said that if a more significant sentence had been imposed on count 1 it was unlikely that there would be a complaint about the total sentence. Nonetheless, the appellant submitted that a wholly concurrent sentence on count 2 was inappropriate in the circumstances of this case.

The respondent's submissions

The respondent submits that the sentence imposed on count 1, while lenient, was not outside the range that would be expected for an offence of this nature, given the sentencing judge's view of the existence of mitigating factors.
As regards the respondent's criminal record, it was conceded that there were convictions in the 10 years following 2006. However, it is submitted that there was a marked change after 2006, from a mix of property, dishonesty and traffic offences to a majority of traffic offences. This was said to be significant for a person with an entrenched criminal history and that it was open to the sentencing judge to give it mitigatory weight.

Ground 1 - manifest inadequacy

The principles applicable to the determination of an appeal against sentence on the basis of manifest inadequacy are uncontroversial. The court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing judge has made a material express or implied error of law. A claim of manifest inadequacy asserts the existence of an implied error.
In order for this ground to succeed, the appellant must demonstrate that the sentence imposed on count 1 was plainly unjust or unreasonable in all of the circumstances.
In determining whether or not a sentence is manifestly inadequate the sentence must be viewed in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender.
The maximum penalty for doing grievous bodily harm to another person is 10 years' imprisonment: s 297(1) of the Criminal Code (WA).
As to the seriousness of this offending, in Trompler v The State of Western Australia [2008] WASCA 265 [9] ‑ [11], Wheeler JA referred to three factors which are generally of significance when assessing an offender's criminality in respect of an offence of doing grievous bodily harm, namely:
(a)the nature of the harm which results;
(b)the nature of the act which causes the injury; and
(c)the background to and circumstances of the offence.
The harm that resulted from the respondent's assault was serious. This is clearly reflected in the fact that Mr Sillankorva was hospitalised for four days and had emergency surgery. The injuries caused have had profound effects upon the complainant and his family.
The act which caused the injury was a single blow with a knife. The use of a weapon is an aggravating factor. The blow was the third or fourth attempt by the respondent to strike Mr Sillankorva. It was delivered with such force that two of Mr Sillankorva's ribs were also broken. Clearly the respondent intended to harm Mr Sillankorva and forcefully used a weapon in order to do so.
The respondent's attack on his victim was entirely unprovoked. The use of a weapon on the driver of a moving car seriously aggravated this offence. Mr Sillankorva was vulnerable and limited in his ability to defend himself. An attack in these circumstances could easily have caused the victim to lose control of the vehicle, with a consequential risk to the safety of the occupants and other road users. Despite the obvious seriousness of the injury caused, the respondent abandoned Mr Sillankorva at the scene and made no attempt to call an ambulance.
As regards the respondent's personal circumstances, there was very little by way of mitigation. The respondent had been convicted after trial and had sought to deny responsibility in his evidence. He continued to justify his conduct to the author of the pre‑sentence report. His criminal record was not aggravating, but there was nothing mitigating in it. The fact that in the 10 years following 2006 he had not committed the same number of serious offences as he did before that time could not support a conclusion that he had in that 10 year period been of good character. There was some suggestion that the respondent may have used drugs on the day of the offence and that this had contributed to his state of mind, but that was not a mitigating factor.

As to comparable cases, the range of sentences customarily imposed is relevant for the purpose of ensuring broad consistency. However, other cases do not fix the range of a sound exercise of sentencing discretion in a particular case. The fact that a sentence is within the range of other sentences previously imposed for similar offences does not necessarily establish that there is an appropriate exercise of the sentencing discretion in a particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in a particular case miscarried. When this court dismisses an appeal against sentence or when it allows an appeal against sentence and resentences an offender the decision does not, of itself, fix the upper or lower limit of the range. Ultimately, it is the duty of this court to decide each case on its own particular facts and circumstances.
The doing of grievous bodily harm to another is an offence that can be committed in a wide variety of circumstances by offenders whose subjective personal circumstances can also vary greatly. In Trompler, Wheeler JA, with whom Buss JA agreed, concluded that the post‑transitional range for offences which were towards the upper end of the range of seriousness but not of the most serious kind was between 3 to 5 years' imprisonment [19]. McLure JA (as her Honour then was) identified the post‑transitional range for offences of this type as being between 8 months and 5 years 4 months' imprisonment [38]. The sentence of 8 months at the lower end of that range was noted by her Honour as being 'undoubtedly merciful' [37]. The cases falling within that range that were reviewed by McLure JA all involved a plea of guilty.
The ranges identified in Trompler have been consistently referred to with approval in subsequent cases, for example, Mercanti v The State of Western Australia [2009] WASCA 109; Ward v The State of Western Australia [No 2] [2010] WASCA 208; Hobby v The State of Western Australia [2011] WASCA 197; Djiagween v The State of Western Australia [2012] WASCA 141; The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308; Ellis v The State of Western Australia [2013] WASCA 220 and The State of Western Australia v Ghilardi [2015] WASCA 61.
The respondent relies on six cases which are suggested as being the most factually similar to the present case. They are The State of Western Australia v Smith [2016] WASCA 153; The State of Western Australia v Ellement [2016] WASCA 1; Field v The State of Western Australia [2013] WASCA 209; Holden v The State of Western Australia [2011] WASCA 238; Hobby and Mercanti. Some of those cases involve the aggravated form of the offence which carries a higher maximum penalty (14 years): s 297(3).
In Smith, the offender entered early pleas of guilty to offences that included one of aggravated grievous bodily harm. The aggravation was that the offence occurred in the context of a domestic relationship. The offender struck the victim with a hammer, but the victim's injuries were not of the most serious kind. She suffered three lacerations which required suturing. The wound exposed her skull and bled profusely. The offender was aged 25 at the time of the offence and 26 when he was sentenced. His personal circumstances and antecedents were unfavourable. A State appeal against a total effective sentence of 2 years 2 months' immediate imprisonment was allowed and the offender was resentenced to 4 years 8 months' immediate imprisonment. The State's appeal against a sentence of 18 months' immediate imprisonment for the offence of aggravated grievous bodily harm was allowed and the appellant was resentenced on that count to 3 years 6 months' immediate imprisonment. A 25% discount was allowed on the new individual sentence for the aggravated grievous bodily harm count for the plea of guilty.
In Ellement, the offender pleaded guilty (for which a 10% discount was given) to one count of aggravated grievous bodily harm done to the mother of a woman who was his partner at the time of the offence. The circumstance of aggravation was that the victim was over the age of 60 years. The offence involved grabbing and pushing the victim, leaving her with bruises and a fracture of the neck of the femur, which necessitated a total hip replacement. The offender was aged 25 at the time of the offence. A State appeal against a suspended sentence of 18 months' imprisonment was allowed and an immediate sentence of the same length was imposed. This was acknowledged to be a lenient sentence but reflected the fact that the State did not seek to disturb the length of the sentence but only challenged the fact it was suspended. The dominance of personal and general deterrence as considerations in sentencing for offences such as this was referred to.
In Field, the 34‑year‑old offender was convicted on his fast‑track plea of guilty of one offence of doing grievous bodily harm. The offence involved an unprovoked single punch attack on the manager of a liquor store who had refused service to the offender. The victim's jaw was detached from his skull. The offender in Field was remorseful and the sentencing judge accepted that the offence was at the lower end of the range of offences. A sentence of 14 months' immediate imprisonment was imposed. The offender's application for leave to appeal was refused and the appeal dismissed.
In Holden, the 21‑year‑old offender was convicted on a fast‑track plea of guilty for an offence of doing grievous bodily harm. The victim was unknown to the offender who had attacked the victim for no discernible reason while holding a glass in his hand. The offender was intoxicated and had no recollection of the offence but accepted responsibility and displayed genuine remorse and insight into his offending. The appeal against the sentence of 4 years 3 months' immediate imprisonment was allowed and a sentence of 3 years' immediate imprisonment substituted.
In Hobby, a 25‑year‑old offender entered a fast‑track plea of guilty to one count of doing grievous bodily harm. The offender did not directly cause the injuries suffered by the complainant. The injuries were caused by one of the co‑offenders, who struck the complainant to the back of the head, causing him to fall to the ground, apparently unconscious. He suffered bleeding on his brain, a broken jaw, broken teeth and lacerations. Before the complainant was attacked, the appellant and his co‑offenders formed a common intention to prosecute an unlawful purpose. This purpose involved restraining or subduing the complainant in order to recover money alleged to have been stolen by him. The escalation of the attack into the co‑offender's action of causing grievous bodily harm to the complainant was a reasonably foreseeable consequence of the prosecution of the unlawful purpose. The offender did not intend that serious harm should be inflicted and administered first aid to the complainant at the scene whilst waiting for an ambulance and the police to arrive. He made repeated expressions of remorse at the scene and full admissions to the police. He made repeated contact with the investigating officers for the purpose of checking on the complainant's welfare. In that case the State conceded that the term of 2 years 6 months' immediate imprisonment was manifestly excessive in the circumstances. The appeal was allowed and the offender was resentenced to a term of 1 year 8 months' immediate imprisonment.
In Mercanti, the 41‑year‑old offender was convicted after trial of one offence of doing grievous bodily harm and sentenced to 2 years 4 months' immediate imprisonment. The assault was not premeditated and involved two or three punches, one of which connected with the complainant's jaw. There was no weapon involved. The complainant suffered a broken jaw and lost several teeth but the injury was not life‑threatening and did not leave any significant long‑term disability. An appeal against the sentence of 2 years 4 months' immediate imprisonment was dismissed. Miller JA noted that the sentence imposed in that case fell below the bottom end of the range of sentences identified by Wheeler JA in Trompler.
All of those cases, except Mercanti, involved offenders who had pleaded guilty, unlike the respondent. A number of them had significant mitigating factors, such as youth and remorse, which the respondent does not have. Many of them did not have the aggravating feature of the use of a weapon which applied to the respondent's offence. Even taking into account the higher maximum penalty in two of those cases, the sentence imposed on the respondent appears, in all the circumstances, to be significantly inconsistent with the sentences imposed in those cases.
The sentence imposed on the respondent was also below the bottom of the range identified by Wheeler JA in Trompler for offences which are towards the upper end of the range of seriousness but not of the most serious kind. There was nothing in the circumstances of the offence or in the personal circumstances of the respondent that could justify the sentence that was imposed in this case. He did not have the benefit of youth or prior good character. Bearing in mind that the respondent was convicted after trial, the use of a knife as a weapon, the abandonment of the seriously injured complainant and the residual trauma suffered by the complainant, the disparity between the sentence imposed on the respondent and sentences imposed in other reasonably comparable cases is suggestive of significant error. Having regard to those factors together with all of the other relevant considerations, including the serious features of the respondent's offence to which we have referred and the absence of any significant mitigating factors, it is apparent that the sentence imposed on this count was not a proper exercise of the sentencing discretion. The sentence was manifestly inadequate. It was substantially outside the sentencing range open to her Honour on a proper exercise of her discretion. Ground 1 should succeed.

Ground 2 - totality

The second ground can be dealt with shortly. The sentencing judge justified a wholly concurrent sentence on the second count on the basis that the two offences formed part of the same course of conduct. The so‑called 'one transaction rule' is not a rule at all. The fact that offences occur as part of the same course of conduct will not necessarily result in wholly concurrent sentences: Butler v The State of Western Australia [2012] WASCA 249 [53]. Sometimes wholly or partly cumulative sentences are required to ensure that the total sentence properly reflects the offender's overall criminality in all the circumstances. The relevant consideration is whether wholly or partly cumulative sentences would infringe the first limb of the totality principle in that they would produce a total sentence that was disproportionate to the total criminality involved in all the circumstances of the offending as a whole.
In the present case, the stealing of the motor vehicle occurred after the grievous bodily harm offence was complete. There were no common elements between the two offences. The stealing of the motor vehicle was a separate offence made more serious by the fact that it involved leaving Mr Sillankorva injured and helpless on the road. On the face of it, subject to the totality principle, the stealing offence called for some accumulation. Given the term imposed for count 1, the totality principle did not justify an order that the sentence on count 2 be wholly concurrent. To impose a wholly concurrent sentence in these circumstances was inappropriate because it contributed to a total effective sentence that was disproportionate to the seriousness of the total offending. Ground 2 should also be allowed.
Given that the respondent must be resentenced on count 1, the significance of this ground is largely subsumed by that exercise. There is no suggestion that the length of the term imposed on count 2 was inappropriate. However, totality might well justify reducing the sentence on count 2 as part of the resentencing exercise.

Conclusion

We would allow the appeal, set aside the sentences imposed on the respondent and resentence him.
Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) 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 for New South Wales [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
In our opinion, there is no basis, in the present case, for invoking the discretion. The individual sentence for count 1 and the total effective sentence imposed by the sentencing judge 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 the preservation of proper sentencing standards.
Taking into account all of the factors we have referred to above and the importance of general and personal deterrence, we would impose a sentence of 3 years 6 months' immediate imprisonment on count 1. A sentence of 9 months' immediate imprisonment on count 2 is appropriate, but having regard to totality we would reduce this to 6 months' immediate imprisonment to be served cumulatively on the sentence imposed on count 1. This produces a total effective sentence of 4 years' immediate imprisonment. That sentence should be backdated to 19 September 2016. The respondent should be eligible for parole.