The State of Western Australia v Maxton
[2023] WASCA 174
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MAXTON [2023] WASCA 174
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 21 AUGUST 2023
DELIVERED : 31 AUGUST 2023
PUBLISHED : 6 DECEMBER 2023
FILE NO/S: CACR 116 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
TRYMAIN PAUL MAXTON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BLACK DCJ
File Number : IND 1030 of 2022
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted of one count of unlawfully doing grievous bodily harm and one count of driving a motor vehicle and failing to stop immediately after the occurrence of an incident which occasioned grievous bodily harm to another person - Pleas of guilty - Respondent sentenced to 3 years 2 months' immediate imprisonment for the count of unlawfully doing grievous bodily harm and to 12 months' immediate imprisonment for the count of failing to stop immediately after the occurrence of the incident - Individual sentences ordered to be served concurrently - Whether the primary judge made an express error in sentencing the respondent - Whether the sentence for the count of unlawfully doing grievous bodily harm was manifestly inadequate - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 297(1)
Road Traffic Act 1974 (WA), s 54(1), s 54(3)(b)
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Mr R F Owen |
| Respondent | : | Mr A G Elliott |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Patti Chong Lawyer |
Case(s) referred to in decision(s):
Allen v The State of Western Australia [2017] WASCA 203
Baker v The State of Western Australia [2018] WASCA 15
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bowe v The State of Western Australia [2017] WASCA 166
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Gilbert v The State of Western Australia [2020] WASCA 148; (2020) 94 MVR 58
Hornell v The State of Western Australia [2021] WASCA 137
Kere Kere v The State of Western Australia [2016] WASCA 189
Lee v The State of Western Australia [2018] WASCA 156
Littlely v The State of Western Australia [2022] WASCA 102
McAlpine v The State of Western Australia [2018] WASCA 195
Mercanti v The State of Western Australia [2009] WASCA 109
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386
Peake v The State of Western Australia [2015] WASCA 239
Reynolds v The State of Western Australia [2017] WASCA 214
The State of Western Australia v Babakarkhil [2022] WASCA 59
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24
The State of Western Australia v Mackey [2017] WASCA 204
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Saleh [2020] WASCA 205
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62
REASONS OF THE COURT:
This is a State appeal against sentence.
The respondent was convicted on his pleas of guilty of two counts in an indictment.
Count 1 alleged that on 18 July 2021, at Albany, the respondent unlawfully did grievous bodily harm to Russell Wynne, contrary to s 297(1) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, a motor vehicle driven by the respondent was involved in an incident occasioning bodily harm to Mr Wynne; the respondent failed to stop immediately after the occurrence of the incident; and the incident occasioned grievous bodily harm to Mr Wynne, contrary to s 54(1) read with s 54(3)(b) of the Road Traffic Act 1974 (WA).
The maximum penalty for count 1 is 10 years' imprisonment. The maximum penalty for count 2 is 14 years' imprisonment.
On 8 November 2022, Black DCJ sentenced the respondent to 3 years 2 months' immediate imprisonment for count 1 and 12 months' immediate imprisonment for count 2. Her Honour ordered that the individual sentences be served concurrently. The total effective sentence was therefore 3 years 2 months' immediate imprisonment. Her Honour backdated the sentences to 6 January 2022 to take account of time the respondent had spent in custody solely in relation to the offences. Her Honour made a parole eligibility order. Her Honour also made a violence restraining order in favour of Mr Wynne.
Initially, the State appealed on two grounds. Ground 1 alleges, in essence, that the individual sentence for count 1 was manifestly inadequate. Ground 2 alleges, in essence, that the total effective sentence infringed the first limb of the totality principle. On 16 February 2023, Buss P granted leave to appeal on those grounds.
At the hearing of the appeal on 21 August 2023, the court granted the State leave to amend its grounds of appeal by the addition of a new ground 3. The new ground 3 alleges, in essence, that the primary judge's finding that the fact that the respondent refrained from any involvement in the physical fighting, and the fact that the respondent had not intended to become involved in the physical fighting, substantially mitigated the respondent's offending conduct and should result in the imposition of a lower sentence for count 1, was erroneous.
On 31 August 2023, the court made orders as follows:
(1) Leave to appeal granted on ground 3.
(2) Appeal allowed.
(3)The primary judge's sentencing decision, including the sentences imposed and the orders made by her Honour apart from the violence restraining order, be set aside.
(4)The respondent is resentenced to 4 years 8 months' immediate imprisonment on count 1 and 4 months' immediate imprisonment on count 2.
(5)The new individual sentences are to be served cumulatively.
(6)The new total effective sentence is therefore 5 years' immediate imprisonment.
(7)The new total effective sentence is to be taken to have taken effect on 6 January 2022.
(8)The respondent is eligible for parole.
These are our reasons for making those orders.
The facts and circumstances of the offending as alleged by the prosecutor
The facts and circumstances of the offending, as alleged by the prosecutor at the sentencing hearing before the primary judge, were as follows.
At about 1.00 am on 18 July 2021, there was an altercation between two rival groups on Stirling Terrace, Albany.
The first group comprised Britney Ford, her partner Lincoln Colbung, and their friends Paul Hayward, Tayte Woods, Corey Woods, and the respondent (the Respondent's Group).
The second group comprised Mr Wynne, Anthony Coyne, and his brother Joel Coyne (the Victim's Group).
The genesis of the altercation was a feud that occurred several hours previously at a party.
After the party, the Respondent's Group drove to Stirling Terrace in a Honda Civic vehicle owned by Ms Ford. The respondent drove the vehicle.
After the party, the Victim's Group drove to Stirling Terrace in a Honda Accord vehicle. Joel Coyne drove the vehicle.
The Respondent's Group and the Victim's Group gathered on Stirling Terrace with the intention of fighting each other.
After they arrived at Stirling Terrace, the Respondent's Group walked directly towards the Victim's Group. A witness, Aaron Eades, was walking behind the Respondent's Group. He heard Mr Colbung say that he wanted to fight Joel Coyne. Mr Colbung then removed his jumper in anticipation of a fight.
At the start of the altercation, Joel Coyne and Anthony Coyne were armed. Anthony had a 30 cm long kitchen knife concealed under his jumper. Joel had a metal pole that was about 1 m in length.
Ms Ford returned to her Honda Civic and retrieved various weapons from the front passenger seat, including a machete that was about 60 cm in length and a metal chain that was about 2 m in length.
Ms Ford handed the machete to Mr Hayward and the chain to Corey Woods. Mr Hayward was seen on CCTV footage holding the machete in his hand and raising the machete above his head. Corey Woods was shown on CCTV footage swinging the metal chain in an attempt to strike other people involved in the altercation.
Mr Hayward, while armed with the machete, chased Mr Wynne, who fell to the ground. Mr Hayward struck Mr Wynne twice with the machete while Mr Wynne was on the ground. At least one of the blows was to Mr Wynne's head, and caused him to bleed.
Shortly after Mr Hayward attacked Mr Wynne with the machete, he was disarmed by unknown means. Mr Wynne gained possession of the machete. A few seconds later, the respondent and two other members of his group began jogging away from the altercation towards the Honda Civic.
At the same time, Mr Hayward was being attacked by other members of the Victim's Group. Anthony Coyne grabbed Mr Hayward, and Joel Coyne struck Mr Hayward several times with the metal pole. Mr Hayward fell to the ground. Mr Wynne struck Mr Hayward with the machete. Anthony Coyne kicked Mr Hayward in the back. Anthony Coyne jumped and stomped on Mr Hayward's head with his feet.
Next, Mr Hayward stood and was chased by the Victim's Group. Mr Wynne struck Mr Hayward to his head area with the machete and caused Mr Hayward to fall to the ground. Joel Coyne ran towards Mr Hayward and struck his head with the metal pole. Anthony Coyne kicked Mr Hayward in the head.
At 1.20.53 am, CCTV footage showed the respondent getting into the driver's seat of the Honda Civic. Corey Woods, Tayte Woods and Mr Colbung entered the vehicle as passengers.
A witness, Michael Holland, emerged from a nightclub and saw men brawling with weapons in the street. Three of the men ran towards the Honda Civic. One of the men shouted several times, 'Hit him with the car', as the men were getting into the vehicle.
Meanwhile, the Victim's Group walked towards the road. Ms Ford assisted Mr Hayward. About 30 seconds later, the Victim's Group returned to the footpath. Anthony Coyne, who was still holding the kitchen knife, and Joel Coyne, who was still holding the metal pole, threatened associates of Mr Hayward who were endeavouring to assist him. As a result, the associates moved away from Mr Hayward.
At 1.21.31 am, CCTV footage showed Mr Wynne striking Mr Hayward with the machete.
At the same time, the respondent reversed the Honda Civic from a parking bay about 80 m away. The respondent drove the vehicle in an easterly direction towards the altercation.
As the respondent was driving on Stirling Terrace, the Victim's Group moved from the footpath, where Mr Hayward was being assisted by Ms Ford and at least one other person, towards the street, outside 108 Stirling Terrace.
At 1.21.31 am the Victim's Group was standing in the fourth parking bay adjacent to the eastbound lane of Stirling Terrace. The respondent was travelling east towards the group. Three seconds later, the respondent's vehicle reached the western edge of the first parking bay, about 27 m from the point of collision. The respondent accelerated slightly before deliberately moving his vehicle from left to right with the intention of frightening the Victim's Group. As the respondent swerved left, his vehicle encroached into the fourth parking bay where the Victim's Group was standing.
Anthony Coyne and Joel Coyne leapt onto the footpath. Mr Wynne sought to evade the respondent's vehicle by lurching onto the road. As Mr Wynne lurched onto the road and about half a second after swerving left, the respondent swerved to the right. The respondent swerved to the right to correct the direction of travel of his vehicle without any intention of striking Mr Wynne.
However, the front of the respondent's vehicle struck Mr Wynne, who then made contact with the bonnet and windscreen. Mr Wynne's action in lurching onto the road was a reasonable response to the manner in which the respondent was driving his vehicle.
The respondent's vehicle was travelling at about 56 to 61 km an hour when it struck Mr Wynne.
After he was struck by the respondent's vehicle, Mr Wynne was propelled into the air. He landed in the westbound lane before sliding towards the kerb.
The respondent's vehicle sustained damage, including a dent to the bonnet and a dent on the roof. The windscreen was smashed in front of the driver's seat.
The respondent knew that his vehicle had struck Mr Wynne. The respondent failed to stop at the scene of the incident immediately after its occurrence as required by s 54(1) of the Road Traffic Act.
The respondent continued to drive his vehicle in an easterly direction on Stirling Terrace. He drove at an average speed of 80 km an hour to his father's house in Lockyer.
At 1:32 am an ambulance arrived at the scene of the collision. Mr Wynne was taken to Albany Health Campus. He was then transported to Royal Perth Hospital in a critical condition.
Mr Wynne suffered the following injuries:
(a)traumatic brain injury;
(b)base of skull fracture;
(c)right zygomatic arch fracture;
(d)right leg fracture (specifically tibial plateau and fibula fractures); and
(e)head lacerations including a partially amputated right ear.
The prosecutor clarified at the sentencing hearing that the head lacerations, including the partially amputated right ear, were caused by Mr Hayward and not by the respondent (ts 26).
Mr Wynne was placed in an induced coma. His treatment included the insertion of a vascular filter (to prevent pulmonary emboli) and a tracheostomy (to facilitate breathing). His leg fractures were treated by the application of an external fixator and the insertion of an intramedullary nail.
On 27 July 2021, Mr Wynne was transferred from the intensive care unit to a neurosurgery ward.
On 27 October 2021, Mr Wynne was discharged from Royal Perth Hospital after three months and ten days as an in‑patient. He was transferred to the SRS Acquired Brain Injury Unit at Fiona Stanley Hospital.
Mr Wynne requires full time care. He is in a minimally conscious state. Mr Wynne is non‑verbal. He relies upon an attendant propelled wheelchair. His nutrition is maintained through PEG feeds. It is likely that Mr Wynne will have a significant level of residual disability. He is likely to require long term supportive care.
On 18 July 2021, the respondent was arrested. On 19 July 2021, he participated in an electronically recorded interview with police. The respondent declined to answer any questions.
On various occasions between 23 July 2021 and 10 August 2021, while he was in custody, the respondent discussed the events the subject of the charges against him with family and friends. During these discussions the respondent made the following statements:
(a)'They seen me swerve towards them';
(b)'They got the camera of the car and all of us hopping in the car';
(c)'The only reason I did what I did was because they were fucking smashing my cousin's head with a fucking machete and a baseball bat';
(d)'Cos I hit him with the car you know';
(e)'I know I fucked up and shit … but I didn't intend on doing what I did';
(f)[after discussion about whether Mr Wynne was a 'vegetable'], 'I don't care, he jumped in the way'; and
(g)'They can't prove that I was driving, yet'.
Defence counsel's response to the facts and circumstances of the offending as alleged by the prosecutor
Defence counsel's response to the facts and circumstances of the offending, as alleged by the prosecutor at the sentencing hearing before the primary judge, was as follows.
During an exchange between defence counsel and her Honour:
(a)Defence counsel said that 'insofar as the facts relate to [the respondent] and the role that he played in driving the vehicle that struck Mr Wynne, those facts are accepted' (ts 41).
(b)Defence counsel then stated that there was an exception to the respondent's acceptance of the facts as stated by the prosecutor, namely that the respondent 'did not deliberately drive into Mr Wynne' (ts 41).
(c)Defence counsel said that her Honour's formulation of the proposition that the respondent 'wanted to scare [the Victim's Group] into stopping what they were doing' was 'probably right' (ts 43).
(d)As regards the Respondent's Group and the Victim's Group gathering in the street with the intention of fighting each other, defence counsel asserted that when the respondent drove his group to Stirling Terrace there was no intention at that stage to fight anyone (ts 43).
(e)Defence counsel added that when the two groups engaged in a fight the respondent 'stood back and was nothing more than a passive onlooker until the time he hopped into [the vehicle]' and drove to assist his cousin Mr Hayward (ts 43 ‑ 44).
(f)Defence counsel said that when the respondent drove the Honda Civic vehicle to Stirling Terrace he was unaware that there were weapons in the vehicle (ts 44). Defence counsel noted that the vehicle belonged to Ms Ford and that she had the weapons in the vehicle (ts 44).
The timing of the respondent's pleas of guilty
Initially, the respondent was charged with attempted murder and failing to stop at the scene of the collision to render assistance. On 20 July 2021, he first appeared in court on those charges.
On 27 October 2021, the initial charges were adjourned to a disclosure/committal hearing.
On 16 December 2021, the State invited a negotiated plea to the charges on which the respondent pleaded guilty.
On 26 April 2022, the respondent confirmed that he would plead guilty to the charges on which he ultimately pleaded guilty.
The primary judge's sentencing remarks and the respondent's personal circumstances and antecedents
The primary judge referred to the facts and circumstances of the offending as alleged by the prosecutor (ts 72).
Her Honour said that she accepted that it was 'never [the respondent's] intention to strike [Mr Wynne] with [his] car' (ts 72). Her Honour then said that it was 'just a terribly tragic combination of circumstances' (ts 72).
The primary judge said that she would make some findings about the facts and circumstances of the offending (ts 72 ‑ 73). Her Honour then made these findings:
(a)The respondent was with 'a group of people from [his] group … who became annoyed and increasingly angry about conduct relating to another group' (ts 73).
(b)By the time the respondent got into the Honda Civic vehicle and drove into Stirling Terrace, the respondent was 'aware that [people in his group] were mad and angry and, given that these people were known to [him], … it must have been at least on [the respondent's] mind … that some kind of physical fight was going to break out' (ts 73).
(c)It cannot have been 'lost to [the respondent] that that was the likely consequence of driving [his group of people] there' (ts 73).
(d)The respondent 'drove them, knowing there was going to be some kind of fight' (ts 73).
(e)The respondent was not 'the sort of person who was going to go and get involved' in the fight (ts 73). No one handed the respondent a weapon and he did not arm himself with a weapon. He did not scream from the vehicle. The respondent did nothing, even when the assaults were occurring (ts 73).
(f)When the respondent saw that Mr Hayward had been struck, he did not run to his aid. The respondent ran away and got into the vehicle. The respondent did not want to be involved. He did not consider himself to be a fighter. He wanted to leave 'the two groups just to fight it out amongst themselves' (ts 73).
(g)The respondent was not 'in any way encouraging what was happening during the fight before [he] got [into] the [vehicle]' (ts 73).
(h)What the respondent saw 'before [he] left the scene was what appeared to [him] as being a heavy assault upon [his] cousin [Mr Hayward] and [he] held … a genuine fear that if [he] didn't do something [his] cousin may be hurt even worse' (ts 74). That is the circumstance in which the respondent 'then went and got [the] car' (ts 74).
(i)It was not to the respondent's credit that he went to Stirling Terrace 'in the first place knowing they were going to fight' (ts 74). However, 'the only time [the respondent] decided to actually actively do anything was when [he] genuinely feared for [his] cousin and feared that things were going to get worse if [he] didn't intervene' (ts 74).
(j)The reason the respondent drove the car at the group was 'to try and stop them from doing what they were doing'. The respondent was trying to protect his cousin by trying 'to scare them into stopping' (ts 74). The respondent 'used [his] car as a means of trying to deter them from what they were doing' (ts 74).
(k)The respondent 'turned the car so as to straighten and get back on the road and undoubtedly drive off' (ts 74). However, '[u]nfortunately and tragically, one of the members of the group jumped in the same direction as [the respondent] had just turned [his] car and [the] car collided with him' (ts 74).
(l)That was not a consequence that the respondent intended and it was not a consequence that the respondent actually thought about at the time. However, the respondent 'should have realised that that was possible' (ts 74). In particular, 'to get that close to the group on a street where people were on the footpath was an incredibly dangerous thing to do' (ts 74).
Her Honour rejected the prosecutor's submission that the respondent's offending was at 'the upper end' of seriousness for offences of unlawfully doing grievous bodily harm (ts 75). However, her Honour accepted that the consequence of what the respondent did was 'pretty much as bad as it can get for a grievous bodily harm' and that it was 'hard to imagine injuries much worse' (ts 75).
The primary judge then made these observations (ts 75):
I find that on the one hand, driving your car at a group of people is an incredibly dangerous and risky thing to do. But nonetheless, I take into account that you were swerving your car away from the group. You clearly were able to avoid hitting anyone else. However, at the end of the day, it was always inevitable that someone might not move in the way you expected and that an accident could occur. And I mean an accident in a colloquial, not a legal, way.
Her Honour concluded that the respondent's conduct fell 'somewhere in about the middle of a range, if there was such a range that existed' (ts 75).
Next, the primary judge described the circumstances of the offending as 'extenuating' (ts 75):
I do, however, find the circumstances to be extenuating in your favour to the extent that, having said what I did about you driving there in the first place, I accept that you actually refrained from any involvement at all in this. You kept right out of it and would have kept right out of it had you not panicked that your cousin was at risk of something very bad happening to him, having already seen him assaulted, and that is a matter that does, in my view, substantially mitigate your conduct and will lead to a sentence lower than had those circumstances not existed.
Her Honour referred in some detail to the respondent's personal circumstances and antecedents. The information before her Honour included a pre‑sentence report dated 2 November 2022 and a psychological report dated 3 November 2022 from Ms Erin Sweeny.
The respondent was aged 23 at the time of the offending and was 24 when sentenced. The primary judge discounted the sentences she would otherwise have imposed to take account of the respondent's youth (ts 75 ‑ 76).
Her Honour observed that, although the respondent had 'come from a good family', he had in recent times become involved with people who had violent tendencies.
The respondent has in fact a significant prior criminal record. His criminal history began when he was aged 14. The respondent's convictions as an adult include the following:
(a)in 2017, two offences of trespass on a place without lawful excuse; and gaining a benefit by fraud;
(b)in 2018, possession of stolen or unlawfully obtained property; multiple offences of stealing; possession of a prohibited drug; possession of a controlled weapon; multiple offences of giving false personal details to police; obstructing public officers; disorderly behaviour in public; and multiple offences of breach of bail; and
(c)in 2019, three offences of aggravated robbery; possession of a prohibited weapon; damaging property; and breach of a bail undertaking.
One of the offences of aggravated robbery involved the respondent stomping on a person's head.
On 30 June 2020, the respondent received a total effective sentence of 2 years 4 months' immediate imprisonment, with eligibility for parole, for the three offences of aggravated robbery.
On 6 November 2020, the respondent was released on parole. On 18 July 2021, he committed the offences in question. On 22 July 2021, the Prisoners Review Board cancelled the respondent's parole.
In the middle of her sentencing remarks the primary judge engaged in the following exchange with the respondent (ts 76 ‑ 77):
BLACK DCJ: … If you can't get your life together after this, then I'm not sure there's anything anyone can do to help you. This, I hope, is your wake‑up call. I'm told you've got a two‑year‑old. Is that right?
ACCUSED: Yeah.
BLACK DCJ:All right. Have you seen your two‑year‑old while you've been in custody? Do you want to see your two‑year‑old?
ACCUSED: Yeah.
BLACK DCJ:Do you want your two‑year‑old to grow up with dad in gaol?
ACCUSED: No.
BLACK DCJ:Do you want to be - what sort of role model do you want to be to your kid?
ACCUSED: A leader.
BLACK DCJ:Yes. What sort of dad do you want to be? Do you want to be a dad who’s involved with their kid and takes the kid to school and ‑ ‑ ‑
ACCUSED:Yeah (indistinct).
BLACK DCJ:‑ ‑ ‑ looks after them? Yes. So do you want your son to end up, when he’s older, sitting somewhere like you are in a court being sentenced?
ACCUSED: No.
BLACK DCJ:Do you want him to go to gaol? Do you reckon there's something you can do to stop him?
ACCUSED:I don't know(?).
BLACK DCJ:What? Do you reckon being there for him might be a good start?
ACCUSED: Yeah.
BLACK DCJ:Making sure he goes to school? [Making] sure he has good friends who are good influences? [Making] sure that you find the members of your family who are good people who can support him, and he grows up in a protected environment with his family? Yes? You're his dad. You're his dad, and you're the one person who will determine in a big way how his life turns out. I hope that’s going to be a motivation for you, Mr Maxton, because you're not doing this for yourself anymore, you're doing it for him, too.
And you know what? You’re also doing this for Mr Wynne, because for his family at the moment, they're sitting here devastated, and devastated at what's happened. And they're looking at you knowing you're the person who drove the car that struck him. And the one thing you owe to them is to turn your life around and make it count, and make sure you don't do to anyone else's family what you've done to that family. That's on you, now. You understand?
ACCUSED: Yeah.
BLACK DCJ: Okay.
Her Honour then resumed her sentencing remarks.
The primary judge recorded that she had taken into account the pre‑sentence report and the psychological report. Ms Sweeny's recommendations included:
(a)The respondent would benefit from intervention to improve cognitive skills in order to increase his consequential thinking and problem solving and to deal with impulsivity.
(b)The respondent would also benefit from general offender programmes which tackle offence‑supportive beliefs, provide emotional management and assist with peer refusal and assertiveness.
(c)The respondent would also benefit from psychological counselling to assist in the development of strategies to manage symptoms associated with anxiety and depression and to explore the origin of those symptoms.
(d)The respondent requires strong boundaries to manage himself when around negative others.
In July 2020, the respondent's son was born. At the time the respondent was in custody.
The respondent has a limited work history. He has had some issues with substance abuse.
Her Honour referred in some detail to victim impact statements she had received from Mr Wynne's mother. The offending has had a calamitous effect upon Mr Wynne and his family.
The primary judge noted that the respondent had spent 172 days in custody as a result of his parole in relation to the three offences of aggravated robbery having been cancelled. Her Honour also noted that the respondent had spent an additional 162 days in custody solely in relation to the offences in question.
Her Honour gave the respondent a 20% discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his plea of guilty in relation to each count. Her Honour stated that the pleas of guilty were of 'enormous importance' and showed 'genuine remorse' (ts 80). Her Honour said that she would discount the sentences she would otherwise have imposed on account of the respondent having been a young man when he committed the charged offences. Her Honour referred to other mitigating factors she had taken into account, namely the fact that the respondent had been held in protective custody and the fact that he had been in protective custody 'during a time [when] our prison system [was] quite crowded and COVID [had] been going on' (ts 81). Her Honour said that the respondent's mental health issues related largely to the consequences of his offending and her Honour therefore was of the view that those issues were not of particular significance for sentencing purposes.
The primary judge said, in relation to count 1, that 'but for the plea of guilty and but for [the respondent's] youth', her Honour would have sentenced the respondent to 4 years 6 months' immediate imprisonment. However, her Honour reduced that sentence to 3 years 2 months' immediate imprisonment in recognition of those mitigating factors. Her Honour imposed a sentence of 12 months' immediate imprisonment for count 2. Her Honour ordered that the sentence for count 2 be served concurrently with the sentence for count 1. The total effective sentence was therefore 3 years 2 months' immediate imprisonment. Her Honour backdated the total effective sentence to 6 January 2022 to take account of time the respondent had spent in custody solely in relation to the charged offences. Her Honour made a parole eligibility order. Her Honour also made a violence restraining order in favour of Mr Wynne. Her Honour disqualified the respondent from holding or obtaining a motor driver's licence for 2 years 6 months.
The primary judge's lengthy discourse with the respondent in the middle of her sentencing remarks
The primary judge initiated and pursued a lengthy discourse with the respondent in the middle of her sentencing remarks. See [70] above.
At the sentencing hearing the respondent was represented by defence counsel. During the sentencing hearing, defence counsel, acting on instructions from the respondent, made submissions to her Honour in relation to sentencing. Her Honour asked questions of defence counsel and debated the issues with counsel in an orthodox fashion.
It was inappropriate for the primary judge to have engaged in the lengthy discourse with the respondent in the middle of her sentencing remarks. If, at that stage, her Honour required further information for the purpose of sentencing the respondent, despite the comprehensive submissions that had been made by the prosecutor and defence counsel and despite the conventional interaction that had occurred between her Honour on the one hand, and the prosecutor and defence counsel, on the other, her Honour should have sought that information from the prosecutor or defence counsel. There was a risk that the answers given by the respondent to her Honour's questions may have been adverse to the respondent's interests. Her Honour may have elicited information which, as a matter of procedural fairness, may have required further submissions from the prosecutor or defence counsel. That eventuality would have been highly undesirable given that her Honour was in the middle of her sentencing remarks.
Counsel for the respondent's submissions on the grounds of appeal
As to grounds 1 and 2, counsel for the respondent submitted in essence that the primary judge's findings of fact properly justified her Honour's 'merciful' sentencing disposition. Counsel emphasised that the respondent did not intend to hurt anyone and that the grave injuries which Mr Wynne received were the result of 'an unintended impact between the vehicle and [Mr Wynne]'. Counsel argued that there was some analogy between the facts and circumstances of the present case and those in Trompler v The State of Western Australia.[1] Counsel asserted that, in the present case, the sentence for count 1 and the total effective sentence were not unreasonable or plainly unjust.
[1] Trompler v The State of Western Australia [2008] WASCA 265.
As to ground 3, counsel submitted that the primary judge, in stating that the respondent's offending conduct was substantially mitigated by the respondent having refrained from any involvement in the fighting, was merely observing that those circumstances diminished the overall seriousness of the respondent's offending conduct. Counsel accepted, however, that 'calling [those circumstances] mitigating [was] clearly erroneous' (appeal ts 36).
The organisation of the balance of these reasons
It is convenient first to consider ground 3, then ground 1 and finally ground 2.
The merits of ground 3
Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and any aggravating and mitigating factors.
By s 6(3) of the Sentencing Act, the mandate in s 6(1) does not prevent the reduction of a sentence because of any mitigating factors. Section 8(1) provides that mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
It is apparent from s 8(1) of the Sentencing Act that the statutory definition of a mitigating factor accommodates factors arising from:
(a)the facts and circumstances of the offence; and
(b)the personal circumstances and antecedents of the offender,
which, in the court's opinion, decrease the offender's culpability for the offence or decrease the extent to which the offender should be punished for the offence.
In the present case, the primary judge found that:
(a)the respondent 'actually refrained from any involvement at all' in the fighting between the two groups before he left the scene of the fighting and got into the Honda Civic vehicle (ts 75); and
(b)the respondent 'would have kept right out of' the fighting had he 'not panicked that [his] cousin was at risk of something very bad happening to him', the respondent 'having already seen him assaulted' (ts 75).
Her Honour then concluded that those findings 'substantially mitigate[d] [the respondent's offending] conduct and [should] lead to a sentence lower than had those circumstances not existed' (ts 75). Her Honour did not merely observe that the findings she had made diminished the overall seriousness of the respondent's offending conduct. It is plain that her Honour regarded the findings in question as extenuating and substantially mitigatory, and consequently that there should be a discount on the sentences to be imposed.
The correctness of the primary judge's conclusion that her findings set out at [88] above 'substantially mitigate[d] [the respondent's offending] conduct' must be evaluated having regard to other findings made by her Honour.
Relevantly, her Honour found:
(a)by the time the respondent got into the Honda Civic vehicle and drove to Stirling Terrace, the respondent was 'aware that [people in his group] were mad and angry and, given that these people were known to [him], … it must have been at least on [the respondent's] mind … that some kind of physical fight was going to break out' (ts 73);
(b)it cannot have been 'lost to [the respondent] that that was the likely consequence of driving [his group of people] there' (ts 73);
(c)the respondent 'drove them, knowing there was going to be some kind of fight' (ts 73); and
(d)it was not to the respondent's credit that he went to Stirling Terrace 'in the first place knowing they were going to fight' (ts 74).
In our opinion, when the primary judge's findings set out at [88] above are evaluated having regard to her Honour's findings set out at [91] above, it is apparent that the findings set out at [88] above did not mitigate (let alone substantially mitigate) the respondent's offending conduct in unlawfully doing grievous bodily harm to Mr Wynne by driving the Honda Civic vehicle at Mr Wynne's group and, while straightening the vehicle, colliding with Mr Wynne.
The fact that:
(a)the respondent did not participate physically in the fighting; and
(b)the respondent's offending conduct was precipitated by his concern about the safety of his cousin,
did not decrease the respondent's culpability for his offending conduct or decrease the extent to which he should be punished for the offence because, as her Honour found, the respondent drove his group to Stirling Terrace in the knowledge that 'some kind of physical fight was going to break out' between the two groups; it cannot have been 'lost to [the respondent] that that was the likely consequence of driving [his group of people] there'; the respondent 'drove them, knowing there was going to be some kind of fight'; and the respondent went to Stirling Terrace knowing the members of his group 'were going to fight'.
If the respondent had participated physically in the fighting, that would have aggravated his offending conduct. If the respondent had attempted by lawful means to intervene for the purpose of stopping the fighting, that may have mitigated his offending conduct. However, having regard to all relevant findings made by her Honour, the findings set out at [88] above were not extenuating and did not mitigate the respondent's offending conduct. It was not reasonably open to her Honour to conclude that the findings set out at [88] above 'substantially mitigate[d] [the respondent's offending] conduct' and consequently should result in the imposition of a lesser sentence.
Ground 3 has been made out.
The merits of ground 1
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
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;[2] The State of Western Australia v Doyle;[3] McAlpine v The State of Western Australia.[4]
[2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[3] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[4] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[5]
[5] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
The maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in circumstances of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.
We have considered numerous cases of offending against s 297(1) including Trompler; Mercanti v The State of Western Australia;[6] The State of Western Australia v Taylor;[7] Peake v The State of Western Australia;[8] Winmar v The State of Western Australia;[9] Kere Kere v The State of Western Australia;[10] Bowe v The State of Western Australia;[11] Allen v The State of Western Australia;[12] The State of Western Australia v Mackey;[13] Reynolds v The State of Western Australia;[14] Baker v The State of Western Australia;[15] Lee v The State of Western Australia;[16] The State of Western Australia v Saleh;[17] Hornell v The State of Western Australia;[18] The State of Western Australia v Babakarkhil;[19] and Littlely v The State of Western Australia.[20] It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
[6] Mercanti v The State of Western Australia [2009] WASCA 109.
[7] The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308.
[8] Peake v The State of Western Australia [2015] WASCA 239.
[9] Winmar v The State of Western Australia [2016] WASCA 62.
[10] Kere Kere v The State of Western Australia [2016] WASCA 189.
[11] Bowe v The State of Western Australia [2017] WASCA 166.
[12] Allen v The State of Western Australia [2017] WASCA 203.
[13] The State of Western Australia v Mackey [2017] WASCA 204.
[14] Reynolds v The State of Western Australia [2017] WASCA 214.
[15] Baker v The State of Western Australia [2018] WASCA 15.
[16] Lee v The State of Western Australia [2018] WASCA 156.
[17] The State of Western Australia v Saleh [2020] WASCA 205.
[18] Hornell v The State of Western Australia [2021] WASCA 137.
[19] The State of Western Australia v Babakarkhil [2022] WASCA 59.
[20] Littlely v The State of Western Australia [2022] WASCA 102.
In Taylor [35] ‑ [39], Buss JA made these remarks (McLure P and Mazza JA agreeing):
In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life-threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] ‑ [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
McLure JA made these comments in Trompler about the broad range of sentences (post‑transitional) for unlawfully doing grievous bodily harm:
'The sentences actually imposed for offences of this type have a post-transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].'
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler, Wheeler JA observed:
'I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre-transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post-transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].'
In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post-transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of WesternAustralia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].
The objective seriousness of the respondent's offending in relation to count 1 must be assessed having regard to all of the relevant facts and circumstances, including:
(a)The respondent's deliberate and aggressive use of the Honda Civic vehicle to frighten or deter members of Mr Wynne's group.
(b)The respondent's performance of the swerving manoeuvre at a speed of 56 to 61 km an hour.
(c)The respondent's performance of the swerving manoeuvre in a main street of the centre of Albany and in very close proximity to members of Mr Wynne's group.
(d)The vulnerability of Mr Wynne and other members of his group as pedestrians.
(e)The obvious risk that members of Mr Wynne's group might move suddenly and unpredictably for the purpose of evading the respondent's vehicle.
(f)The obvious risk of very significant harm or death if the respondent's vehicle struck a member of Mr Wynne's group.
(g)The shocking injuries suffered by Mr Wynne. He has no independence and no quality of life. He is unable to speak or eat. Mr Wynne is incontinent and confined to a wheelchair. He requires 24 hour care at a very high level as a result of his disabilities. The prospect of any improvement in his condition is minimal.
(h)The devastating impact of Mr Wynne's injuries on Mr Wynne and his family, including his mother (who acts as his primary carer) and his young son.
The respondent's offending was aggravated by his having been on parole for earlier offending when he committed the offence in question.
The respondent was aged 23 at the time of the offending and was 24 when sentenced. There was some mitigation in his relative youth.
As we have mentioned, the respondent had a significant prior criminal record. Although the fact that the respondent had a prior criminal record, and the fact that previous sentences imposed on him had not achieved the purposes for which they were imposed, did not aggravate the seriousness of the offending in question, they indicated that the respondent was not entitled to any leniency on the ground that he was ordinarily of good character. As we have mentioned, one of the respondent's previous offences of aggravated robbery involved the respondent stomping on a person's head. Personal and general deterrence, including the protection of vulnerable members of the public, were important sentencing factors.
The principal mitigating factor was the respondent's plea of guilty. There were other mitigating factors to which we have referred at [77] above.
Although the primary judge found that the respondent's pleas of guilty showed 'genuine remorse' (ts 80), the respondent's statements between 23 July 2021 and 10 August 2021, which we have set out at [49] (f) and (g) above, indicate that at that stage the respondent was not genuinely remorseful and had not fully accepted responsibility for his actions.
The offending in Trompler is not reasonably comparable to the offending in the present case. In Trompler, the offender slashed the complainant across the stomach with a Swiss army knife after the complainant had punched the offender twice in the chest and had then pushed or punched him a third time. The offender voluntarily participated in a video recorded interview with police and made full admissions as to the circumstances giving rise to the offence. He claimed to have acted in self defence. The offender pleaded guilty at a late stage. The offender was aged 46 at the time of the offending and had no prior criminal record. The sentencing judge said that his conduct was out of character. The offender had excellent antecedents. A majority of this court resentenced the offender to 16 months' immediate imprisonment. The objective seriousness of the respondent's offending in the present case is significantly more serious than the objective seriousness of the offending in Trompler.
As to counsel for the respondent's submission that the sentencing outcome in the present case involved a merciful disposition, it is well established that the exercise of mercy in a particular sentencing case must be justified by circumstances that remove the particular case from the ordinary run of cases, so that the circumstances are 'special' or 'exceptional'. See The State of Western Australia v Rayapen.[21] No circumstances that may properly be described as 'special' or 'exceptional' existed in the present case.
[21] The State of Western Australia v Rayapen [2023] WASCA 55 [204] (Quinlan CJ, Mazza & Hall JJA).
In our opinion, the sentence of 3 years 2 months' immediate imprisonment for count 1 was not commensurate with the seriousness of the offence.
We are satisfied, after considering the sentence in the context of:
(a)the maximum penalty for count 1;
(b)the facts and circumstances of the offending;
(c)the objective seriousness of the offending as set out at [106] above;
(d)the standards of sentencing customarily observed;
(e)the place which the respondent's offending occupies on the relevant scale of seriousness;
(f)the respondent having committed the offence while he was on parole;
(g)the respondent's personal circumstances and antecedents;
(h)all mitigating factors; and
(i)all other relevant sentencing factors and principles,
that the length of the sentence was unreasonable or plainly unjust.
The sentence for count 1 was not merely 'lenient' or 'at the lower end of the available range'. It was significantly less than the sentence that was open to the primary judge on a proper exercise of her discretion.
Ground 1 has been made out.
The merits of ground 2
It follows, from our conclusion that the sentence for count 1 was manifestly inadequate, that the total effective sentence of 3 years 2 months' immediate imprisonment infringed the first limb of the totality principle.
As to count 2, the standards of sentencing for the offence of failing to stop immediately after the occurrence of an incident and render assistance, contrary to s 54(1) read with s 54(3)(b) of the Road Traffic Act, if the incident occasioned grievous bodily harm, are apparent from this court's decisions in The State of Western Australia v Tittums;[22] Paulose v The State of Western Australia;[23] The State of Western Australia v Krakouer;[24] and Gilbert v The State of Western Australia.[25]
[22] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298.
[23] Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386.
[24] The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24.
[25] Gilbert v The State of Western Australia [2020] WASCA 148; (2020) 94 MVR 58.
The State does not challenge the sentence of 12 months' immediate imprisonment imposed by the primary judge for count 2.
As we have mentioned, her Honour ordered that the sentence for count 2 be served concurrently with the sentence for count 1. It was necessary, of course, in considering the application of the totality principle to take into account the actual time spent in custody by the respondent in respect of the three offences of aggravated robbery which he committed in 2019 (including the actual time he spent in custody in respect of those offences after his parole was cancelled). However, in our opinion, having regard to all relevant facts and circumstances and all relevant sentencing factors, properly marking the seriousness of the respondent's overall offending required that part of the sentence for count 2 be served cumulatively upon the sentence for count 1.
Ground 2 has been made out.
The outcome of the appeal and the resentencing of the respondent
Counsel for the respondent submitted that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. Counsel argued that the residual discretion should be exercised because the appeal was heard on 21 August 2023 and under the sentence imposed by the primary judge on 8 November 2022 the respondent became eligible for parole on 5 August 2023. As we have mentioned, her Honour backdated the sentences she imposed to 6 January 2022 to take account of time the respondent had spent in custody solely in relation to the offences in question.
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).[26]
[26] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
By letter dated 24 August 2023, counsel for the State and counsel for the respondent informed the court that:
(a)On 5 August 2023, the respondent became eligible for parole, but he has not been released on parole.
(b)On 3 July 2023, the Prisoners Review Board adjourned the question of the possible release of the respondent on parole to enable the respondent to participate in a 'Medium Intensity Program' and to await receipt of the completion of a report. The successful completion of the Medium Intensity Program does not necessarily mean that the respondent will be released on parole.
(c)The respondent is not serving any other term of imprisonment, nor is he remanded in custody for any other reason (for example, pending charges).
(d)The respondent has not been denied parole as a result of the State's appeal against sentence or because the State's appeal has not yet been determined.
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have mentioned, the impugned sentences imposed by the primary 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 that proper sentencing standards are adopted and maintained for the relevant offences. The State has negated the reason put forward by counsel for the respondent in support of his submission that this court should exercise the residual discretion.
We would allow the appeal.
Her Honour's sentencing decision, including the sentences imposed and the orders made by her Honour apart from the violence restraining order, should be set aside.
This court has the material necessary to resentence the respondent.
Like the primary judge, we would allow a discount of 20%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence in the indictment, on account of the plea of guilty. We have also reduced each sentence we would otherwise have imposed for each offence to reflect the other mitigating factors.
We would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment in respect of the counts in the indictment as follows:
(a)count 1: 4 years 8 months; and
(b)count 2: 4 months (reduced from 12 months in the application of the totality principle).
We would order that the new sentence for count 2 be served cumulatively upon the new sentence for count 1. The new total effective sentence is therefore 5 years' immediate imprisonment. The new total effective sentence is to be taken to have taken effect on 6 January 2022. The respondent is eligible for parole.
The motor driver's licence disqualification of 2 years 6 months imposed by her Honour stands.
Conclusion
For these reasons the court made the orders set out at [9] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YK
Associate to the Honourable President Buss
6 DECEMBER 2023
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