The State of Western Australia v McDonagh - [2022] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MCDONAGH [2022] WASCA 108
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   1 APRIL 2022
DELIVERED          :   22 AUGUST 2022
FILE NO/S:   CACR 8 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

MICHAEL KENNETH MCDONAGH
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   IND 706 of 2020

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of aggravated home burglary and aggravated armed robbery - Respondent remanded in custody in respect of these offences for 503 days before sentencing - Conditional suspended imprisonment imposed by the sentencing judge for each offence - Whether the sentencing judge made an express error in affording the respondent a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) on the head sentence for each offence - Whether the sentencing judge made an express error in finding that the respondent had provided cooperation to law enforcement authorities - Manifest inadequacy

Legislation:

Criminal Code (WA), s 392, s 401(2)(a)
Sentencing Act 1995 (WA), s 9AA

Result:

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

Category: D

Representation:

Counsel:

Appellant	:	Mr L M Fox SC & Mr S D Packham
Respondent	:	Mr G J Allen

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Graeme Allen Barristers & Solicitors

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

Beynon v The State of Western Australia [2021] WASCA 153
Brindley v The State of Western Australia [2019] WASCA 153
Brooks v The State of Western Australia [2021] WASCA 156
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Eldridge v The State of Western Australia [2020] WASCA 66
Fernie v The State of Western Australia [2022] WASCA 20
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Herz v The State of Western Australia [2022] WASCA 73
Hiemstra v The State of Western Australia [2021] WASCA 96
Houlahan v The State of Western Australia [2022] WASCA 85
Jabbie v The State of Western Australia [2022] WASCA 10
Panicciari v The State of Western Australia [2020] WASCA 154
Robson v The State of Western Australia [2020] WASCA 153
Serukai v The State of Western Australia [2020] WASCA 159
The State of Western Australia v O'Driscoll [2022] WASCA 65
The State of Western Australia v Quartermaine [2021] WASCA 145
The State of Western Australia v Richards [2020] WASCA 129
The State of Western Australia v Wilkins [2020] WASCA 149

JUDGMENT 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 8 August 2019, at Halls Head, the respondent, Russell Frank Scanlin and Cody Phillip Lennard Barton, while in the place of Aaron Charles Hohaia without his consent, committed the offence of assault, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
The respondent's offending in respect of count 1 was aggravated by the following circumstances:
(a)the respondent was armed with an offensive instrument, namely a spanner;
(b)the respondent, Mr Scanlin and Mr Barton were in company with each other;
(c)the respondent, Mr Scanlin and Mr Barton did bodily harm to Mr Hohaia;
(d)immediately before the commission of the offence, the respondent, Mr Scanlin and Mr Barton knew or ought to have known that there was another person in the place; and
(e)the place was ordinarily used for human habitation.
Count 2 alleged that on the same date and at the same place as in count 1, the respondent, Mr Scanlin and Mr Barton stole from Mr Hohaia, with violence, a quantity of methylamphetamine, a black leather wallet and its contents, a gold necklace and a black Nike bumbag containing an Alcatel mobile telephone, the property of Mr Hohaia and Contessa Michelle‑Anne Gresty, contrary to s 392 of the Code.
The respondent's offending in respect of count 2 was aggravated by the following circumstances:
(a)the respondent was armed with an offensive instrument, namely a spanner;
(b)the respondent, Mr Scanlin and Mr Barton were in company with each other; and
(c)the respondent, Mr Scanlin and Mr Barton did bodily harm to Mr Hohaia.
The maximum penalty applicable to the respondent for count 1 is 20 years' imprisonment. The maximum penalty applicable to the respondent for count 2 is life imprisonment.
The respondent spent 503 days in custody before he was sentenced. He had also spent a period on home detention bail before he was sentenced. In particular:
(a)on 16 August 2019, the respondent was charged with the offences;
(b)between 16 August 2019 and 14 January 2020, the respondent was remanded in custody;
(c)on 14 January 2020, the respondent was granted home detention bail;
(d)on 26 May 2020, the respondent's home detention bail was revoked;
(e)between 26 May 2020 and 12 May 2021, the respondent was remanded in custody; and
(f)between 13 May 2021 and 1 February 2022 (when he was sentenced), the respondent was on home detention bail.
On 1 February 2022, Wallace DCJ sentenced the respondent to 3 years' imprisonment for count 1 and 3 years' imprisonment for count 2. Her Honour ordered that the individual sentences be served concurrently. The respondent's total effective sentence was therefore 3 years' imprisonment. Her Honour ordered that the sentences be conditionally suspended for 18 months. The sentences began on the date they were imposed; that is, on 1 February 2022.

The State relies upon four grounds of appeal.
Ground 1 alleges, in essence, that the sentencing judge erred by affording the respondent a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).
Ground 2 alleges, in essence, that her Honour erred in finding that the respondent provided cooperation to law enforcement authorities.
Ground 3 alleges, in essence, that the respondent's sentence for count 1 was manifestly inadequate as to type.
Ground 4 alleges, in essence, that the respondent's sentence for count 2 was manifestly inadequate as to both type and length.
On 21 February 2022, Buss P granted leave to appeal on each of the grounds of appeal.
We would allow the appeal. The sentencing judge's sentencing decision should be set aside and the respondent resentenced by this court.

The facts and circumstances of the offending

On 8 August 2019, at about 3.50 am, the respondent, Mr Scanlin, Mr Barton, Cloey Sandra Moffitt and Mark Scott Miller travelled to a home unit at Halls Head in two vehicles. The unit was occupied by Mr Hohaia and Ms Gresty. Ms Moffitt had been to the unit earlier that morning. She had consumed drugs with Mr Hohaia and Ms Gresty. Upon arriving at a carpark near the unit, the respondent armed himself with a 40 cm long open‑ended spanner. He hid the spanner up his sleeve.
The offenders arrived at the front door of the home unit. Ms Moffitt called out to Ms Gresty and told her that she had left some things behind when she had attended earlier. Ms Gresty then partially opened the front door. As she did this, one of the offenders - it is not clear who - pulled Ms Gresty out of the doorway by her hair and removed her from the unit. Ms Gresty was wearing only a towel. She ran and hid between some cars in a nearby carpark. All of the offenders then entered the unit. The respondent and Mr Barton ran in the direction of Mr Hohaia. Mr Hohaia retreated to a bedroom and tried unsuccessfully to escape through a window. He then shut the bedroom door and barricaded it. From outside the door, the respondent said to Mr Hohaia words to the effect of, 'I'm going to kill you, you cunt, you owe us money'.
The respondent kicked the bedroom door multiple times and struck it with the spanner, causing extensive damage and a large hole in the door. Mr Hohaia tried to keep the bedroom door closed. The respondent struck Mr Hohaia on the left tricep with the spanner through the large hole in the door that he had created. The respondent and Mr Barton then forced the door open and ran into the bedroom. At least three of the male offenders - it appears that this was the respondent, Mr Barton and Mr Scanlin - surrounded Mr Hohaia and demanded property and money from him. The respondent struck Mr Hohaia several times to his head and body with the spanner. In particular, he struck Mr Hohaia on the right side of his forehead, as well as on his right shoulder, right forearm and right wrist. One of the offenders grabbed a wallet containing several cards, $470 cash, a gold necklace, a bumbag and a black Alcatel mobile telephone. After taking the items, the offenders left the unit together.
Ms Gresty suffered soreness to her back and neck. Mr Hohaia suffered a significant tear to a muscle in his right forearm, a cut to the right‑hand side of his head, and bruising. He provided a victim impact statement setting out that he required nine stitches and now has a permanent indentation on his arm. Mr Hohaia said, of the injury, 'it hurt and I will have it forever'. The offending also had profound psychological impacts, causing him nightmares, hypersensitivity, insomnia and social isolation.
Ms Moffitt and Mr Miller were charged separately from the respondent, Mr Scanlin and Mr Barton.

The sentencing judge's sentencing remarks

The sentencing judge recounted the facts and circumstances of the offending in her sentencing remarks.
Her Honour referred in detail to the respondent's personal circumstances and antecedents.
The respondent was aged 35 years at the time of the offending and was 37 when sentenced.
The respondent had a dysfunctional and deprived upbringing. When the respondent was a child his father was violent towards him. The respondent's parents separated when he was an infant. The respondent lived with his mother and had very limited contact with his father. The respondent felt neglected, rejected and abandoned by his father. When the respondent was aged about 12 months his mother formed a relationship with the respondent's first step‑father. This man was verbally, emotionally, physically and sexually abusive towards the respondent. The respondent's mother ended that relationship when the respondent was aged about 5 years. When the respondent was aged about 6 his mother formed another relationship which lasted for about seven years. That man was charged, convicted and imprisoned for sexually abusing the respondent's eldest half‑sister. Later, as a teenager, the respondent lived with his father for two years. He then returned to live with his mother for a few months. He then alternated between the homes of his parents until he was aged about 19. Next, the respondent lived with his first partner until the age of about 21. That relationship ended because the partner formed a relationship with the respondent's father. The respondent felt betrayed, distressed and angry.
The respondent was bullied at school. He formed friendships outside of school with antisocial peers and began using cannabis and alcohol. The respondent was expelled from school in year 9.
However, the respondent completed year 10 at TAFE. He has also completed a number of courses, including in relation to the operation of a forklift and an excavator and also in relation to personal training, cleaning and biohazard work. The respondent has been employed in various roles including labouring, painting, bricklaying, brick paving and as a removalist. He has had a number of periods of unemployment.
The respondent has had three significant relationships. He has a son from one of those relationships. His current partner remains very supportive of him. At the time of sentencing the respondent was living with his mother pursuant to the conditions of his home detention bail.
The respondent has a history of using prohibited drugs. At the time of the offending in question he was under the influence of alcohol, cannabis and methylamphetamine.
The respondent was diagnosed with attention deficit hyperactivity disorder when he was in primary school. At the age of 13 he was medicated for that disorder. He was also diagnosed with depression when he was aged 13 and prescribed antidepressant medication. When he was in custody in his 20s the respondent was diagnosed with depression, anxiety and post‑traumatic stress disorder. As an adult, the respondent has taken antidepressant and mood stabilising medications intermittently both in and out of custody. He has also participated in psychological counselling intermittently.
The information before the sentencing judge included a pre‑sentence report dated 19 October 2021, a psychiatric report dated 23 August 2021 from Dr Marshall Watson, a child and adolescent and adult forensic psychiatrist, a psychological report dated 27 September 2021 from Ms Tanina Oliveri, a clinical and forensic psychologist, and the victim impact statement from Mr Hohaia.
Ms Oliveri said in her report that the offending in question was indicative of the respondent's long‑term problems with violence, substance misuse, association with antisocial people, poor judgment, an antisocial lifestyle and a lack of consequential thinking. There was evidence that the respondent had antisocial and narcissistic personality patterns; poor treatment and supervision responsivity; a propensity for violence; and attitudes which support and condone the use of violence. The respondent has experienced problems with emotional regulation, anger, coping, impulse control, decision‑making and consequential thinking. Ms Oliveri assessed the respondent to be at a high risk of future violence.
Dr Watson said in his report that the respondent has a history of significant developmental childhood adversity. The respondent has suffered from emotional and behavioural dysregulation. Dr Watson diagnosed that the respondent has antisocial personality disorder. He also has a history of substance misuse disorder that is currently in remission. The respondent has an entrenched pattern of offending with offences of an interpersonal nature relating to violence. Dr Watson was of the view that the offending in question occurred in the context of the respondent's antisocial personality style and the effects of significant substance use.
The author of the pre‑sentence report noted that on 13 May 2021 the respondent had been granted home detention bail. The respondent had actively and consistently applied self‑motivation while on bail and had endeavoured to address issues that had contributed to his offending. According to the author, the respondent had displayed an awareness that if he reverted to illicit drug use or disconnected from his current prosocial supports or engaged in negative associations, there was a real risk that his propensity to violence would be triggered. The author expressed the view that, as a result of the respondent's significant improvements in his behaviour and attitudes while he was on home detention bail, the respondent was suitable for a community‑based order.
Her Honour noted that while the respondent had been on home detention bail, he had participated in an anger management course, substance use counselling, private psychological counselling and regular church attendance. He has undertaken volunteer work for his church and has been employed on a part‑time basis. His employer described the respondent as a hard worker who did not present with any problems. There was a prospect that the part‑time employment could progress to full‑time employment. The authors of a number of written references spoke well of the respondent.
Her Honour also noted that the respondent had complied with all of the conditions and directions in respect of his home detention bail. Urinalysis tests have been negative, apart from the first test which was void as a result of low creatinine levels.
The respondent has a significant prior criminal record. He has previous convictions for unlawfully doing grievous bodily harm (multiple offences); assaulting a public officer (multiple offences); assault occasioning bodily harm in circumstances of aggravation; assault occasioning bodily harm (multiple offences); doing an unlawful act with intent to harm; common assault in circumstances of aggravation or racial aggravation; common assault; breach of a violence restraining order; breach of a suspended imprisonment order (multiple offences); obstructing public officers; breach of a community‑based order (multiple offences); possessing a prohibited drug or drug paraphernalia (multiple offences); traffic offences including reckless driving (multiple offences); and breach of bail.
Her Honour found that the respondent's offending was mitigated by a number of matters. The principal matters of mitigation were the respondent's pleas of guilty; his genuine remorse; his insight and acceptance of responsibility; 'the cooperation [the respondent] gave to law enforcement'; the significant steps he had taken towards rehabilitation; and the respondent's deprived and dysfunctional childhood (ts 127). Other matters of mitigation were the respondent having abstained from alcohol and illicit substances before the sentencing hearing; his having engaged with potential employers; his having a young autistic son; and the respondent's mental health issues (although there was no finding that those issues were causally related to the offending) (ts 120 ‑ 122, 124, 125, 127, 132, 133).
As to the respondent's pleas of guilty, her Honour said:
[Y]our pleas of guilty of course [warrant] a reduction in the sentence that would have otherwise been imposed by the court and I intend to give you the full discount available of 25 per cent for those pleas of guilty (ts 117).
As to 'the cooperation [the respondent] gave to law enforcement', her Honour said that 'in a video record of interview with police' the respondent 'denied any involvement, but of course now you acknowledge and accept the offending' (ts 116). As we have mentioned, her Honour found that 'the cooperation [the respondent] gave to law enforcement' was mitigating (ts 127). Later, her Honour reiterated that the respondent had 'assisted law enforcement' (ts 132).
Her Honour noted that the respondent had spent 503 days in custody before being sentenced and had spent a period on home detention bail. See the details set out at [8] above.
Her Honour sentenced the respondent to 3 years' imprisonment for count 1 and 3 years' imprisonment for count 2. Her Honour ordered that the individual sentences be served concurrently. The total effective sentence was therefore 3 years' imprisonment (ts 129 ‑ 130). Her Honour decided to conditionally suspend the sentences for 18 months because of the 'significant matters' in mitigation, the 503 days the respondent had spent in custody before he was sentenced and the 'onerous conditions and restrictions' of the respondent's home detention bail (ts 129, 131).

Counsel for the State's submissions

As to ground 1, counsel for the State informed the court that no negotiations occurred between the State and the respondent in relation to his pleas of guilty or the material facts of the offending. Defence counsel did not indicate the respondent's intention to plead guilty until 1 June 2021, about 21 months after the respondent was first charged and two months and 19 days before the trial was to begin. The indication of the respondent's intention to plead guilty followed the filing and service of the prosecution brief, including signed statements from Ms Moffitt and Mr Scanlin. At the respondent's sentencing hearing, neither the prosecutor nor defence counsel submitted that the respondent's pleas had been indicated at the first reasonable opportunity. Indeed, defence counsel acknowledged that the pleas were not entered at an early opportunity. Nevertheless, the sentencing judge concluded, in her sentencing remarks, that:
[The respondent's] pleas of guilty of course [warrant] a reduction in the sentence that would have otherwise been imposed by the court and I intend to give you the full discount available of 25 per cent for those pleas of guilty (ts 117).

As to ground 2, counsel for the State informed the court that each of the offenders, apart from the respondent, assisted law enforcement to varying degrees by making material admissions. The most significant assistance was given by Ms Moffitt and, to a lesser extent, by Mr Scanlin. The facts, as read by the prosecutor at the respondent's sentencing hearing, set out that the respondent, unlike his co‑offenders, denied any involvement in the offending (ts 103). Defence counsel admitted those facts (ts 103). Similarly, the sentencing judge found in her sentencing remarks that the respondent had 'denied any involvement, but of course now … acknowledge[s] and accept[s] the offending' (ts 116). Defence counsel did not submit either in written or in oral submissions that the respondent had made any admissions or had cooperated with law enforcement authorities. The respondent, consistently with the stance adopted by defence counsel at the sentencing hearing, denied repeatedly in his electronic record of interview with police having had any involvement in the offending.
Counsel for the State reiterated that the respondent's intention to plead guilty was not indicated until about 21 months after the respondent was first charged and noted that during the intervening period the respondent provided police with no assistance.
Counsel for the State submitted that, nevertheless, the sentencing judge found that the seriousness of the respondent's offending was mitigated by 'the cooperation [the respondent] gave to law enforcement' (ts 127). It was also submitted that later in her sentencing remarks her Honour said that the respondent had 'assisted law enforcement' (ts 132).
As to ground 3, counsel for the State submitted that the sentence imposed by the sentencing judge for count 1 (that is, the aggravated home burglary) was manifestly inadequate as to type.
As to ground 4, counsel for the State submitted that the sentence imposed by the sentencing judge for count 2 (that is, the aggravated armed robbery) was manifestly inadequate as to both type and length.

Counsel for the respondent's submissions

Counsel for the respondent conceded, at the hearing of the appeal, that ground 1 and ground 2 had been made out (appeal ts 10 ‑ 11).
As to ground 3, counsel noted that the State made no complaint about the length of the sentence of 3 years' imprisonment for the aggravated home burglary charged in count 1. It was submitted that whether the sentence for count 1 should have been suspended or conditionally suspended was connected with whether the sentence for the aggravated armed robbery charged in count 2 should have been suspended or conditionally suspended (appeal ts 11).
As to ground 4, counsel conceded that the sentence for the aggravated armed robbery charged in count 2 was manifestly inadequate as to type (but not length) (appeal ts 11 ‑ 12).
Counsel informed the court that, in relation to resentencing, the respondent had nothing to add to the information that was put before the sentencing judge. However, counsel mentioned that the respondent continues to attend church and to look for work. The respondent and his partner care for his partner's children (appeal ts 13).
Counsel submitted that the concessions the respondent had made in relation to the grounds of appeal reflect some acceptance of responsibility for the offending. Counsel noted that the sentencing judge found that the respondent had accepted responsibility for his criminal behaviour.

The merits of the appeal

Counsel for the respondent's concession in relation to ground 1 was properly made and should be accepted. Section 9AA(4) of the Sentencing Act provides, in effect, that a court must not reduce the 'head sentence' (as defined in s 9AA(1)) for an offence (in recognition of the benefits to the State and to any victim of or witness to an offence resulting from a plea of guilty) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity. In the present case, there is no doubt that the respondent did not plead guilty, or indicate that he would plead guilty, at the first reasonable opportunity. Indeed, defence counsel did not indicate the respondent's intention to plead guilty until about 21 months after the respondent was first charged and two months and 19 days before the trial was to begin. The sentencing judge's decision to allow a discount of 25% for each plea of guilty infringed s 9AA(4).
Counsel for the respondent's concession in relation to ground 2 was properly made and should be accepted. An offender's cooperation with law enforcement authorities is a mitigating factor. In the present case, the respondent did not relevantly cooperate with the law enforcement authorities. Defence counsel did not submit at the sentencing hearing that the respondent had made any admissions or had cooperated with law enforcement authorities. The sentencing judge's findings to the effect that the respondent's offending was mitigated by the cooperation he gave to law enforcement and by assistance he had given to law enforcement were erroneous.
Ground 3 alleges that the sentence of 3 years' imprisonment, conditionally suspended for 18 months, was manifestly inadequate as to type.
The respondent's offending on count 1 and count 2 was egregious. The offending involved some planning and premeditation. The respondent acted in company. The circumstances of the commission of the offence would have been frightening to the victims. The respondent seriously assaulted Mr Hohaia with the spanner. The victims' home was damaged. Property was stolen. The respondent was not youthful for sentencing purposes. Although his serious prior criminal record did not aggravate the current offending, his prior convictions for violence underscored the importance of personal deterrence as a sentencing factor. The respondent's pleas of guilty were mitigating, but were indicated and entered at a late stage of the proceedings. The respondent's efforts towards rehabilitation since his arrest for the offences in question are commendable and mitigating. He also had the advantage of other mitigation. However, the respondent is at a high risk of future violent offending unless he continues to address the problems referred to by Ms Oliveri in her report. General deterrence, as well as personal deterrence, had to be given significant weight in the sentencing decision.
The maximum penalty for aggravated home burglary, contrary to s 401(2)(a) of the Code, is 20 years' imprisonment.
In Brindley v The State of Western Australia,[1] it was observed:
The circumstances of burglary offences can vary widely and attract a wide range of sentences. Home burglaries are viewed as being particularly serious offences, and are generally seen as requiring substantial penalties in order to recognise considerations of personal and general deterrence, and reflect the prevalence of the offence. Home invasions, which involve forcible entry into residential premises known or suspected to be occupied at the time, accompanied by threatened or actual violence, are generally significantly more serious than home burglaries which lack those characteristics. A home invasion which is committed with intent to intimidate the occupants is generally more serious than a burglary which involves simply an intention to steal (Wragg v The State of Western Australia [2013] WASCA 198; (2013) 234 A Crim R 380 [44]; Sartori v The State of Western Australia [2014] WASCA 98 [31]; McIntyre v The State of Western Australia [2016] WASCA 150 [15]; Page v The State of Western Australia [2018] WASCA 76 [40]).
[1] Brindley v The State of Western Australia [2019] WASCA 153 [39].
In Eldridge v The State of Western Australia,[2] this court said:
The cases illustrate that there is no tariff for home burglary, whether aggravated or non‑aggravated. This is hardly surprising given the vast variation of circumstances in which offences of home burglary are committed and the personal circumstances of those who commit them.
What is clear is that home burglaries are serious offences which are prevalent and which are ordinarily met with terms of imprisonment. There has long been a recognition that sentences for home burglary need to be firmed up. Whether this has in fact happened is debatable.
[2] Eldridge v The State of Western Australia [2020] WASCA 66 [63] ‑ [64].
Subsequently, the necessity for a firming up of sentences for aggravated home burglary offences has been emphasised in The State of Western Australia v Richards;[3] The State of Western Australia v Wilkins;[4] Robson v The State of Western Australia;[5] Panicciari v The State of Western Australia;[6] and Serukai v The State of Western Australia.[7] See also, as regards the sentencing pattern for offences of aggravated home burglary, the more recent decisions of this court in The State of Western Australia v Quartermaine;[8] Beynon v The State of Western Australia;[9] Brooks v The State of Western Australia;[10] Jabbie v The State of Western Australia;[11] Fernie v The State of Western Australia;[12] Herz v The State of Western Australia;[13] and Houlahan v The State of Western Australia.[14]
[3] The State of Western Australia v Richards [2020] WASCA 129 [28] ‑ [29].
[4] The State of Western Australia v Wilkins [2020] WASCA 149 [67], [76].
[5] Robson v The State of Western Australia [2020] WASCA 153 [20] ‑ [22].
[6] Panicciari v The State of Western Australia [2020] WASCA 154 [42] ‑ [44].
[7] Serukai v The State of Western Australia [2020] WASCA 159 [44].
[8] The State of Western Australia v Quartermaine [2021] WASCA 145.
[9] Beynon v The State of Western Australia [2021] WASCA 153.
[10] Brooks v The State of Western Australia [2021] WASCA 156.
[11] Jabbie v The State of Western Australia [2022] WASCA 10.
[12] Fernie v The State of Western Australia [2022] WASCA 20.
[13] Herz v The State of Western Australia [2022] WASCA 73.
[14] Houlahan v The State of Western Australia [2022] WASCA 85.
In Wilkins [70], this court made the following comments:
The seriousness of the respondent's offending was to be evaluated having regard to his criminal acts and the circumstances in which he did those acts, and not by reference to whether the label of a 'home invasion' should or should not be applied to his offending behaviour. The seriousness of what the respondent did was to be found in his actions in entering a home occupied by other people without their consent; attempting to steal their motor vehicle by demanding their car keys; and swinging a tomahawk at the victim when the victim resisted. The fact that the victim, with the assistance of his son, was able to overpower the respondent does not detract from the seriousness of the offending.
In Serukai [46], it was noted that, in considering the appropriate sentence for an aggravated home burglary offence, it is important to bear in mind the wide variety of conduct that may constitute the offence. Also, the classification of conduct referred to in Brindley (see the passage set out at [59] above) is general in nature and must, in a particular case, give way to an assessment of what the offender has actually done.
In the present case, after evaluating the sentence of 3 years' imprisonment, conditionally suspended for 18 months, imposed by her Honour for count 1 (that is, the aggravated home burglary), in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)the standards of sentencing customarily observed;
(d)the place which the respondent's offending occupies on the relevant scale of seriousness;
(e)the importance of personal and general deterrence;
(f)the respondent's personal circumstances and antecedents; and
(g)all mitigating factors,
we are satisfied that it was not reasonably open to the sentencing judge to fail to be satisfied that it was inappropriate to suspend or conditionally suspend (wholly or partly) the sentence of imprisonment. Her Honour should have been positively satisfied that it was inappropriate to suspend or conditionally suspend (wholly or partly) the term of imprisonment. The type of sentence imposed was unreasonable or plainly unjust.
Further:
(a)s 76(3)(b) of the Sentencing Act provides that suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended; and
(b)s 81(3)(b) of the Sentencing Act provides that conditionally suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended.
In the present case, as we will explain, the sentence of 3 years' imprisonment, conditionally suspended for 18 months, imposed by her Honour for count 2 (that is, the aggravated armed robbery) was manifestly inadequate as to type. Accordingly, in any event, suspended or conditionally suspended imprisonment was not an available option for count 1.
Ground 3 has been made out.
The maximum penalty for aggravated armed robbery, contrary to s 392 of the Code, is life imprisonment.
It is apparent from the case law that where an offender is convicted after trial of a single count of armed robbery, contrary to s 392 of the Code, a sentence of 5 to 6 years' imprisonment (before having regard to any aggravating or mitigating factors) is not unusual. However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders, in the context of the offence of armed robbery, vary widely. Sentences significantly beyond the range we have mentioned may, having regard to the maximum penalty and the relevant facts and circumstances (including any aggravating and mitigating factors), be appropriate in particular cases. See Hiemstra v The State of Western Australia;[15] Jabbie; and The State of Western Australia v O'Driscoll.[16]
[15] Hiemstra v The State of Western Australia [2021] WASCA 96.
[16] The State of Western Australia v O'Driscoll [2022] WASCA 65.
In the present case, after evaluating the sentence of 3 years' imprisonment, conditionally suspended for 18 months, imposed by her Honour for count 2 (that is, the aggravated armed robbery), in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)the standards of sentencing customarily observed;
(d)the place which the respondent's offending occupies on the relevant scale of seriousness;
(e)the importance of personal and general deterrence;
(f)the respondent's personal circumstances and antecedents; and
(g)all mitigating factors,
we are of the opinion that the sentence was manifestly inadequate as to type.
In particular, as regards the type of sentence, we are satisfied that it was not reasonably open to the sentencing judge to fail to be satisfied that it was inappropriate to suspend or conditionally suspend (wholly or partly) the sentence of imprisonment. Her Honour should have been positively satisfied that it was inappropriate to suspend or conditionally suspend (wholly or partly) the term of imprisonment.
The type of sentence imposed for count 2 was unreasonable or plainly unjust.
Ground 4 has been made out in that respect.
It is unnecessary, in the circumstances, to decide whether the length of the sentence imposed for count 2 was manifestly inadequate because the other errors which have been established in relation to her Honour's sentencing decision require that the appeal be allowed, her Honour's sentencing decision be set aside and the sentencing discretion be exercised afresh.

The residual discretion

The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges. See Green v The Queen[17] and CMB v Attorney‑General (NSW).[18]
[17] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1].
[18] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55].
If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.
In the present case, counsel for the respondent disclaimed any reliance upon the residual discretion (appeal ts 14).
In our opinion, the intervention of this court in the appeal is necessary to maintain adequate standards of sentencing. The individual sentences for counts 1 and 2 and, consequently, the total effective sentence, were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. The public interest in the maintenance of appropriate sentencing standards for very serious offending of the kind charged in counts 1 and 2 requires that the appeal be allowed, the sentences imposed by the sentencing judge be set aside and the respondent resentenced.

The outcome of the appeal and the resentencing of the respondent

The appeal should be allowed.
The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent.
We have discounted each of the head sentences that we would otherwise have imposed by 10%, pursuant to s 9AA of the Sentencing Act, in recognition of the pleas of guilty.
We have also reduced each sentence that we would otherwise have imposed for each offence to reflect the mitigating factors referred to by her Honour (apart from her Honour's erroneous reference to the respondent's alleged cooperation with law enforcement authorities).
We have further reduced each sentence that we would otherwise have imposed for each offence to recognise the respondent's compliance with the conditionally suspended sentences imposed by the sentencing judge and to reflect the concessions made by counsel for the respondent on his behalf in relation to the grounds of appeal.
We have also had regard to the parity principle (including the similarities and differences between the offences with which the respondent and his co‑offenders were charged and convicted and the sentences they received and the similarity and differences between the personal circumstances and antecedents of the respondent and his co‑offenders).
We would exercise the sentencing discretion afresh as follows:
(a)count 1: 6 months' immediate imprisonment (reduced from 3 years' immediate imprisonment in the application of the totality principle and to avoid double punishment); and
(b)count 2: 5 years' immediate imprisonment.
As we have indicated, we have reduced the sentence we would otherwise have imposed for count 1 from 3 years' immediate imprisonment to 6 months' immediate imprisonment for the purposes of totality and to avoid punishing the respondent twice for common factual elements and common factual circumstances pertaining to count 1 and count 2. In particular, the respondent has been punished for his violence and his assault occasioning bodily harm in the resentencing for count 2, but not in the resentencing for count 1.
The new sentence for count 1 should be served cumulatively upon the new sentence for count 2. The new total effective sentence is therefore 5 years 6 months' immediate imprisonment. The respondent should be eligible for parole.

The new sentence for count 2 and the new total effective sentence should be backdated to 6 April 2021, to take into account the 503 days the respondent spent in custody in relation to this offending before the sentencing judge imposed sentence.
The respondent will be eligible to be considered for release on parole when he has served 3 years 6 months in custody calculated from 6 April 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
22 AUGUST 2022