The State of Western Australia v Popal
[2020] WASCA 200
•26 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- POPAL [2020] WASCA 200
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 14 AUGUST 2020
DELIVERED : 21 AUGUST 2020
PUBLISHED : 26 NOVEMBER 2020
FILE NO/S: CACR 176 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ABDUL FATHA POPAL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 1909 of 2018
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of 11 offences committed whilst in a drug‑induced psychotic state - Whether individual sentences manifestly inadequate - Whether first limb of totality principle infringed - Proper approach to totality - Whether judge erred in finding that the respondent was of prior good character and had a law-abiding past
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Road Traffic Act 1974 (WA), s 60(1A), s 60B(4), s 60B(5)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Respondent resentenced
Category: B
Representation:
Counsel:
| Appellant | : | A L Forrester SC |
| Respondent | : | S D Freitag SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Chambers Legal |
Case(s) referred to in decision(s):
Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100
Boase v Roberts [2018] WASC 45
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Francis v The State of Western Australia [2019] WASCA 43
Garlett v The State of Western Australia [2016] WASCA 80
Jackson v Mitchell [2019] WASC 372
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kaokula v The State of Western Australia [2016] WASCA 198
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
NI v The State of Western Australia [2020] WASCA 78
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Ryan v The Queen [2011] HCA 21; (2001) 206 CLR 267
The State of Western Australia v Darroch [2018] WASCA 114
The State of Western Australia v Nillson [2017] WASCA 68
The State of Western Australia v Richards [2020] WASCA 129
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476
The State of Western Australia v Wilson [2015] WASCA 119
Vander Waide v The State of Western Australia [2019] WASCA 148
Veen v The Queen [No 2] (1988) 164 CLR 465
REASONS OF THE COURT:
This is a State appeal against sentences imposed in the District Court by Gillan DCJ.
The respondent was charged on indictment in the District Court with 11 offences, all of which he committed in a drug‑induced psychotic state brought on by the voluntary consumption of methylamphetamine. Counts 1 ‑ 10 were committed over a period of approximately 30 minutes on 17 June 2017 and, in general terms, involved the respondent brandishing and discharging a 9 mm semi‑automatic handgun at a number of motor vehicles which were being driven in the suburb of Whiteman. Count 11 occurred at approximately 7.45 pm on 18 June 2017 and, again in general terms, involved the respondent deliberately driving his motor vehicle in a reckless manner in suburban streets to escape a police pursuit. On 8 July 2019, the respondent was convicted on his guilty pleas of all 11 offences. He was remanded for sentencing on 29 October 2019.
On 29 October 2019, the respondent was sentenced by Gillan DCJ. The details of the charges and the sentences that were imposed are set out below.
Charge Description Maximum penalty Sentence Count 1
On 17 June 2017, [the respondent], with intent to harm, did an act as a result of which the life, health or safety of [GF] was or was likely to be endangered - s 304(2) Criminal Code (WA) (Code) 20 years' imprisonment 3 years' imprisonment (concurrent) Count 2
On the same date, [the respondent] did criminal damage to another's property - s 444(1)(b) Code 10 years' imprisonment 12 months' imprisonment (concurrent) Count 3
On the same date, [the respondent] did an act as a result of which the life, health or safety of [DS] was or was likely to be endangered - s 304(1) Code 7 years' imprisonment 1 year 3 months' (cumulative) Count 4
On the same date, [the respondent] did criminal damage to another's property - s 444(1)(b) Code 10 years' imprisonment 12 months' imprisonment (concurrent)
Charge Description Maximum penalty Sentence Count 5
On the same date, [the respondent] did an act as a result of which the life, health or safety of [JM] was or was likely to be endangered - s 304(1) Code 7 years' imprisonment 2 years' imprisonment (concurrent) Count 6
On the same date, [the respondent] did an act as a result of which the life, health or safety of [LM] was or was likely to be endangered - s 304(1) Code 7 years' imprisonment 2 years' imprisonment (concurrent) Count 7
On the same date, [the respondent] did criminal damage to another's property - 444(1)(b) Code 10 years' imprisonment 2 years' imprisonment (concurrent) Count 8
On the same date, [the respondent], with intent to harm, did an act as a result of which the life, health or safety of [CB] was or was likely to be endangered - s 304(2) Code 20 years' imprisonment 3 years 6 months' imprisonment (head sentence) Count 9
On the same date, [the respondent] did criminal damage to another's property - s 444(1)(b) Code 10 years' imprisonment 12 months' imprisonment (concurrent) Count 10
On the same date, [the respondent] was armed with a firearm in circumstances that were likely to cause fear to any person - s 68(1) Code 7 years' imprisonment 12 months' imprisonment (concurrent) Count 11
On the same date, [the respondent] wilfully drove a motor vehicle in a reckless manner to escape pursuit by a police officer - s 60(1A)(b) Road Traffic Act 1974 (WA) 5 years' imprisonment 6 months' imprisonment (cumulative) Total effective sentence (TES): 5 years 3 months' imprisonment with eligibility for parole backdated to commence on 18 June 2017.
In addition to the sentences of imprisonment, her Honour ordered the destruction of the handgun, magazine and ammunition. Her Honour also disqualified the respondent from holding (1) a motor driver's licence for a period of 2 years, and (2) a firearms licence for a period of 10 years.[1]
[1] ts 66.
On 21 August 2020, this court unanimously allowed the appeal and made the following orders:
1.The appeal is allowed.
2. The sentences imposed by Gillan DCJ on 29 October 2019 are set aside.
3. The respondent is resentenced as follows:
(a)Count 1: 5 years' imprisonment
(b)Count 2: 12 months' imprisonment
(c)Count 3: 3 years' imprisonment
(d)Count 4: 12 months' imprisonment
(e)Count 5: 3 years' imprisonment
(f)Count 6: 3 years' imprisonment
(g)Count 7: 2 years' imprisonment
(h)Count 8: 6 years' imprisonment
(i)Count 9: 12 months' imprisonment
(j)Count 10: 18 months' imprisonment
(k)Count 11: 12 months' imprisonment
The sentences on counts 8, 10 and 11 are to be served cumulatively. All of the other terms of imprisonment are to be served concurrently with each other and concurrently with the sentence imposed on count 8.
Thus, the total effective sentence to be served by the respondent is 8 years 6 months' imprisonment. The total effective sentence is to be taken to have taken effect from 18 June 2017. The respondent is eligible for parole.
The respondent is disqualified from holding or obtaining a motor driver's licence for a period of 2 years.
The respondent is disqualified from holding or obtaining a firearms licence for a period of 10 years.
The court said that it would deliver its reasons for making the orders at a later date. These are our reasons. In summary, in our respectful opinion, the sentences on counts 1, 8 and 11 were manifestly inadequate and the total effective sentence infringed the first limb of the totality principle.
The grounds of appeal
The appellant advances six grounds of appeal. The effect of grounds 1, 2, 3 and 4 allege that the individual sentences imposed on counts 1, 3, 5, 6, 8, 10 and 11 are manifestly inadequate. Ground 5 alleges that her Honour made express errors in respect of findings that the respondent was of 'prior good character with respect to at least counts 1 ‑ 10' and that he had 'a law‑abiding past'. Ground 6 alleges that the total effective sentence infringed the first limb of the totality principle.
On 13 January 2020, Buss P granted leave to appeal in respect of all of the grounds of appeal.[2]
[2] Order of Buss P dated 13 January 2020; AB 7.
The facts
The facts of the offending were not disputed either in the court below or in this court. They may be summarised in the following way.[3]
[3] ts 24 - 27, 55 - 57.
For about two years prior to his offending, the respondent had been a regular user of methylamphetamine. All of the offending occurred while he was in a state of voluntary drug‑induced psychosis.
On the morning of 17 June 2017, the respondent was driving alone in his vehicle around the suburb of Whiteman. He had in his possession a semi‑automatic Walther 9 mm handgun and numerous rounds of ammunition. At the time, the respondent held a firearms licence and the handgun was registered in his name. The offending the subject of counts 1 ‑ 10 occurred in the space of approximately 30 minutes. It is convenient to deal with these offences in chronological order.
Count 10
At approximately 7.20 am, the respondent was driving his BMW south on Beechboro Road North, near the Hepburn Avenue intersection. AH was driving his black Jeep in a southbound direction on that road. AH approached the respondent's vehicle from behind. The respondent pointed his arm out of the driver's side window and pointed the handgun backwards towards AH's Jeep. The respondent then pointed the handgun towards the sky and discharged three rounds. He then pointed the handgun out of the sunroof of the BMW and discharged a further two rounds. AH telephoned police and reported the incident.
Counts 1 and 2
A short time after the commission of count 10, again at approximately 7.20 am, the respondent encountered another motorist, GF, who was then aged 64. She was driving her white Hyundai Sonata south on Beechboro Road North. The respondent overtook GF and drove in front of her vehicle for a short period. He then indicated left and pulled over, stopping his vehicle half on the road and half off it. GF slowed down to pass the vehicle. As she did so, she saw a gun pointed out of the driver's window. The respondent discharged the weapon seven times into GF's Sonata as she drove past. As he did so, GF ducked to avoid being struck by the shots that were fired. Unsurprisingly, GF was very distressed and feared for her life. She immediately drove to the Ballajura Police Station to report the incident. A subsequent examination of the Sonata revealed that a total of seven rounds had struck the passenger side panelling and rear tyre.
Counts 3 and 4
At approximately 7.25 am, the respondent was driving on Beechboro Road North, near the Marshall Road intersection. At the same time, DS, then aged 74, was driving a white Toyota HiLux north on Beechboro Road North near the Jules Steiner Memorial Drive intersection. As DS's vehicle approached the intersection, the respondent fired a shot at the HiLux. DS heard a loud bang. At this point, he did not know what had caused the noise. DS continued to his destination at the Bunnings Warehouse in Ellenbrook. When he got to Bunnings, DS inspected his vehicle and noticed a bullet hole in the front driver's side panel near the front wheel arch. He then drove to the Ballajura Police Station to report the incident.
Counts 5, 6 and 7
At approximately 7.30 am, the respondent was still driving on Beechboro Road North. The victims, a father and his daughter, JM and LM (who was then aged 16), were travelling in a blue Ford Ranger utility in a northbound direction on the same road. Approximately 500 m north of Marshall Road, JM and LM heard loud bangs caused by the respondent discharging two rounds from his handgun. The rounds penetrated the tailgate of the Ford Ranger. JM continued driving the vehicle to Gnangara Road where he inspected it and saw a bullet hole in the tailgate.
Counts 8 and 9
At approximately 7.40 am, CB was driving her white Škoda Yeti in a northbound direction on Beechboro Road North, just north of the Marshall Road intersection. Near the Potter's House Christian Centre, CB pulled over to her left, onto a stretch of gravel, to take some photographs. The respondent, who had been driving ahead of her, did a U‑turn and drove along the same stretch of gravel so that his BMW was facing her vehicle. At a distance of about 50 m, the respondent fired at least two shots at CB's vehicle. One shot went through the windscreen near the steering wheel, through the right upper corner of the driver's seat and exited through the rear hatch of the vehicle. At the time this shot was fired, CB was leaning over to the left side of her vehicle in order to pick up her camera. While in this position she heard the bullet fly past her. Another shot fired by the respondent hit the bonnet and ricocheted into the windscreen, without penetrating it, on the passenger side. At the time, CB's dog was in a crate in the back of her vehicle.
Police forensic examination of the scenes
Later on 17 June 2017, the police attended at two locations on Beechboro Road North and recovered a total of 18 9 mm ammunition casings. The respondent was identified as the offender and surveillance was conducted at the respondent's then home address.
Count 11
At about 7.45 pm on 18 June 2017, police officers observed the respondent's BMW depart from one of his home addresses. A number of unmarked police vehicles, including two vehicles containing Tactical Response Group (TRG) officers, followed the BMW. The respondent drove down Roe Highway in Thornlie and turned left onto Tonkin Highway in Kewdale, heading north. The BMW then turned onto Morley Drive at speed. At this point, the two unmarked vehicles carrying the TRG officers activated their emergency lights and sirens. The respondent did not stop his vehicle. Instead, he accelerated in an attempt to evade the police. The respondent drove in a reckless manner. He travelled in excess of 140 km per hour in a 70 km per hour zone. The respondent drove through a set of red traffic lights at the intersection of Morley Drive and Crimea Street in Morley without slowing down or applying his brakes. Two motorists had to brake heavily in order to avoid colliding with him.
The respondent continued down Morley Drive and turned left onto Wellington Street, Dianella. As his vehicle took the corner it spun around and was then boxed in by the two TRG vehicles. The respondent was removed from his BMW. He had on him a 10‑round magazine containing 9 mm handgun ammunition. On the front seat of the BMW was the respondent's Walther handgun with a 10‑round magazine in it. A further search of the BMW revealed numerous magazines containing 9 mm ammunition. Loose 9 mm ammunition was found in a number of locations in the vehicle. In total, police found 192 rounds of 9 mm ammunition in the vehicle.
Subsequent investigations
After the respondent was arrested, search warrants were executed at two residences used by the respondent. Among the items seized by the police were 256 rounds of 9 mm ammunition. A later ballistic analysis of the ammunition casings recovered by police on 17 June 2017 revealed that they were consistent with having been fired from the respondent's Walther handgun.
The impact of the respondent's offending
The sentencing judge was provided with a number of victim impact statements.
JM wrote that on the morning of 17 June 2017, he and his daughter were going about their usual Saturday morning activity of dog tracking and training. He was terrified by the offence and was terribly frightened for both his daughter and his dogs. Since the offence, neither he nor his daughter have gone dog tracking, and he experiences panic attacks which are triggered by being near the area where the shooting took place. JM describes how his daughter 'basically shut down' after the incident and refuses to speak to anyone about it. JM wrote that if he thinks about what happened, 'it freaks me out that something serious could have happened to my daughter or my dogs'.
GF wrote that 'a day never goes by that I don't relive the fear [of what occurred]'. She has sought professional help to deal with the anxiety and stress caused by the offending. She wrote that the anxiety and stress caused by the offending has adversely impacted upon her personality and enjoyment of life and that she considers it a miracle that she was not killed.
CB wrote that at the time of the offence she was petrified by what had occurred. Subsequently, she felt 'on edge' that she would be hunted down. CB wrote that she experienced feelings of being 'on edge' and 'out of control' when she reads or hears of shootings in the media. She has attended a trauma psychologist to deal with symptoms of post‑traumatic stress disorder.
The respondent's antecedents and mental health
The respondent was 34 years of age at the time of the offending, and 37 years of age at sentencing. He was born in Afghanistan. At the time of sentencing, he had lived in Australia for at least 17 years and was an Australian citizen. The sentencing judge described the respondent's living circumstances as 'a little unusual' in that he has a wife with whom he has two children and a long‑term partner with whom he has another child.[4]
[4] ts 58.
The respondent's family is very supportive of him, as the character references tendered to her Honour show. Despite his struggles with drug addiction, referred to below, he is well regarded by his family.
Her Honour observed that, since leaving school, the respondent has 'always worked very hard and earned very good money'. However, while in high school he used cannabis, and in the two years before his offending he used methylamphetamine with increasing frequency to the point where, as her Honour put it, the drug 'had a very very bad effect' on the respondent's mental health.[5]
[5] ts 58.
The respondent has no prior criminal history. He has two prior traffic convictions: on 7 October 2009 for speeding, and on 14 November 2016 for reckless driving.[6]
[6] AB 113.
The sentencing judge was provided with a report written by a forensic consultant psychiatrist, Dr Gosia Wojnarowska, dated October 2019.
In Dr Wojnarowska's opinion:[7]
(a)The respondent has a history of drug‑induced psychosis which was causally linked to his offending.
(b)The respondent does not suffer from a major mental illness such as schizophrenia or any other enduring psychotic disorder, nor does he present with features of a personality disorder. Specifically, he does not fulfil the criteria for antisocial personality disorder.
(c)The respondent's risk of reoffending is reduced if he abstains from illicit drug use. She noted that he had completed a self‑funded drug and alcohol counselling program in prison and was highly motivated to remain substance free in the community.
[7] Dr Wojnarowska's report page 3; ts 59.
Dr Wojnarowska wrote that the respondent described the emergence of psychotic symptoms which appeared to coincide with his methylamphetamine use in the 18 months prior to his offending. These symptoms deteriorated as a result of an increase in his methylamphetamine consumption during the two weeks prior to the offending.[8] The respondent told Dr Wojnarowska that, on 17 June 2017, he was driving to Whiteman Park and saw cars that he believed were following him. He thought that these cars had been pursuing him for the past 18 months. The respondent expressed the belief that somebody shot at him so he returned fire. The following day, when he was pursued by the police, he thought that someone was trying to kill him.[9] After the respondent's arrest, he was admitted to the Frankland Centre at Graylands Hospital for treatment for his drug‑induced psychosis.[10]
Rehabilitation programs undertaken by the respondent
[8] Dr Wojnarowska's report page 3.
[9] Dr Wojnarowska's report page 4.
[10] Dr Wojnarowska's report page 5.
Materials were provided to the sentencing judge which showed that, while on remand, the respondent completed the Wungening Drug and Alcohol Program,[11] the Brief Intervention Cognitive Skills Program,[12] and (at his own expense) the Addiction Recovery Process Program conducted by The Whitehaven Clinic.[13] A report written by Ms Kristy Abbot, a counsellor at The Whitehaven Clinic, stated that the respondent had 'engaged extremely well' in the program and was making 'positive progress on developing insight into his past behaviours around his meth[yl]amphetamine use and how it linked with his offending behaviour'.
[11] ts 60.
[12] AB 142 ‑ 145.
[13] AB 146 ‑ 148.
The sentencing judge's approach
Her Honour identified the following mitigating factors:
(1)The respondent's pleas of guilty, for which he was given a reduction of 15% for each offence pursuant to s 9AA of the Sentencing Act 1995 (WA).[14]
(2)The respondent's remorse.[15]
(3)The respondent's efforts towards rehabilitation, including drug and alcohol counselling.[16]
(4)The respondent's supportive family.[17]
(5)The respondent's good work history.[18]
(6)The respondent's prior good character 'with respect to at least counts 1 to 10' and his law‑abiding past.[19]
[14] ts 65.
[15] ts 61, 63.
[16] ts 59.
[17] ts 58.
[18] ts 58.
[19] ts 59, 63.
Her Honour accepted that, but for the respondent's drug‑induced psychosis, he would not have offended, but said that this condition was not mitigatory because it was 'self‑inflicted'.[20]
[20] ts 64.
Her Honour found that the respondent's risk of reoffending 'will be minimal' as long as he continued not to use illicit drugs. As to his illicit drug use, her Honour noted the steps the respondent had taken towards his rehabilitation. She said that she was 'prepared to find that [the respondent was] not at considerable risk of reoffending'.[21] Her Honour did not make a more precise finding as to the respondent's risk of reoffending.
[21] ts 63.
The only factor that her Honour expressly recognised as being aggravating was that the offending occurred as a result of the respondent's use of methylamphetamine.[22] By this, we understand her Honour to mean that the fact that the respondent committed the offences while under the influence of methylamphetamine was aggravating. However, her Honour characterised the offending as 'very serious'[23] and stated that the sentences she imposed had to reflect:[24]
… the very considerable risk that [the respondent] may have killed or very seriously physically injured one of [his] victims or even an innocent passerby when [he] discharged [his] firearm at least 18 times that morning. Or that [he] might have killed someone on the road when [he] fled from the police the following day.
[22] ts 61.
[23] ts 59.
[24] ts 64.
Her Honour had regard to the maximum penalties for the offences committed by the respondent and, in respect of count 11, to the mandatory minimum sentence of 6 months' imprisonment.[25]
[25] ts 58, 64.
Her Honour said that she had taken into account the need for general deterrence, but was of the view that there was 'a much lesser need for specific deterrence in [the respondent's] case'.[26]
[26] ts 64.
Her Honour regarded the sentencing of the respondent as 'difficult' because, as she put it, the respondent was 'an unusual offender'.[27] By 'unusual offender', her Honour explained:[28]
And I say [the respondent is] a little unusual because [he came] to this court with only a prior traffic record, unusual in the sense that these matters are very serious, but [the respondent came] to the court with only some prior traffic records.
[27] ts 63.
[28] ts 59.
It is clear from the sentencing remarks, read as a whole, that her Honour was impressed by the respondent's personal circumstances and his prospects. Consistent with this approach, at the conclusion of her sentencing remarks, her Honour wished the respondent well and expressed the hope that he could return 'to being a law‑abiding citizen and take [his] proper place in [his] family'. She said that it was an important matter that the respondent's family was there to support him at the sentencing hearing.[29]
[29] ts 66.
As we will explain later in these reasons, her Honour took an unorthodox approach to the issue of totality. Her Honour stated that all of the sentences she imposed had been reduced for reasons of totality (including those she ordered to be served concurrently). Her Honour continued:[30]
[T]he sentences have had to be reduced for totality reasons and if they'd been standalone sentences I may well have given a greater sentence for each individual incident.
Her Honour did not state the extent to which she had reduced the individual sentences for totality. Further, exactly what her Honour did is unclear, having regard to the expression 'I may well have given a greater sentence …'.
[30] ts 65.
Her Honour then pronounced the individual sentences for the offences, whether each sentence was to be served concurrently or cumulatively, and then the total effective sentence of 5 years 3 months' imprisonment.[31]
[31] ts 65 - 66.
Appellate sentencing principles
The general principles applicable to this appeal are well established. They were stated by Mazza JA (Martin CJ & Buss JA agreeing) in The State of Western Australia v Wilson[32] as follows:
The general principles applicable to this appeal are uncontroversial. This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.
As I have said, the grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116 [26].
The orthodox approach to the question of manifestly inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (1988) 38 A Crim R 337, 342 and Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].
The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
A relevant factor in the consideration of the State's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.
[32] The State of Western Australia v Wilson [2015] WASCA 119 [19] ‑ [23].
We also note the observations made by this court in The State of Western Australia v Nillson:[33]
Generally, where there is a challenge on totality grounds (as there is in this case) the severity of a sentence imposed on an individual count will fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. That is because the effect of a heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts or, alternatively, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. However, there will be times when it is appropriate to examine an individual sentence 'because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error': Giglia v The State of Western Australia [2010] WASCA 9 [40].
[33] The State of Western Australia v Nillson [2017] WASCA 68 [15].
The judge's approach to totality
Although not the subject of a ground of appeal, it is appropriate to begin with some observations concerning the judge's approach to totality.
Earlier in these reasons, we said that her Honour's approach to the application of the totality principle was unorthodox. The orthodox approach to the application of the totality principle has been explained by the High Court in Mill v The Queen;[34] Pearce v The Queen;[35] Johnson v The Queen[36] and Nguyen v The Queen.[37] These principles have been summarised and applied in many cases decided by this court. For example, in The State of Western Australia v Tittums,[38] Buss P and Mazza JA said that it was well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders, or otherwise distort general sentencing practices in relation to particular offences.
[34] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63.
[35] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48].
[36] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26].
[37] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37].
[38] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 83 MVR 476 [43].
It is recognised that on any application of the totality principle, a sentencing judge may, in order to achieve an appropriate total effective sentence, order one or more of the individual sentences to be served wholly or partly concurrently, or reduce the otherwise appropriate length of one or more of the individual sentences. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate. If a sentencing judge takes this course in the application of the totality principle, the judge should expressly state that fact in his or her sentencing remarks. Further, in order to achieve transparency, the sentencing judge should state the extent to which he or she has reduced the individual sentences in the application of the totality principle.[39]
[39] NI v The State of Western Australia [2020] WASCA 78 [79]; The State of Western Australia v Richards [2020] WASCA 129 [34].
In the present case, her Honour, after (correctly) concluding that no other sentence apart from immediate imprisonment was appropriate for the offences committed by the respondent, did not, in accordance with the above principles, first fix an appropriate sentence for each offence and then consider issues of concurrency, cumulacy and totality. It appears that her Honour adopted the reverse approach. This is to be inferred from her Honour's statement, prior to announcing the individual sentences that she had imposed, that all of the individual sentences had been reduced for reasons of totality. Further, in a case such as this, where an offender is being sentenced for a substantial number of individual offences, it is unusual, to say the least, for every individual sentence to be reduced for totality, particularly when a substantial proportion of them are to be served concurrently. It is not easy to understand why a sentence ordered to be served wholly concurrently would be reduced for totality reasons. Nor is it apparent why her Honour would have reduced the head sentence, imposed for count 8, on grounds of totality. One of the consequences of the manner in which the sentencing judge approached the totality principle is that it has the potential to affect this court's assessment of whether any of the challenged individual sentences are manifestly inadequate. An appellate court, when considering whether a sentence is manifestly inadequate, must consider whether the sentencing court may have applied the totality principle to reduce individual sentences as a means of arriving at an appropriate total effective sentence. As this court explained in Francis v The State of Western Australia,[40] the proper application of the totality principle may provide an explanation for the imposition of what might otherwise be regarded as an unreasonably low sentence for an individual sentence. The possibility that the sentencing court may have applied the totality principle in this manner may preclude the inference of error of principle being drawn from the result of the exercise of the sentencing discretion. In a case where the totality principle has been properly applied, the apparent leniency of the individual sentence may be capable of explanation otherwise than on the basis that there has been a failure to properly apply sentencing principles.
[40] Francis v The State of Western Australia [2019] WASCA 43 [82].
The opacity of her Honour's approach in reducing all individual sentences by an unspecified extent for totality makes more difficult this court's task of assessing whether the challenged individual sentences are manifestly inadequate. Counsel for the respondent accepted this in his oral submissions,[41] but expressly (and properly) declined to make a submission to the effect that this court should dismiss the grounds of appeal which allege manifest inadequacy because the individual sentences under challenge could be explained by the proper application of the totality principle.[42]
[41] Appeal ts 9.
[42] Appeal ts 12 - 13.
The State's submissions on the grounds of appeal
In her oral submissions, counsel for the State, while focusing on ground 6, maintained that the individual sentences which were challenged were wholly inadequate, notwithstanding 'the admittedly significant mitigating factors that the respondent had'.[43] Counsel emphasised the objective seriousness of the respondent's overall offending on 17 June 2017 involving, as it did, the respondent discharging his firearm at the victims' cars, exposing them to an extreme risk of harm and causing them great distress. Counsel submitted that neither the individual sentences nor the total effective sentence properly reflected the criminality of the respondent's conduct.[44] Counsel also submitted that her Honour erred by giving the respondent credit for prior good character. It was submitted that the respondent was not entitled to mitigation for this reason because of his traffic record and having regard to the fact that he had been illegally using methylamphetamine for two years.[45]
[43] Appeal ts 4.
[44] Appeal ts 7 - 8.
[45] Appeal ts 5.
In respect of count 11, counsel for the State submitted that the term of imprisonment imposed by her Honour, being the mandatory minimum, did not properly reflect the respondent's 'very egregious conduct'.[46]
[46] Appeal ts 8.
The respondent's submissions on the grounds of appeal
Counsel for the respondent emphasised the respondent's 'significant mitigating factors'.[47] While he conceded that the respondent's behaviour on 17 June 2017 was reckless and highly dangerous, particularly with respect to counts 1 and 8, counsel submitted that none of the individual sentences challenged by the State were manifestly inadequate. With respect to the offence committed on 18 June 2017, counsel for the respondent submitted that the sentence imposed upon the respondent for count 11 was not disproportionate to sentences imposed in other cases. Counsel for the respondent submitted that, in context, her Honour's findings as to prior good character should be understood to mean only that the respondent did not have prior convictions for similar offences to counts 1 ‑ 10.[48]
[47] Appeal ts 9.
[48] Appeal ts 19 - 20.
The grounds of appeal
We will first decide the allegation of express error in ground 5. We dismissed this ground. We will then explain why we upheld each of grounds 1, 4 and 6, all of which allege implied error. It follows from this that the whole of the sentencing judge's sentencing decision, including all of the sentences that she imposed, must be set aside and the respondent resentenced afresh.[49] Accordingly, it was unnecessary to decide grounds 2 and 3, which allege in combination that the individual sentences imposed on counts 3, 5, 6 and 10 were manifestly inadequate.
Ground 5 - did the sentencing judge err in her findings that the respondent was of prior good character and had a law‑abiding past?
[49] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9].
Ground 5 reads:[50]
The sentencing judge erred in fact in finding that the respondent was:
(a)of 'good prior character with respect to at least counts 1 to 10'; and
(b)that he had a 'law abiding past'
when the respondent had a prior conviction for reckless driving and, on his own admission, had been possessing and using a prohibited drug, methylamphetamine, for approximately 2 years and with increasing frequency from about 2 weeks up until the time of his commission of the offences.
[50] AB 12.
As stated earlier in these reasons, at the time he was sentenced, the respondent had no prior criminal history, but did have a prior traffic history. The prior traffic history revealed that on 14 November 2016, in the Perth Magistrates Court, the respondent was convicted of reckless driving on 23 August 2016. For this offence, the respondent was fined $700 and his motor driver's licence was disqualified for a period of six months.
At the sentencing hearing, it was accepted that the respondent had been a regular user of methylamphetamine for approximately two years prior to the commission of the offences on 17 and 18 June 2017. To possess or use methylamphetamine is a simple offence contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).
The respondent's counsel provided the sentencing judge with a number of statutory declarations and character references from family members attesting to the respondent's prior good character. Her Honour was also provided with a letter written by the respondent expressing his remorse.
In written sentencing submissions, the prosecutor submitted that the respondent was not a person of prior good character as he had been a regular methylamphetamine user for approximately two years, and due to his prior conviction for reckless driving which was committed less than a year before the offences that were then before the court. The prosecutor stated that the offence of reckless driving involved the respondent driving in excess of 140 km per hour for an extended distance while being followed by police.[51]
[51] State's outline of sentencing submissions dated 29 October 2019, par 17; AB 133.
Ground 5 seeks to impugn two parts of the sentencing remarks. Earlier in these reasons, we referred to her Honour's comment that the respondent was 'a little unusual because [he came] to this court with only a prior traffic record'. Immediately after this, her Honour said:[52]
Now, one is a speeding offence, but the other is of reckless driving with using [sic] excessive speed in August 2016. So that falls within the period of time in which you were using methylamphetamine.
Accordingly, I am prepared to treat you as a man of prior good character with respect to at least counts 1 to 10, and you are as a result entitled to the mitigation that that brings with it. (emphasis added)
[52] ts 59.
The second impugned statement appears later in the sentencing remarks at a point where her Honour was dealing with the issue of the respondent's risk of reoffending. Her Honour said:[53]
Now I've turned my mind a great deal to your risk of reoffending and it seems to me that given your law‑abiding past, your hardworking nature that the risk of reoffending will be minimal as long as you continue not to use drugs. I do think that you have understood the impact that the drugs had on you on this occasion and I've seen the certificates that have shown that you've taken steps towards drug rehabilitation. (emphasis added)
[53] ts 63.
In support of ground 5, the State submitted that her Honour erred in fact in finding that the respondent was of 'prior good character with respect to at least counts 1 to 10' and that he had a 'law‑abiding past'. The State submitted that the respondent had, by his own admission, been possessing and using methylamphetamine for a period of about two years prior to the commission of the offences for which he was sentenced. The State also noted the respondent's prior conviction for reckless driving and the circumstances in which it was committed. In all of these circumstances, it was submitted by the State that the respondent was not a person of prior good character, nor did he have a law‑abiding past.[54]
[54] Appellant's written submissions, pars 46 - 48; AB 26 - 27.
The respondent submitted that the State had taken the first impugned comment out of context. It was submitted that her Honour did not find that the respondent was unequivocally of prior good character. Rather, her Honour's statement was, in substance, a correct observation of the fact that the respondent did not have prior convictions for similar matters to those in counts 1 ‑ 10.[55] With respect to the second impugned comment, it was submitted that the reference to the respondent having a 'law‑abiding past' must also be seen in context as being a reference to the earlier comments confined to counts 1 ‑ 10.[56]
Ground 5 - disposition
[55] Respondent's written submissions, pars 46 - 49; AB 43.
[56] Respondent's written submissions, pars 50 - 53; AB 43 - 44.
An offender's prior good character is a mitigating factor. The weight that can be given to this factor will vary according to all of the circumstances.[57] For example, prior good character may be accorded little mitigatory weight in cases where the offending is serious and other sentencing considerations, such as the need for proper punishment and general deterrence, must take priority.
[57] Ryan v The Queen [2011] HCA 21; (2001) 206 CLR 267 [23] ‑ [25].
Where an offender asserts that he or she is of prior good character and that assertion is challenged by the prosecution, it is for the offender to prove the assertion on the balance of probabilities. In the present case, the State challenged the submission that the respondent was of prior good character. Accordingly, it was for the respondent to prove, by way of evidence, that he was a person of good character prior to the commission of the offences in the indictment.
It is trite to observe that sentencing remarks are to be read as a whole. As the sentencing remarks show, her Honour was aware that the respondent had no criminal record, but that he did have a traffic record. Her Honour was also aware of the respondent's illicit drug use in the two years prior to the commission of the offences. Further, she had been provided with details of the respondent's antecedents and character references which revealed that he had lived a productive and law‑abiding life until his descent into illicit drug use at about 32 years of age.
Plainly, in the two years leading up to the offending, the respondent was neither a person of good character, nor was he leading a law‑abiding life. However, it was open to her Honour to conclude that the respondent was, prior to his descent into illicit drug use, a person of good character who had led a law‑abiding life. These were relevant sentencing considerations because they may be considered as pointing favourably towards the respondent's prospects of rehabilitation.
As we read the whole of her Honour's reasons, it is in the limited sense described in the previous paragraph that the impugned comments should be understood. So understood, we do not consider that her Honour erred.
Ground 5 has not been made out.
Ground 1 - were the sentences in respect of counts 1 and 8 manifestly inadequate?
Ground 1, as particularised, is in these terms:[58]
[58] AB 9 - 10.
1.The sentencing judge erred in law by imposing a sentence of imprisonment on each of counts 1 (3 years' imprisonment) and 8 (3½ years' imprisonment) that was so inadequate as to manifest error, having regard to:
(a)the maximum penalty of 20 years' imprisonment for each of these offences;
(b)the serious nature of the offences and the circumstances in which each was committed, including that:
(i)the respondent, intending to harm the victims, fired shots from his handgun, whereby the life, health or safety of the victims was or was likely to be endangered;
(ii)the respondent was in a self‑induced methylamphetamine psychosis at the time;
(iii)in relation to the count 1 offence, the respondent, having overtaken the victim's vehicle, pulled over to the side of the road, half on and half off the road, forcing the victim to slow down to pass his vehicle at which time he discharged his handgun into the victim's vehicle as the victim drove past;
(iv)in relation to the count 1 offence, the respondent fired 7 shots into the victim's vehicle;
(v)in relation to the count 8 offence, the respondent turned his vehicle around to follow the victim's vehicle, faced it from about 50 metres away, both vehicles being stationary and then fired at least two shots that struck the victim's vehicle, one round passing through the right‑hand shoulder of the driver's seat, narrowly missing the victim;
(vi)each of the victims was unknown to the respondent, had not had any interaction with the respondent and was innocently going about their lawful business on a public road; and
(vii)there was a real likelihood that the shots fired by the respondent would endanger the life, health or safety of other passers‑by;
(c)the need for each sentence to adequately reflect general deterrence as well as personal deterrence and adequate punishment for offending of this nature.
Counts 1 and 8 are offences contrary to s 304(2) of the Code, which provides:
If a person, with an intent to harm, omits to do any act that it is the person's duty to do, or does any act, as a result of which -
(a)bodily harm is caused to any person; or
(b)the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 20 years.
It is unnecessary to repeat the facts which constitute counts 1 and 8. Their objective seriousness is self‑evident. The respondent admitted that he committed counts 1 and 8 with intent to harm. As the sentencing judge[59] and defence counsel[60] recognised, there was a very considerable risk that the respondent's offending conduct may have killed or very seriously physically injured the victims. In the case of MF, the respondent fired seven rounds into her vehicle. In the case of CB, he fired at least twice into her windscreen. The first shot went through the windscreen and hit the driver's seat. Had CB not been leaning to her left to pick up her camera, there was a strong likelihood she would have been hit with the risk of inflicting very serious, if not fatal, injury to her. Both GF and CB were extremely fortunate not to have been struck by the gunfire. To deliberately create such a risk involves a very high level of criminality.
[59] ts 64.
[60] ts 32.
The offences struck fear into the victims. The psychological effect upon them has been profound and enduring. The respondent's actions were sudden and random against victims who were completely unprepared for what occurred, and therefore extremely vulnerable. The respondent was in a psychotic state as a result of his voluntary use of methylamphetamine. Of course, the fact that he was in this self‑induced state provides no mitigation whatever. The respondent's conduct was both outrageous and extremely dangerous. Conduct of the kind in which the respondent engaged, as outlined in [70] above, must be generally deterred and, ordinarily at least, must be met with substantial punishment.
While it is true that the respondent's conduct did not inflict any physical harm on his victims, an offence contrary to s 304(2) of the Code occupies territory different from those offences in which serious harm is inflicted. The offence encompasses a broad range of conduct done with a variety of forms of intent to harm. Among other things, it addresses conduct in which the offender deliberately creates a risk of harm, by acting with an intent to unlawfully endanger the life, health or safety of another. As this court observed in The State of Western Australia v Darroch,[61] the structure of s 304(2) reveals that potential harm may be as significant as actual harm, and cases cannot be approached with a singular focus on the presence and extent of physical injuries. Where the potential for harm inherent in the offender's conduct materialises and the victim suffers serious injuries, that will be a significant aggravating factor, but the absence of physical injuries is not mitigating and does not prevent the offence being a serious example of an offence under s 304(2).
[61] The State of Western Australia v Darroch [2018] WASCA 114 [34].
There were the significant mitigating factors identified by the sentencing judge, including the respondent's pleas of guilty, his remorse, his family support and the steps he has taken towards his rehabilitation from illicit drug use. Her Honour found that consequently there was a much lesser need for personal deterrence. The respondent's risk of reoffending was not the subject of a precise finding by her Honour. Her finding that the respondent was 'not at considerable risk of reoffending' does not equate with a finding that the respondent poses no, or a minimal, risk of reoffending. What can be said is that the respondent's risk of reoffending depends upon his ability to deal with his illicit drug use. Although the respondent has taken significant steps in this regard, the evidence before her Honour falls short of demonstrating that the respondent, when released into the community, will be able to cope without illicit drugs. In any event, while mitigating factors must be given appropriate weight, they cannot be allowed 'to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'.[62]
[62] Veen v The Queen [No 2] (1988) 164 CLR 465, 477 as quoted in Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [53].
By reason of the wide variety of circumstances in which offences under s 304(2) of the Code occur, and of the offenders that commit them, there is no sentencing tariff.[63] In addition to Darroch, we have had regard to the recent cases of Kaokula v The State of Western Australia[64] and Vander Waide v The State of Western Australia[65] and the cases analysed therein.[66] It is unnecessary to repeat what was said in those cases. The cases reveal that a wide range of sentences have been imposed for offences contrary to s 304(2) of the Code, and that substantial individual sentences, considerably longer than the individual sentences imposed for counts 1 and 8, have been imposed in cases which involve serious offending. The cases also reveal that general deterrence is frequently an important sentencing consideration.
[63] Darroch [38].
[64] Kaokula v The State of Western Australia [2016] WASCA 198.
[65] Vander Waide v The State of Western Australia [2019] WASCA 148.
[66] Vander Waide [71] - [73].
Having regard to all of the relevant circumstances and sentencing considerations, including the mitigating factors, we are persuaded that the sentences imposed by her Honour on both counts 1 and 8 were manifestly inadequate. The sentences were not merely low or lenient. Each was unreasonable or plainly unjust having regard to the maximum penalty of 20 years' imprisonment, the objectively serious criminality of the offences, the particular need to provide proper punishment and general deterrence, and the mitigation. While there were significant mitigating factors, they could not justify the sentences that were imposed.
For reasons we have already explained, the judge's reference to a reduction of each sentence for totality does not alter this conclusion. The sentence on count 1 was ordered to be served concurrently; the sentence on count 8 was the head sentence.
Implied error has been established. Ground 1 has been made out.
Ground 4 - was the sentence imposed on count 11 manifestly inadequate?
Ground 4, as particularised, is in these terms:[67]
[67] AB 11.
4.The sentencing judge erred in law by imposing a sentence of 6 months' immediate imprisonment on count 11, being, [sic] that was so inadequate as to manifest error, having regard to:
(a)the mandatory minimum penalty of 6 months' imprisonment;
(b)the maximum penalty of 5 years' imprisonment for this type of offence;
(c)the serious nature of the offence and the circumstances in which it was committed, including that the respondent:
(i)drove at more than 140 kilometres per hour at night in a 70‑kilometre‑an‑hour zone on a major public road;
(ii)drove at speed through a red traffic light at the intersection of Morley Drive and Crimea Street, Morley without slowing down or applying his brakes thereby causing two other motorists to severely brake their vehicles to avoid colliding with the respondent's vehicle;
(iii)drove in this manner in order to escape pursuit by the police;
(iv)that the respondent was in a self‑induced methylamphetamine psychosis at the time;
(d)the need for the sentence to adequately reflect general deterrence as well as personal deterrence and adequate punishment for offending of this nature.
Section 60(1A) of the Road Traffic Act 1974 (WA) (RTA) provides that a person commits an offence if the person wilfully drives a motor vehicle in a reckless manner in either a confiscation zone or any other place. Section 60B(4) of the RTA provides that if an offence against s 60 is committed in circumstances of aggravation, relevantly to this case, where the driver was concerned to escape pursuit by a police officer, the person commits a crime and is liable to imprisonment for 5 years. Section 60B(5), which commenced operation on 14 January 2017, requires a court sentencing a person for an offence against s 60, committed in this particular circumstance of aggravation, to sentence the person to a term of imprisonment of at least 6 months.[68] The combined effect of the abovementioned provisions in the RTA is that, in respect of count 11, the respondent was liable to a maximum penalty of 5 years' imprisonment and a mandatory minimum sentence of 6 months' imprisonment.
[68] Road Traffic Amendment (Impounding and Confiscation of Vehicles) Act 2016 (WA).
The sentencing judge found that the respondent 'might have killed someone on the road when [he] fled from the police'.[69] This finding was amply justified by the manner in which the respondent drove his vehicle on the evening of 18 June 2017 and described at [17] ‑ [18] above. In the sentencing proceedings before her Honour, the respondent's counsel accepted that the driving was '… a higher example of reckless driving'.[70] Counsel's concession was, having regard to all of the circumstances of the offending, apt.
[69] ts 64.
[70] ts 39.
Not only did the respondent drive, at times, at extreme speed in a built‑up area, he ran a red traffic light and almost collided with two other drivers. His manner of driving exposed other road users to a risk of serious injury or death, and it was extremely fortunate that no one was injured. He drove while in the grip of a drug‑induced psychosis that was a result of his voluntary use of methylamphetamine. The respondent had a prior conviction for reckless driving, which, to some degree, gave rise to the need for personal deterrence.
The statutory minimum penalty, like a statutory maximum, is a legislative direction as to the seriousness of the offence.[71] The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.[72] The minimum penalty is for offences within the least serious category of offending.[73] Where there is a mandatory minimum sentence of imprisonment, the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate.[74]
[71] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [46].
[72] Bahar [54].
[73] Bahar [54].
[74] Bahar [58].
The cases relied upon by the respondent do not assist the respondent.[75]
[75] Garlett v The State of Western Australia [2016] WASCA 80; Jackson v Mitchell [2019] WASC 372 and Boase v Roberts [2018] WASC 45.
In the present case, having regard to the maximum and minimum statutory penalties, the circumstances of the offence, the mitigating factors and even factoring in some reduction for totality, it was not open to conclude that the offence came within the least serious category. The respondent drove in a sustained and highly dangerous way in a built‑up area to avoid apprehension by the police, and put the safety of other road users in jeopardy. It is conduct which required the imposition of a significant term of imprisonment, beyond the statutory minimum penalty. The sentence imposed was not merely low or lenient. It was unreasonable or plainly unjust.
Implied error has been established. Ground 4 has been made out.
Ground 6 - did the total effective sentence infringe the first limb of the totality principle?
We will not recite again the facts of the offending, the respondent's personal circumstances or the mitigating factors. The respondent's offending was quite unlike anything that has previously come before this court. There are no comparable cases. The absence of comparable cases is not a barrier to this court concluding that there was an infringement of the totality principle.
The conduct engaged in by the respondent which constituted counts 1 ‑ 10 involved a very high level of criminality. Over a period of about 30 minutes, he discharged his firearm at least 18 times. He shot at, or in the vicinity of, five vehicles. The respondent terrorised the occupants of the vehicles and endangered their lives. The shootings occurred in a built‑up area on a significant arterial road in which members of the public were simply going about their business. The respondent's actions were random and unpredictable. The adverse psychological effects upon the victims are profound.
Count 11 was a serious example of its type for the reasons which we have already given.
In combination, all of the offences committed by the respondent exhibited a high level of criminality. The dangerous conduct engaged in by the respondent on 17 and 18 June 2017 must be generally deterred.
Despite the mitigating factors, a total effective sentence substantially more than that imposed by her Honour was required to reflect the overall seriousness of all the offences committed by the respondent and to give effect to the sentencing considerations of, in particular, proper punishment and general deterrence. Acknowledging that the mitigating factors were substantial, they could not justify the total effective sentence that was imposed upon the respondent. That sentence simply did not bear a proper relationship to the respondent's overall criminality, having regard to all of the relevant circumstances and sentencing factors. We are satisfied that the total effective sentence that was imposed by her Honour infringed the first limb of the totality principle. It was unreasonable or plainly unjust and cannot stand.
Ground 6 has been made out.
The residual discretion
Counsel for the respondent did not submit that the residual discretion pursuant to s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. Of course, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised.[76]
[76] See CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34], [66].
In the present case, appellable 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. Sentences substantially greater than those imposed by the sentencing judge, including the total effective sentence, must be imposed. The State's appeal against sentence must be allowed, the sentences imposed by her Honour must be set aside and the respondent must be resentenced by the court.
Resentencing
This Court either had, or was provided after the hearing with, all of the material necessary to resentence the respondent. On 18 August 2020, counsel for the respondent provided the court with a copy of a parole order made on 4 August 2020 which provided for the respondent to be released on parole on 17 September 2020. The reasons for the Parole Board's decision confirmed that the respondent had engaged in rehabilitative programs and that he was highly motivated to remain substance‑free in the community. We took these matters into account in deciding not to exercise the residual discretion and in resentencing the respondent. We would, as did the sentencing judge, allow a discount of 15% pursuant to s 9AA of the Sentencing Act, on the sentence that we would have otherwise imposed for each offence, on account of the plea of guilty. We have also reduced each of the sentences that we would otherwise have imposed to reflect other mitigating factors, including the respondent's remorse, the voluntary efforts he has taken towards his rehabilitation, his family support and his favourable work history. Against these factors, of course, must be weighed the objective seriousness of each of the offences he committed.
After taking into account the facts and circumstances of the respondent's offending, his personal circumstances and all relevant sentencing factors, we imposed the sentences set out at [5] above.
While counts 1 ‑ 10 occurred within an approximately 30‑minute period, some accumulation of the sentences imposed was required to properly reflect the overall criminality of what the respondent did on 17 June 2017. The offending which occurred on 18 June 2017 was separate in time and nature to the offences which were committed the previous day. Therefore accumulation of that sentence was warranted. Having regard to the first limb of the totality principle, in our opinion, a total effective sentence of 8 years 6 months' imprisonment properly reflects the total criminality of all of the offences committed by the respondent, having regard to all relevant circumstances and sentencing factors, including the matters of mitigation and the respondent's personal circumstances. To produce that total effective sentence we reduced the sentence on count 11 from 2 years, which we considered otherwise the appropriate term, to 12 months.
We imposed the same disqualifications as were imposed at first instance. We also considered that the respondent should remain eligible for parole and that the sentences should be taken to have taken effect on 18 June 2017, and so ordered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza26 NOVEMBER 2020
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