The State of Western Australia v Tawhitapou - [2024] WASCA 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TAWHITAPOU [2024] WASCA 25
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   16 JANUARY 2024
DELIVERED          :   15 MARCH 2024
FILE NO/S:   CACR 125 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KARENA RONGPOAI SHANE TAWHITAPOU
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   RITTER DCJ
File Number            :   IND 815 of 2022
IND 92 of 2023

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of three counts of aggravated home burglary, one count of stealing, one count of aggravated armed robbery and one count of aggravated robbery - Total effective sentence of 4 years' immediate imprisonment - Whether total effective sentence unreasonable or plainly unjust - Whether primary judge made an error of fact and law in his findings with respect to one of the aggravated home burglaries

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1)(a), s 31(4), s 41(2)
Criminal Code (WA), s 378, s 392, s 401(1)(a), s 401(2)(a)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Sentencing decision of the primary judge set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Mr L M Fox SC
Respondent	:	Mr D J McKenzie

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	David McKenzie Legal Pty Ltd

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

CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Creusot v The State of Western Australia [2022] WASCA 117
Goddard v The State of Western Australia [2023] WASCA 164
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
The State of Western Australia v Billett [2022] WASCA 158
The State of Western Australia v Krakouer [2022] WASCA 118
The State of Western Australia v McDonagh [2022] WASCA 108
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
The State of Western Australia v Slater [2023] WASCA 105

BUSS P & MAZZA JA:

This is a State appeal against sentence.
The respondent was convicted on his pleas of guilty of three counts in District Court Indictment 815 of 2022 (IND 815) and three counts in District Court Indictment 92 of 2023 (IND 92).
The counts in IND 815 alleged:
(a)On or about 30 November 2019, at Scarborough, the respondent, while in the place of SWS without his consent, stole personal identification documents and other items; that immediately before the commission of the offence the respondent knew or ought to have known that there was another person in the place; and that the place was ordinarily used for human habitation, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code) (count 1).
(b)On the same date and at the same place, the respondent stole a wallet containing identification cards, a special edition bottle of whiskey, a bottle of Jim Beam, small spirit bottles, a black Raiders cap, car keys, a Playstation 4 console and cash, the property of SWS, contrary to s 378 of the Code (count 2).
(c)On or about 1 December 2019, at City Beach, the respondent entered or was in the place of CS without his consent, with intent to commit an offence therein; that the respondent was in company with another; and that the place was ordinarily used for human habitation, contrary to s 401(1)(a) of the Code (count 3).
The maximum penalty for the aggravated home burglary the subject of count 1 is 20 years' imprisonment; the maximum penalty for the stealing the subject of count 2 is 7 years' imprisonment; and the maximum penalty for the aggravated home burglary the subject of count 3 is 20 years' imprisonment.
The counts in IND 92 alleged:
(a)On 13 December 2019, at Gosnells, the respondent, while in the place of EEC and BG without their consent, committed the offence of assault; that immediately before the commission of the offence the respondent knew or ought to have known that there was another person in the place; and that the place was ordinarily used for human habitation, contrary to s 401(2)(a) of the Code (count 1).
(b)On the same date and at the same place, the respondent stole from EEC, with violence, a sum of money, the property of EEC; that the respondent was armed with a dangerous weapon (namely a knife); that the respondent was in company with another; and that the respondent did bodily harm to EEC and BG, contrary to s 392 of the Code (count 2).
(c)On 21 January 2022, at Cannington, the respondent stole from AMT, with violence, a mobile telephone the property of AMT; that the respondent was in company with another; and that the respondent did bodily harm to AMT, contrary to s 392 of the Code (count 3).
The maximum penalty for the aggravated home burglary the subject of count 1 is 20 years' imprisonment; the maximum penalty for the aggravated armed robbery the subject of count 2 is life imprisonment; and the maximum penalty for the aggravated robbery the subject of count 3 is 20 years' imprisonment.
On 6 October 2023, Ritter DCJ sentenced the respondent on all of the counts in IND 815 and all of the counts in IND 92.
As to IND 815, his Honour imposed the following sentences:
(a)count 1: 8 months' immediate imprisonment (reduced from 18 months in the application of the totality principle);
(b)count 2: 4 months' immediate imprisonment (reduced from 12 months in the application of the totality principle); and
(c)count 3: 6 months' immediate imprisonment (reduced from 18 months in the application of the totality principle).
As to IND 92, his Honour imposed the following sentences:
(a)count 1: 2 years' immediate imprisonment (reduced from 3 years in the application of the totality principle);
(b)count 2: 2 years 2 months' immediate imprisonment (reduced from 4 years in the application of the totality principle); and
(c)count 3: 14 months' immediate imprisonment (reduced from 3 years in the application of the totality principle).
The primary judge ordered that the individual sentences for count 1 in IND 815 and count 3 in IND 92 be served cumulatively upon each other and cumulatively upon the individual sentence for count 2 in IND 92. The other individual sentences were ordered to be served concurrently with the individual sentence for count 2 in IND 92. The total effective sentence was therefore 4 years' immediate imprisonment. The total effective sentence was backdated to 12 February 2022 to take account of time the respondent had spent in custody solely in relation to the offending in question. A parole eligibility order was made.
The State relies upon two grounds of appeal. Ground 1 alleges, in essence, that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle. Ground 2 alleges, in essence, that his Honour erred in fact and law in finding, with respect to the aggravated home burglary the subject of count 1 in IND 815, that the complainant was not at home when the offence was committed. On 10 November 2023, Buss P granted leave to appeal on those grounds and made an urgent appeal order.
We would allow the appeal. The primary judge's sentencing decision (including all of the sentences imposed and the orders for cumulacy and concurrency) must be set aside. This court should resentence the respondent. Our reasons are as follows.

The facts and circumstances of the offending the subject of IND 815

As to counts 1 and 2 in IND 815, between 11.00 pm on 30 November 2019 and 7.40 am on 1 December 2019, the respondent burgled the complainant's (SWS's) home. The respondent entered the home through the front door and stole various items from the living room, the kitchen and the study. The stolen items included the complainant's police identification card, his wallet and its contents, alcohol, about $50 cash and a gaming console. The total value of the property stolen was about $650.
As to count 3 in IND 815, during the same night the respondent burgled another home in an adjacent suburb. The respondent and a co‑offender entered the complainant's (CS's) premises by a gate and unsuccessfully attempted to enter the house through a glass panelled exterior bedroom door. The false exterior handle to that door was unscrewed and placed outside the laundry door. The respondent and the co‑offender stole two cans of soft drink from a refrigerator in an undercover alfresco area.
The respondent was not apprehended and charged with counts 1, 2 and 3 until 28 October 2021.

The facts and circumstances of the offending the subject of IND 92

As to counts 1 and 2 in IND 92, the offending occurred on the night of 13 December 2019.
The complainants were at their home.
At about 9.30 pm the female complainant, EEC, answered a knock at the front door. As she opened the front door, the respondent grabbed the flyscreen door and swung it open.
The respondent punched EEC to the mouth with a closed fist, causing her to stumble backwards. The respondent punched EEC again to her face, grabbed her by the throat and pushed her backwards into the house. The respondent then put EEC in a headlock and dragged her along the hallway.
The male complainant, BG, heard the commotion and came to EEC's aid. BG endeavoured to free EEC from the respondent's headlock. She was able to slide free. Her glasses fell to the floor. As she reached for her glasses, the respondent stomped on them and kicked her in the back.
BG and the respondent continued to struggle. A co‑offender, who was armed with a knife, entered the complainants' home. BG ran towards the co‑offender and attempted to push him out the front door. BG and the co‑offender wrestled for control of the knife. During the struggle the co‑offender pushed the knife into BG, causing a mild laceration.
Next, the respondent grabbed BG around the neck and pulled him away from the co‑offender. The respondent and the co‑offender kicked BG to the head while he lay on the ground at the bottom of the stairs outside the front of the house. The respondent lay on top of BG and held his shoulders, shaking him and hitting his head on the ground.
EEC saw the assault upon BG. She went inside the house, secured the front door and grabbed her mobile telephone to call the police. The co‑offender forced his way into the house again through the front door. He went to the kitchen. The co‑offender held the knife towards EEC and made a stabbing motion with it. He then held the knife against EEC's chest and demanded money. EEC gave him $200 cash. As the co‑offender left the kitchen, EEC heard someone outside the house shout, 'Did you get it?'.
EEC checked upon the welfare of BG and then called the police.
The respondent was not arrested and charged with counts 1 and 2 until 28 October 2021 (being the date on which he was also arrested and charged with the counts the subject of IND 815).
The respondent was held in custody on remand between 28 October 2021 and 5 November 2021. Apart from the period between 31 December 2021 and 3 January 2022, the respondent was on bail between 5 November 2021 and 21 January 2022 (when he committed the offence the subject of count 3 in IND 92).
As to count 3, shortly before 6.00 pm on 21 January 2022, the respondent and a co‑offender were walking on the upper level of a car park at the Carousel shopping centre. They encountered the complainant, AMT, who was unknown to them.
As the complainant walked towards the shopping centre, the respondent and the co‑offender bumped into him. The complainant turned and looked at the respondent and the co‑offender, who gave the impression that they wanted to engage in a fight. The complainant began to walk away. The respondent and the co‑offender chased him.
The respondent punched the complainant twice to his face, which caused the complainant to fall and strike his head on the ground. As he fell, the complainant dropped his wallet.
The co‑offender picked up the complainant's wallet and hid it in his own pants. The complainant asked for the return of his wallet. The co‑offender refused.
The co‑offender then struck the complainant between eight and twelve times to the head and the chest, causing him to fall repeatedly. The respondent shouted at the co‑offender, 'Get the phone'. A witness to the attack by the respondent and the co‑offender told them that police had been called and that there were CCTV cameras in the car park.
The co‑offender grabbed the complainant's mobile telephone and ran to the co‑offender's car. The respondent then struck the complainant several times to the head while the complainant was on the ground. The respondent grabbed the complainant's other mobile telephone and ran to the co‑offender's car. They drove away.
The complainant's wallet contained less than $200 cash and various personal cards and other items. One of the complainant's telephones was found in Ellenbrook, in a damaged condition, the following day. No other property was recovered.
On 24 February 2022, the respondent was arrested and charged with count 3.

The primary judge's sentencing remarks

The primary judge recounted in his sentencing remarks the facts and circumstances of the offending.
During his recitation of the facts of the offending the subject of count 1 in IND 815, his Honour said that the complainant was not at home at the time of the offence (ts 43 ‑ 44).
The primary judge referred to victim impact statements made by EEC and BG in relation to the offending the subject of counts 1 and 2 in IND 92 (ts 48 ‑ 49). EEC has suffered significant emotional trauma as a result of the offending. Her medical practitioner has prescribed a high dose of antidepressant medication and also medication to help her sleep. EEC has received psychotherapy. The offending has had a serious deleterious effect upon BG. He experienced major depression as a result of his (wholly unjustified) belief that he had failed his family as a result of being unable to protect them and as a result of his fear that similar offending may occur again. BG has bipolar disorder. The offending exacerbated his symptoms. He relies upon medication and psychotherapy to cope.
His Honour said the respondent's offending was aggravated by the vulnerability of the complainants (ts 50 ‑ 51). His Honour mentioned some other aggravating factors, namely the premeditated nature of the offending; the persistence in and the repetition of violence against EEC, BG and AMT; and the use of the knife in the offending against EEC and BG (which could easily have resulted in more serious injuries than it did) (ts 51).
The primary judge referred to the respondent's personal circumstances and antecedents. The respondent was aged 24 at the time of the offending the subject of IND 815 and the offending the subject of counts 1 and 2 in IND 92. He was aged 26 at the time of the offending the subject of count 3 in IND 92. The respondent was aged 27 when sentenced.
The respondent was born in New Zealand. He has permanent resident status in Australia. The respondent's parents separated when he was aged 11. His father abused alcohol and normalised domestic violence. His mother moved to Queensland with some of the respondent's siblings. The respondent remained in New Zealand with his father. After his mother moved to Queensland, the respondent was also looked after by his grandparents for some time.
The respondent attended boarding school. He was victimised and bullied by other students. This treatment mirrored the respondent's home life, especially the treatment he received from his father. The respondent arrived in Australia at the age of 14. He lived with his mother and some of his siblings. By that age, the respondent had used cannabis and alcohol. By the age of 18 the respondent had experimented with a variety of drugs. Nevertheless, he was able to complete high school in Queensland.
After the respondent completed his schooling, he worked as a telecommunications technician. He moved to Western Australia when he was aged 22. Some of his family members resided in this State. The respondent was employed as a trades assistant and a scaffolder.
When he committed counts 1 and 2 in IND 815 the respondent was feeling depressed and suicidal and had increased his consumption of illicit substances.
In 2020 the respondent returned to Queensland. He resumed his relationship with a former partner. The relationship was toxic and dysfunctional. His partner became pregnant by him.
In about early 2021 the respondent returned to Western Australia. He began a new job which involved travelling and working throughout the State. His former partner gave birth to the respondent's son in 2021. Shortly after the respondent was charged and released on bail on 5 November 2021, the respondent resumed living with his former partner. The resumption of cohabitation was disastrous. The respondent met with negative people, consumed drugs, lost his employment and committed count 3 in IND 92.
His Honour noted that while in custody on remand the respondent had experienced 23 hour a day Covid lockdowns. However, the respondent had used his time in custody productively. He had undertaken a number of courses including a Narcotics Anonymous course. He had also begun an alcohol and drug programme.
The information before the primary judge included two written references from people, including a former employer, who spoke well of the respondent. Other information before his Honour included a presentence report dated 8 July 2022, another presentence report dated 21 March 2023 and a psychological report dated 16 November 2022 from Tanina Oliveri, a clinical and forensic psychologist. The author of the presentence report dated 8 July 2022 said that the respondent displayed limited victim empathy for his criminal behaviour. Ms Oliveri said that the respondent had treatment needs in relation to his substance misuse; depression and anxiety; emotional regulation; coping skills; decision‑making; and consequential thinking.
The respondent has a prior criminal record. However, the previous offences are relatively minor and mostly involve traffic offences. The previous offences have been punished by fines of between $100 and $500.
His Honour allowed the respondent a discount of 20% for each of his pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour found that there was 'limited evidence of any remorse' by the respondent, apart from his pleas of guilty (ts 56). His Honour said that the respondent was 'still a relatively young offender' (ts 56). His Honour indicated that the respondent had 'taken some positive steps towards rehabilitation' (ts 57). The respondent had support from members of his family. His Honour said that 'on balance' he was 'prepared to take [the respondent's] willingness to change and rehabilitate into account by way of mitigation' (ts 57).
The primary judge concluded that the only appropriate sentences for the respondent were terms of imprisonment. His Honour referred to the first limb of the totality principle. His Honour then said that, in addition, he 'must not impose a sentence upon [the respondent] which is crushing' (ts 60).
After stating the individual sentences which he thought were appropriate for each count in IND 815 and IND 92 (see [8] and [9] above), his Honour said that a total effective sentence of 4 years' imprisonment was required. His Honour achieved that outcome by reducing each of the individual sentences that his Honour had stated were appropriate (see [8] and [9] above).
Finally, the primary judge considered whether the terms of imprisonment could be suspended. His Honour was positively satisfied that it was not appropriate to conditionally suspend or suspend the sentences.

The State's submissions

Counsel for the State submitted in relation to ground 1 that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle in that the sentence failed properly to reflect the overall criminality of the respondent's offending conduct.
The State did not contend that the length of any of the proposed individual sentences (see [8] and [9] above), before his Honour reduced those sentences in the application of the totality principle, was manifestly inadequate.
However, it was submitted that it was appropriate and necessary to impose a significant degree of accumulation as between:
(a)the proposed individual sentences for the aggravated home burglary the subject of count 1 (that is, 3 years' immediate imprisonment) and the aggravated armed robbery the subject of count 2 (that is, 4 years' immediate imprisonment) in IND 92;
(b)the proposed individual sentences for the two unrelated aggravated home burglaries the subject of count 1 (that is, 18 months' immediate imprisonment) and count 3 (that is, 18 months' immediate imprisonment) in IND 815; and
(c)the proposed individual sentence for the aggravated robbery the subject of count 3 (that is, 3 years' imprisonment) in IND 92.
Counsel noted that the total effective sentence of 4 years' immediate imprisonment was identical to the proposed individual sentence for count 2 in IND 92 before the reduction in that sentence on account of totality.
It was submitted that the primary judge's apparent reference to the second limb of the totality principle, in the context of his Honour's statement that he 'must not impose a sentence upon [the respondent] which is crushing' (ts 60), was misconceived because the respondent was aged 27 when sentenced and there was no possibility that a proper total effective sentence would deprive him of the capacity for a useful life upon release.
Counsel for the State submitted in relation to ground 2 that count 1 in IND 815 pleaded, as a circumstance of aggravation, that immediately before the commission of the offence the respondent 'knew or ought to have known that there was another person in the place'. The circumstance of aggravation was relevant both to the seriousness of the offence and to the applicable maximum penalty. Absent the circumstance of aggravation, the maximum penalty would have been 18 years' imprisonment rather than 20 years' imprisonment. The factual basis of the circumstance of aggravation was set out in SWS's witness statement (which formed part of the prosecution brief). SWS stated that he went to sleep at about 11.30 pm on 30 November 2019 and that he awoke at about 7.30 am on 1 December 2019. When he awoke, SWS discovered that his home had been burgled while he slept. The amended statement of material facts, which the prosecutor read aloud at the sentencing hearing on 25 July 2023, stated that '[t]he victim was at home at the time of the offence' (emphasis added) [7]. However, the prosecutor's reading of the material facts was erroneously transcribed as '[t]he victim wasn't home at the time of the offence' (emphasis added) (ts 18). When his Honour made his sentencing remarks on 6 October 2023, his Honour observed correctly that count 1 in IND 815 pleaded the circumstance of aggravation and that the applicable maximum penalty was 20 years' imprisonment (ts 44). However, his Honour found (presumably in reliance upon the erroneous transcription) that SWS was not at home at the time of the offending (ts 43 ‑ 44).

The respondent's submissions

Counsel for the respondent submitted in relation to ground 1 that the primary judge's approach to the application of the first limb of the totality principle was not erroneous and did not mask an implied error in the sentencing outcome.
It was submitted that the proposed individual sentences (see [8] and [9] above) did not take into account the 20% discount for the pleas of guilty and the other mitigating factors. Counsel argued that the primary judge took the 20% discount for the pleas of guilty and the other mitigating factors into account by reducing the proposed individual sentences to the actual individual sentences he imposed. His Honour then made orders for concurrency or cumulacy in relation to the reduced individual sentences and arrived at the total effective sentence of 4 years' immediate imprisonment. According to counsel, the total effective sentence did not infringe the first limb of the totality principle.
Counsel for the respondent did not dispute that his Honour had made the error alleged in ground 2.

The merits of ground 1

The general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. See, for example, The State of Western Australia v Murray.[1]
[1] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [68] ‑ [69], [71] (Buss P, Mazza & Beech JJA).
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen[2] and Nguyen v The Queen.[3]
[2] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[3] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently, or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[4] Johnson v The Queen[5] and Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[4] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[5] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
In the present case, there is no merit in counsel for the respondent's submission that the proposed individual sentences specified by the primary judge did not take into account the mitigating factors and that his Honour took into account the mitigating factors in arriving at the lower individual sentences he actually imposed.
The relevant structure and content of his Honour's sentencing remarks were, in sequence, as follows:
(a)First, his Honour specified the charged offences as pleaded in IND 815 and IND 92 (ts 41 ‑ 42).
(b)Secondly, his Honour noted the respondent's pleas of guilty (ts 42).
(c)Thirdly, his Honour recounted the facts and circumstances of the offending (ts 42 ‑ 47).
(d)Fourthly, his Honour referred to the victim impact statements of EEC and BG (ts 48 ‑ 49).
(e)Fifthly, his Honour referred to various aggravating factors in the offending (ts 50 ‑ 51).
(f)Sixthly, his Honour referred to the mitigating factors including the 20% discount his Honour allowed under s 9AA of the Sentencing Act (ts 51 ‑ 57).
(g)Seventhly, his Honour said (ts 59):
In my view, the only appropriate sentence that can be imposed, given your offending, is a term of imprisonment. I intend to set out the terms of imprisonment that in my view are appropriate for each charge on each indictment before considering questions of whether sentences should be served concurrently or cumulatively and what is called the totality principle.
(h)Eighthly, his Honour specified the proposed individual sentences for each count (ts 59 ‑ 60).
(i)Ninthly, his Honour summarised the totality principle and then applied the totality principle in arriving at the lower individual sentences he actually imposed and making the orders for cumulacy and concurrency (ts 60 ‑ 62).
There is no doubt, having regard to the relevant structure and content of the sentencing remarks, that the primary judge took into account the mitigating factors in formulating the proposed individual sentences before his Honour applied the totality principle.
As we have mentioned, the maximum penalty for aggravated home burglary is 20 years' imprisonment.
In The State of Western Australia v McDonagh,[6] Buss P, Mazza and Mitchell JJA made these observations in relation to sentencing for aggravated home burglary:
[6] The State of Western Australia v McDonagh [2022] WASCA 108 [59] ‑ [63].
In Brindley v The State of Western Australia ([2019] WASCA 153 [39]), 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]).
In Eldridge v The State of Western Australia ([2020] WASCA 66 [63] ‑ [64]), 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.
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 ([2020] WASCA 129 [28] ‑ [29]); The State of Western Australia v Wilkins ([2020] WASCA 149 [67], [76]); Robson v The State of Western Australia ([2020] WASCA 153 [20] ‑ [22]); Panicciari v The State of Western Australia ([2020] WASCA 154 [42] ‑ [44]); and Serukai v The State of Western Australia ([2020] WASCA 159 [44]). 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 ([2021] WASCA 145); Beynon v The State of Western Australia ([2021] WASCA 153); Brooks v The State of Western Australia ([2021] WASCA 156); Jabbie v The State of Western Australia ([2022] WASCA 10); Fernie v The State of Western Australia ([2022] WASCA 20); Herz v The State of Western Australia ([2022] WASCA 73); and 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.
See also Creusot v The State of Western Australia;[7] The State of Western Australia v Krakouer;[8] The State of Western Australia v Billett;[9] and Goddard v The State of Western Australia.[10]
[7] Creusot v The State of Western Australia [2022] WASCA 117.
[8] The State of Western Australia v Krakouer [2022] WASCA 118.
[9] The State of Western Australia v Billett [2022] WASCA 158.
[10] Goddard v The State of Western Australia [2023] WASCA 164.
As we have mentioned, the maximum penalty for aggravated armed robbery is life imprisonment.
In McDonagh [69], Buss P, Mazza and Mitchell JJA made these comments about sentencing for armed robbery:
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 ([2021] WASCA 96); Jabbie; and The State of Western Australia v O'Driscoll ([2022] WASCA 65).
See also The State of Western Australia v Slater.[11]
[11] The State of Western Australia v Slater [2023] WASCA 105.
In the present case, the respondent's offending, considered as a whole, was very serious. In particular, the respondent's offending the subject of the counts in IND 92 was egregious. The gravity of the respondent's offending the subject of the counts in IND 92 is obvious from our earlier account of the facts and circumstances of that offending. In addition to the aggravating factors mentioned by the primary judge, the respondent committed the aggravated robbery against AMT while he was on bail for the other offences.
Denunciation of the respondent's criminality and personal and general deterrence were important sentencing considerations.
There was limited mitigation. The principal mitigating factor was the pleas of guilty. His Honour said that the pleas were indicated 'at a relatively early stage' (ts 55). In making that comment his Honour may have been misled by the prosecutor's use of the word 'expedited' in describing the committal (ts 17). However, the inaccuracy of the prosecutor's use of that word became obvious when the prosecutor observed later at the sentencing hearing that there had been 13 appearances on one indictment and 17 appearances on the other in the Magistrates Court before the respondent entered his pleas of guilty (ts 33 ‑ 34). As to the counts in IND 815, the respondent was charged on 28 October 2021; he did not plead guilty in the Magistrates Court until 13 May 2022; the charges to which he pleaded were those with which he was originally charged; and there was no explanation for the delay in entering his pleas. As to the counts in IND 92, the respondent was charged with counts 1 and 2 on 28 October 2021; he was charged with count 3 on 24 February 2022; he did not plead guilty in the Magistrates Court until 23 January 2023; and there was no explanation for the delay in entering his pleas. In the circumstances, the 20% discount was generous.
The respondent displayed only limited victim empathy and the primary judge found that the respondent's remorse was merely 'limited' (ts 56).
The respondent had a relatively minor prior criminal record, but he could not be regarded as being of previous good character.
The respondent was aged 24 when he committed five of the offences. However, his relative youth when he committed those offences afforded him only modest mitigation.
The respondent's upbringing was, at least in some respects, dysfunctional and he encountered difficulties in his formative years. His Honour found that the respondent had 'taken some positive steps towards rehabilitation' (ts 57) and that he had support from members of his family.
The primary judge's reference to the second limb of the totality principle was misplaced. The second limb had no relevance, in the present case, in arriving at an appropriate total effective sentence.
His Honour's manner of applying the first limb of the totality principle was unconventional. After articulating the proposed individual sentences, his Honour said that the appropriate total effective sentence was 4 years' immediate imprisonment. On that basis, the conventional approach would have been to order that all of the proposed individual sentences be served concurrently. Instead, his Honour reduced all of the proposed individual sentences and, by orders for concurrency and cumulacy, arrived at his Honour's desired outcome.
In our opinion, the total effective sentence of 4 years' immediate imprisonment was not commensurate with the seriousness of the respondent's offending considered as a whole. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the respondent's personal circumstances and antecedents and the mitigating factors), that the length of the total effective sentence was unreasonable or plainly unjust.
We consider that, when the total effective sentence is viewed from the perspective of:
(a)the maximum penalties for the offences;
(b)the facts and circumstances of the offences considered as a whole;
(c)the vulnerability of the complainants;
(d)the general pattern of sentences for the offences in question;
(e)the importance of denunciation and personal and general deterrence; and
(f)all other relevant sentencing factors, including the respondent's personal circumstances and antecedents, the aggravating factors and the mitigating factors,
the total effective sentence was not merely 'lenient' or 'at the lower end of the available range'.
The total effective sentence was substantially less than the sentence that was open to his Honour on a proper exercise of his sentencing discretion.
Ground 1 has been made out.

The merits of ground 2

Counsel for the State's submissions in relation to ground 2 are correct. Ground 2 has been made out.

The State's approach to the appeal

Section 24(1)(a) of the Criminal Appeals Act 2004 (WA) provides, relevantly and in effect, that the State may appeal against 'the sentence imposed [by a judge of a superior court] on a person convicted of [a] charge' of an indictable offence.

In the present case, 'the sentence imposed on [the respondent]', for the purposes of s 24(1)(a), comprised each of the individual sentences for the counts in IND 815, each of the individual sentences for the counts in IND 92 and the total effective sentence. The relevant individual sentences were those actually imposed by the primary judge after he applied the totality principle and not the proposed individual sentences before his Honour considered totality. The relevant total effective sentence was the sentence of 4 years' immediate imprisonment imposed by his Honour after the application of the totality principle and the making of the orders for concurrency or cumulacy.
In the present case, the State challenged the total effective sentence in its grounds of appeal. The State did not, however, challenge in its grounds of appeal any of the individual sentences actually imposed.
Section 41(2) of the Criminal Appeals Act provides, relevantly and in effect, that if under the Act this court:
varies or sets aside a sentence (sentence A), it may vary any other sentence -
(a)that was imposed at or after the time when sentence A was imposed; and
(b)that took into account sentence A.
In the present case, if this court proceeds to allow the appeal and set aside the total effective sentence, s 41(2) will empower this court to vary the individual sentences actually imposed on the respondent in that:
(a)the individual sentences were imposed at the time when the total effective sentence was imposed;
(b)it is apparent from the primary judge's sentencing remarks that he decided upon the total effective sentence of 4 years' imprisonment before he reduced the proposed individual sentences on account of totality and before he made the orders for concurrency and cumulacy; and
(c)consequently, in deciding upon the individual sentences actually imposed his Honour took into account the total effective sentence he had already decided upon.

The residual discretion: should it be exercised?

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[12] and CMB v Attorney‑General (NSW).[13]
[12] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).
[13] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).
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 not to interfere should be exercised.
In the present case, counsel for the respondent sought to rely upon the residual discretion on the basis that:
(a)on 6 October 2023, the primary judge sentenced the respondent to the total effective sentence of 4 years' immediate imprisonment with eligibility for parole;
(b)the total effective sentence was backdated to 12 February 2022; and
(c)this court heard the State's appeal on 16 January 2024,
and accordingly, when the State's appeal was heard, the respondent had nearly completed the non‑parole period of his sentence (appeal ts 30 ‑ 31).
Counsel for the respondent acknowledged, however, at the hearing of the appeal that the respondent would not be released on parole on his earliest eligible release date, namely 12 February 2024, because he needed to complete another course in custody (appeal ts 31). The course was scheduled to begin at about the beginning of February 2024 and would take six months to complete (appeal ts 31 ‑ 32).
In our opinion, the residual discretion should not be exercised on the basis sought to be invoked by counsel for the respondent. The State filed and served its appeal notice promptly after the respondent was sentenced. The State applied for an urgent appeal order. This court granted the application and fixed an early hearing date.
The intervention of this court in the appeal is necessary to maintain adequate standards of sentencing. The total effective sentence was substantially less than the sentence 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 IND 815 and IND 92 requires that the appeal be allowed and the respondent resentenced.

The outcome of the appeal and the resentencing of the respondent

The appeal should be allowed.
The primary judge's sentencing decision, including all of the sentences imposed and the orders for concurrency and cumulacy, should be set aside.
This court has the material necessary to resentence the respondent. Counsel for the respondent put before this court some limited information for the purposes of any resentencing that may occur. In particular, counsel mentioned that the respondent has a partner and a child aged 2. The child was born about four months before the respondent went into custody. The partner and the child visit the respondent each week. The respondent has had 'time away from drugs and alcohol' while he has been in prison. That abstinence, together with courses he has undertaken in prison, has assisted in his rehabilitation (appeal ts 33).
We have discounted each of the head sentences that we would otherwise have imposed by 15%, 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 to reflect the other mitigating factors referred to by the primary judge in his sentencing remarks. We have also taken into account and given credit for the matters referred to at [99] above.
We would exercise the sentencing discretion afresh in relation to IND 815 as follows:
(a)count 1: 2 years 4 months' immediate imprisonment;
(b)count 2: no penalty;
(c)count 3: 20 months' immediate imprisonment.
We have imposed no penalty for count 2 because we have taken into account the stealing of the items in the sentence we have imposed for count 1.
We would exercise the sentencing discretion afresh in relation to IND 92 as follows:
(a)count 1: 2 years 4 months' immediate imprisonment;
(b)count 2: 4 years 10 months' immediate imprisonment;
(c)count 3: 2 years 2 months' immediate imprisonment (reduced from 4 years' immediate imprisonment in the application of the totality principle).
At the hearing of the appeal, counsel for the State accepted that, as pleaded in IND 92, the assault upon EEC and the assault upon BG were part of the subject matter of count 1 and part of the subject matter of count 2 (appeal ts 17). We have taken into account the assault upon EEC and the assault upon BG in resentencing for count 2, but not in resentencing for count 1.
The new sentence for count 3 in IND 92 should be served cumulatively upon the new sentence for count 2 in IND 92. The other new sentences should be concurrently with each other and concurrently with the new sentence for count 2 in IND 92. The new total effective sentence is therefore 7 years' imprisonment. The new total effective

sentence should be backdated to 12 February 2022 to take account of time the respondent has spent in custody solely in relation to the offending in question. A parole eligibility order should be made.

The respondent will be eligible to be considered for release on parole when he has served 5 years in custody calculated from 12 February 2022.

HALL JA:

I agree with Buss P and Mazza JA, for the reasons they give, that this appeal should be allowed and the respondent resentenced. I also agree with the new sentences that their Honours propose. I wish to add some comments of my own regarding the methodology adopted by the learned sentencing judge.
The totality principle is concerned with substance, not form. It does not necessarily require reductions to individual sentences, or orders for concurrency, in every case where an offender commits multiple offences. The objective of the totality principle is to ensure that the total effective sentence is proportionate to the overall criminality of all of the offending. The principle assumes a process by which appropriate sentences for each of the individual offences are first determined. Those sentences should then only be reduced or made concurrent to the extent necessary to ensure that the total effective sentence is not disproportionate. The process should guide the outcome.
In this case, the sentencing judge determined what he considered to be the appropriate total sentence and then adjusted the individual sentences to achieve that result. Rather than the process guiding the outcome, the predetermined outcome dictated the structure of the sentences. In some respects, this would not matter if the outcome was an appropriate one. But here it was not. The value in following the conventional approach is that, by guiding the outcome, it reduces the risk of error occurring in the exercise of sentencing discretion. There will be less potential for a total sentence that is inconsistent with sentencing standards.
The offending in this case involved several discrete incidents. In those circumstances, some degree of cumulacy was called for. The sentencing judge appears to have appreciated that, but in order to achieve the desired outcome, he reduced each of the individual

sentences to a very significant degree. This gave the appearance that additional punishment was imposed for each discrete incident, but produced individual sentences that no longer bore any real relationship to their seriousness and a total effective sentence that was not merely lenient, but plainly inadequate.

Sentencing is a discretionary decision, but it is not at large. The criminal justice system strives for consistency in sentencing as an aspect of the fairness of that system. Sentences are not merely the product of the view of the offending taken by an individual judge. The discretion must be exercised having regard to the standards set in other comparable cases. If it were not so, there would be a danger of idiosyncratic and inequitable outcomes. This would result in a system that was unfair. Public confidence in the system would be diminished. Comparison of cases involving multiple offences is often difficult because of the range of variables. It may be hard to find a case that has the same number or nature of offences. This is another reason why the process I have referred to has much to commend it. By determining the appropriate individual sentences and then only adjusting those sentences or making them concurrent to the extent necessary to ensure that the outcome is not disproportionate to the offending, there is less likelihood that the end result will be unjust.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
15 MARCH 2024