The State of Western Australia v Tulloch
[2025] WASCA 17
•29 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TULLOCH [2025] WASCA 17
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 19 DECEMBER 2024
DELIVERED : 29 JANUARY 2025
FILE NO/S: CACR 7 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DAMIEN LEE TULLOCH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MIOCEVICH DCJ
File Number : IND 822 of 2023
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted of six counts including possession of methylamphetamine with intent to sell or supply it to another (count 1) and with intent to harm doing an act as a result of which the life, health or safety of the victim was, or was likely to be, endangered (count 5) - Pleas of guilty - Sentence of 12 months' immediate imprisonment for count 1 and sentence of 4 years 6 months' immediate imprisonment for count 5 - Total effective sentence of 5 years 6 months' imprisonment - Whether it was open to sentencing judge to conclude respondent had pleaded guilty, or had indicated he would plead guilty, to counts 1, 2 and 4 at first reasonable opportunity - Whether sentences for counts 1 and 5 manifestly inadequate - Whether total effective sentence infringed first limb of totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 68E, s 304(2), s 417(1)
Firearms Act 1973 (WA), s 19(1), s 19(1ac)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a), s 34(1)(aa)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Sentencing judge's sentencing decision set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | J C Whalley SC |
| Respondent | : | Z A V Gilders |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | ZG Criminal Law |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
Cheeseman v The State of Western Australia [2023] WASCA 78
Chikonga v The State of Western Australia [2017] WASCA 34
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Dinh v The State of Western Australia [2019] WASCA 167
Donaldson v The State of Western Australia [2018] WASCA 143
Gallagher v The State of Western Australia [2019] WASCA 108
Gleeson v The State of Western Australia [2019] WASCA 100
Gobetti v The State of Western Australia [2017] WASCA 130
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Haasy v The State of Western Australia [2010] WASCA 207
Italiano v The State of Western Australia [2020] WASCA 115
Jolly v The State of Western Australia [2017] WASCA 181
Kaokula v The State of Western Australia [2016] WASCA 198
Kirkup v The State of Western Australia [2018] WASCA 102
Leckie v The State of Western Australia [2018] WASCA 91
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
Lovell v The State of Western Australia [2019] WASCA 169
Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99
McAlpine v The State of Western Australia [2018] WASCA 195
Miller v Byrne [2016] WASC 236
Mrsa v The State of Western Australia [2018] WASCA 217
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pearman v The State of Western Australia [2021] WASCA 106
Penny v The State of Western Australia [2016] WASCA 52
Phan v The State of Western Australia [2019] WASCA 131
Potaka v The State of Western Australia [2017] WASCA 98
Quirk v The State of Western Australia [2019] WASCA 76
Rinaldi v The State of Western Australia [2017] WASCA 48
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
SCN v The State of Western Australia [2017] WASCA 138
Sophiadakis v The State of Western Australia [2016] WASCA 203
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v MGT [2024] WASCA 136
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
The State of Western Australia v Popal [2020] WASCA 200
Thomas v The State of Western Australia [2014] WASCA 202
Ugle v The State of Western Australia [2018] WASCA 16
Wade v The State of Western Australia [2022] WASCA 68
Wilson v The State of Western Australia [2025] WASCA 8
JUDGMENT OF THE COURT:
This is a State appeal against sentence.
The respondent was convicted, on his pleas of guilty, of six counts in an indictment.
Count 1 alleged, in essence, that on 2 December 2021, at Noranda, the respondent had in his possession methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 34(1)(aa) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 alleged, in essence, that on the same date and at the same place as in count 1, the respondent had in his possession $610 cash that is reasonably suspected to have been stolen or otherwise unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).
Count 3 alleged, in essence, that on the same date and at the same place as in count 1, the respondent was in possession of a Western Australian driver's licence in the name of another person that is reasonably suspected to have been stolen or otherwise unlawfully obtained, contrary to s 417(1) of the Code.
Count 4 alleged, in essence, that on the same date and at the same place as in count 1, the respondent, without lawful excuse, had ready access simultaneously both to an offensive weapon (namely a tomahawk) and a prohibited drug (namely methylamphetamine) when not authorised under the MD Act to be in possession of that drug, contrary to s 68E of the Code.
Count 5 alleged, in essence, that on 9 February 2022, at Dianella, the respondent, with intent to harm, did an act, as a result of which the life, health or safety of JS was, or was likely to be, endangered, contrary to s 304(2) of the Code.
Count 6 alleged, in essence, that on the same date and at the same place as in count 5, the respondent was in possession of a firearm, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, and that the firearm had been altered from the design or characteristics of its original manufacture, contrary to s 19(1) read with s 19(1ac) of the Firearms Act.
The maximum penalty for the counts in the indictment are these:
(a)count 1: 25 years' imprisonment or a fine of $100,000 or both;
(b)count 2: 7 years' imprisonment;
(c)count 3: 7 years' imprisonment;
(d)count 4: 5 years' imprisonment;
(e)count 5: 20 years' imprisonment; and
(f)count 6: 7 years' imprisonment.
On 11 January 2024, Miocevich DCJ imposed terms of immediate imprisonment as follows:
(a)count 1: 12 months;
(b)count 2: 4 months;
(c)count 3: 1 month;
(d)count 4: 4 months;
(e)count 5: 4 years 6 months; and
(f)count 6: 4 months.
His Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 5 and that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 5. The total effective sentence was therefore 5 years 6 months' imprisonment. His Honour backdated the total effective sentence to 10 February 2022 to take account of time the respondent had spent in custody in respect of the offences. A parole eligibility order was made.
The State relies upon four grounds of appeal.
Ground 1 alleges, in essence, that the sentence of 4 years 6 months' immediate imprisonment for count 5 was manifestly inadequate.
Ground 2 alleges, in essence, that the sentencing judge erred in fact or law by reducing the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act 1995 (WA)) for each of counts 1, 2 and 4 by 25%, pursuant to s 9AA, when it was not open for his Honour to conclude that the respondent had pleaded guilty, or had indicated that he would plead guilty, to those offences at the first reasonable opportunity.
Ground 3 alleges, in essence, that the sentence of 12 months' immediate imprisonment for count 1 was manifestly inadequate.
Ground 4 alleges, in essence, that the total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle.
On 17 April 2024, Buss P granted leave to appeal.
In our opinion, each of the grounds of appeal has been made out. There is no basis for invoking the residual discretion. The appeal must be allowed and the sentencing judge's sentencing decision (including the sentences imposed and the orders for cumulacy and concurrency) set aside. This court has the material necessary to resentence the respondent according to law.
The facts and circumstances of the offending
At about 9.00 am on 2 December 2021, the respondent was at residential premises in Noranda. At the time, police were observing the premises. The respondent entered a motor vehicle parked on the driveway of the premises. He started the vehicle and reversed it down the driveway to the road. A police vehicle accelerated heavily towards the respondent's vehicle. As police approached, the respondent saw the police and drove back up the driveway. Police alighted from their vehicle to speak with the respondent. However, he ignored calls by police to stop and attempted to enter the house via the garage. He was apprehended and later arrested for having no authority to drive, having never held and being disqualified from holding an authority to drive.
Police searched the respondent and his vehicle. A clipseal bag containing 5.69 g of methylamphetamine, with a purity of 70%, was found in a container on the seat of the vehicle. Another clipseal bag containing about 8.5 g of methylamphetamine, with a purity of 0.3%, was found in the glove box of the vehicle. A further clipseal bag containing about 0.29 g of methylamphetamine was found in the driver door pocket adjacent to where the respondent had been sitting. The total weight of the methylamphetamine was 14.48 g (count 1).
Police also found in the respondent's possession:
(a)$610 cash (count 2);
(b)a WA driver's licence in the name of another person (which that other person had lost about two weeks previously) on which the respondent had laminated his own photograph over that of the other person (count 3);
(c)a large tomahawk in the rear passenger footwell of the respondent's vehicle at the same time as the police found the methylamphetamine (count 4); and
(d)a set of electronic scales, clipseal bags and three mobile telephones.
The respondent refused to comply with a requirement of police that he provide the PIN numbers for the mobile telephones.
The respondent and JS (the victim in count 5) had known each other for more than 10 years.
Late on 8 February 2022, the respondent and JS spoke by telephone regarding an ongoing feud between them that had existed for some time. During the feud it was alleged that JS had made threats to the respondent and his family.
JS and a witness were in company with each other in a motor vehicle. They discussed previous issues and tensions involving JS and the respondent. JS and the witness stopped their vehicle at an address in Morley. The witness entered the house to use the bathroom. JS remained in the vehicle. When the witness returned he used a mobile telephone to make a call via Snapchat to the respondent. The call was made by speaker so that JS was able to hear the conversation. The respondent was angry at JS and, on hearing JS's voice, the respondent threatened him and said he intended to 'kick his head in'. During the conversation, the respondent indicated that he was aware of their location. After the conversation, the respondent departed from his house with his younger brother. Each of them was riding a motorcycle. They rode towards the location of JS and the witness.
Shortly after midnight, JS and the witness drove away in their vehicle to avoid a confrontation with the respondent. The respondent and his younger brother saw JS and the witness as they were riding their motorcycles. The respondent and his younger brother performed a U-turn and pursued JS and the witness.
At about 12.20 am on 9 February 2022, JS and the witness stopped their vehicle outside residential premises in Dianella. The respondent parked his motorcycle near the right‑hand front wheel of the vehicle and his younger brother parked his motorcycle towards the rear of the vehicle.
After the respondent and his younger brother dismounted from their motorcycles, the respondent produced a firearm which had been shortened to make it concealable. He had never held a firearm licence (count 6). Police have not recovered the firearm.
The respondent and his younger brother walked to the passenger side of the vehicle. They endeavoured to open the front door while JS endeavoured to hold it shut. The respondent and his younger brother forced the door open and they began assaulting JS. They punched and kicked JS while he sat defensively in the front passenger seat of the vehicle. During the assault JS attempted to apologise to the respondent for the previous issues and tensions between them. After a short period, the respondent stopped assaulting JS, but his younger brother continued the attack. The witness, who was in the driver's seat of the vehicle, intervened by saying words to the effect of 'that's enough' and 'leave'. The assault on JS ended. JS closed the door to the vehicle. During the incident, and while holding the firearm, the respondent had threatened to use the firearm on JS.
Next, the respondent walked around the front of the vehicle to the driver's side door. He pointed the barrel of the firearm through the open window and discharged a single round. The bullet passed through JS's upper right arm. Fragments of the bullet then entered JS's upper chest area. The respondent and his younger brother mounted their motorcycles and rode away.
JS's blood spurted from his wound onto the witness. The witness called the emergency services. The witness performed first aid on JS before driving him to the vicinity of the Morley Police Station. JS was then conveyed by ambulance to Royal Perth Hospital where he was treated. The treatment involved the exploration and washing out of the gunshot wounds to JS's right arm and chest. A bullet fragment was recovered from his wounds. Later, JS underwent occupational therapy and physiotherapy. The medical opinion was that had JS not received medical treatment, his injuries were of such a nature as to endanger or be likely to endanger his life because of the significant bleeding he had suffered. Ballistic testing on the bullet fragment indicated that the bullet was fired from a .22 calibre long rifle.
On 10 February 2022, the respondent was arrested. He was originally charged with attempted murder. The respondent declined to participate in an electronically recorded interview.
When he committed counts 5 and 6 the respondent was on bail for counts 1, 2, 3 and 4.
The sentencing judge's sentencing remarks and the respondent's personal circumstances and antecedents
The sentencing judge recounted the facts and circumstances of the offending in his sentencing remarks.
His Honour observed that when the respondent offended against JS they had known each other for more than 10 years. The respondent asserted that JS had made threats towards the respondent's family. However, his Honour said that a report dated 7 January 2024 from Helen Fowler, a clinical psychologist, indicated that the threats were made many months before the offending and in the context of JS believing that the respondent had slept with his girlfriend and was giving her drugs. The respondent accepted that he had been giving the girlfriend drugs, but claimed that he had not slept with her. His Honour found that there was no suggestion, apart from one factor, that the threats made by JS were imminent or even recent. JS apologised to the respondent on the night in question. However, his Honour did accept that JS had driven past the respondent's home twice on that night, and that this behaviour had 'triggered a response' from the respondent (ts 39).
The sentencing judge made this assessment of the respondent's offending against JS (ts 41):
You may not have intended to shoot him initially, however, you did arm yourself with a loaded firearm and used it on a person who you had just forced their car to pull over. You assaulted him whilst he was apologising and not fighting back, and then what appears to be a gratuitous act on your part, after it had actually all finished and you were just about to leave, you shot him, effectively, as far as I can see, just to teach him a lesson. The offence is further aggravated as you were on bail at the time.
So this was a serious act of violence involving the use of a loaded firearm. The injuries were not of such a nature as to [be] likely [to] cause permanent injury to health, however, they were of such a nature as to be likely to endanger life.
His Honour mentioned a victim impact statement dated 13 July 2023 from JS. His Honour summarised the statement as follows (ts 40 ‑ 41):
Since the incident occurred, my life has been significantly affected. I suffered nerve damage and have been left with tingling which can frequently trigger panic attacks. My relationships have been affected, as I disassociate from those around me. I've become isolated and paranoid, telling people I've moved away to Melbourne from fear of further attacks. I find myself hypervigilant at home and outside, especially hearing loud noises caused by motorcycles or other vehicles.
I experience difficulty getting to and remaining asleep due to the nightmares. The impact of the incident meant I had to have two months off work, which as a casual employee meant I suffered significant loss of earnings and incurred debts. I frequently experience loss of appetite and observed an increase in my use of alcohol as a coping mechanism, as I learn to cope with the trauma of the incident.
The sentencing judge referred to the respondent's personal circumstances and antecedents. The respondent was aged 26 at the time of the offending and was aged 28 when sentenced. His upbringing was difficult. At the age of about 4 or 5 he was diagnosed with and medicated for attention‑deficit hyperactivity disorder. When he was aged 9 to 10 he was assessed by the Bentley Hospital Mental Health Unit as having 'severe conduct disorder and oppositional defiance disorder' (ts 42). Both of the respondent's parents inflicted physical violence upon him when he was a child. His father was often drunk and at times there was no food in the house. At an early age the respondent resorted to alcohol and illicit drugs. He began using alcohol and cannabis at the age of 8. He used cannabis every day from the age of 10 or 11. He began using methylamphetamine at the age of 13 or 14 and smoked the drug on most days from the age of about 14. The respondent struggled at school. He kept relapsing into drug use and antisocial behaviour.
When he was sentenced the respondent had a domestic partner. She was not a drug user and was supportive of him. The partner gave birth to the respondent's daughter in June 2022 while he was in custody. The respondent had voluntarily engaged in a parenting course. His Honour said that, given the respondent's deprived upbringing, his participation in the parenting course showed 'considerable insight … if [the respondent is] genuine in relation to the importance of children being brought up in a loving and caring environment' (ts 42).
The information before the sentencing judge included a report dated 18 December 2023 from The Whitehaven Clinic and Ms Fowler's report. His Honour referred to the reports in his sentencing remarks.
The report from The Whitehaven Clinic stated that the respondent had voluntarily completed 14 one‑on‑one counselling sessions as part of an addiction recovery process programme. The programme focussed on addressing the underlying root cause of the respondent's drug addiction. The programme also focussed on the respondent rebuilding a life without drugs by incorporating a holistic approach to recovery and identifying key areas of his life that needed to be addressed. The author of the report was of the opinion that the respondent had shown he was capable of changing his future direction should he choose to do so. The respondent had 'reflected at length on his past actions and gained considerable insight into why he does what he does'. He is aware of 'his psychologically based fears and triggers and understands the benefits of staying emotionally and mentally healthy'. The author said that she had seen 'excellent progress in [the respondent's] growth and capacity for change'.
Ms Fowler determined that the respondent meets the criteria for antisocial personality disorder. He is also likely to meet the criteria for traumatic childhood events, given his description of his father's behaviour and the family environment in which he was raised. Ms Fowler said that the respondent did not, however, present as suffering from any major mental illness.
Ms Fowler said that, based upon information provided by the respondent and his mother, the respondent used substances during critical early periods in his neurological, emotional and psychological development. The respondent exhibited 'challenging behaviours' as a child. He was not modelled, either directly or indirectly, on 'how to manage his emotions, deal with delayed gratification, problem solve functionally, or live with an absence of some form of legal or illegal substance in his system'. His early challenging behaviours evolved into the respondent engaging in offending behaviour and substance use.
Ms Fowler was of the opinion that the respondent offended against JS because the respondent 'sought to change his feelings, from powerless to powerful, which led him to use the gun on [JS]'. Ms Fowler considered that the respondent's risk of reoffending in general was significant given his offending history. His risk of reoffending in a violent manner will be linked to the individuals and subculture he connects with upon his release from custody, especially if he resumes the lifestyle he had before being arrested for the current offending. Ms Fowler said that the respondent requires consistent forensic psychological treatment to assist him to manage his significant risk of relapsing into drug use and an antisocial lifestyle upon release from custody.
Defence counsel recorded in his written sentencing submissions that the respondent completed school during year 10. He has no tertiary or trade qualifications. The respondent has worked intermittently as a bricklayer. He was unemployed when he committed the offences in question.
The respondent has a significant prior criminal record. His previous convictions as an adult include numerous traffic offences including reckless driving; criminal damage or destruction of property (multiple offences); receiving stolen property; stealing a motor vehicle (multiple offences); breach of a community based order (multiple offences); breach of a family violence restraining order (multiple offences); breach of bail; possession of a controlled weapon; breach of a suspended imprisonment order; possession of drug paraphernalia (multiple offences); and common assault.
As to the timing of the respondent's pleas of guilty on counts 1, 2 and 4:
(a)The offending the subject of counts 1, 2, 3 and 4 occurred on 2 December 2021, and the respondent was charged with those offences on that day or the following day.
(b)The offending the subject of counts 5 and 6 occurred on 9 February 2022, and was unrelated to the offending on counts 1, 2, 3 and 4.
(c)The respondent was initially charged with the offence of attempted murder in relation to the criminal conduct the subject of count 5. After negotiations with the State, the charge of attempted murder was withdrawn and the charge the subject of count 5 was substituted.
(d)The respondent did not enter pleas of guilty to any of the counts until 10 May 2023, more than 17 months after his first appearance on counts 1, 2, 3 and 4, and at the ninth committal mention.
(e)His Honour said that the respondent entered the pleas of guilty 'as soon as the charge [the subject of count 5] was altered' (ts 43).
As we have mentioned, the sentencing judge reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) for each of counts 1, 2 and 4 (as well as for each of the other counts) by 25%, pursuant to s 9AA. His Honour's reasons for allowing that discount were as follows (ts 43 ‑ 44):
You were originally charged with attempted murder for the offence on 9 February 2022. All matters went to committal in the Magistrates Court. As a result of negotiations with the Director of Public Prosecutions, I understand that the murder charge was discontinued for a plea to the assault with intent charge.
You pleaded guilty on 10 May 2023. As I understand it, you pleaded as soon as the charge was altered. As a consequence of your pleas, the State secured convictions against you and a trial's not required. Further, the victim's not required to come to court and give evidence.
It might be considered it was a strong case against you, … but this court regularly sees people with strong cases. In some cases, you'd think it's inevitable for it to be a conviction even where it's recorded the offences and people still plead not guilty. You haven't done that so the court gives full weight to that.
Also, you had these other drug charges following along your attempted murder trial. Given the charge you were facing at the time, it seems to me just as a matter of practical common sense that you would wait until that charge was dealt with before you decided to do whatever you were going to do with the drug charges.
So taking all those matters into account, I will in fact allow a full discount of 25 per cent from the head sentence I would otherwise have imposed had you been found guilty of the offences after the trial and there were no mitigating factors.
His Honour then said the respondent's pleas of guilty indicated remorse, but the remorse was limited 'given the different explanations … for the offending in the reports and also [the respondent's] attitude in February 2022 that if [he was] going to get out, [he was] going to seek revenge on [JS]' (ts 44).
The sentencing judge found that the respondent had demonstrated insight into the wrongfulness of his offending conduct and that he had already taken some actions to address the causes of his offending behaviour. There were a number of factors which indicated the respondent had a degree of stability in his life at the time of sentencing; in particular, his supportive partner and his young child. His Honour was of the view that the evidence before him suggested that the respondent had 'prospects of successfully continuing with [his] rehabilitation' and, despite his lengthy criminal record, the respondent represented 'a low risk of reoffending' (ts 44). His Honour said that 'on balance' he was prepared to take the respondent's willingness to change and rehabilitate himself into account by way of mitigation. His Honour also accepted that the respondent was affected by a childhood environment in which the abuse of alcohol and drugs was common and in which he was exposed to violence and 'profound … deprivation' (ts 45).
The organisation of the balance of these reasons
It is convenient, first, to consider ground 2, next ground 1, then ground 3 and finally ground 4.
Ground 2: counsel for the State's submissions
Counsel for the State submitted that the sentencing judge erred by affording the respondent the maximum discount of 25%, pursuant to s 9AA of the Sentencing Act, for his pleas of guilty on counts 1, 2 and 4.
At the sentencing hearing before his Honour:
(a)Defence counsel asserted in his written submissions that the charged offences in counts 1, 2, 3 and 4 were 'effectively in abeyance' until negotiations between the State and the respondent in relation to the charge for the offending conduct the subject of count 5 were resolved. Defence counsel submitted that the maximum discount should be granted for the plea of guilty in relation to count 5 and that a 'significant discount' should be afforded for the pleas of guilty on the other counts.
(b)Defence counsel conceded in his oral submissions that the pleas of guilty on counts 1, 2, 3 and 4 were not made 'at the first reasonable opportunity'. Defence counsel submitted that the pleas on those counts were nevertheless 'at an early stage' and that a 'significant discount' should be granted (ts 15).
(c)The prosecutor submitted that the pleas of guilty on counts 1, 2, 3 and 4 could be regarded as 'entered at an early opportunity but certainly not at the earliest opportunity' (ts 26). The prosecutor noted that the offences charged in counts 1, 2, 3 and 4 were 'entirely separate' from the offence charged in count 5 and that pleas of guilty to counts 1, 2, 3 and 4 could have been entered at any time before the negotiations on count 5 were resolved (ts 26).
After defence counsel and the prosecutor made those submissions, the sentencing judge said to the prosecutor (ts 27):
I think you've got a murder charge outstanding. It's fully understandable. You're going to deal with that first before you do anything with the drug charge[s], so at this stage given there were pleas after that was resolved, I take it, at the first reasonable opportunity. But I understand your submission.
The prosecutor responded that the State 'certainly [does not] accept' that the pleas on counts 1, 2, 3 and 4 were entered at the first reasonable opportunity. The prosecutor added that she '[took the sentencing judge's] point as to [his Honour's] view as to the timing of the plea', and did not seek 'to press that any further' (ts 27).
Counsel for the State submitted that the prosecutor's statements in response to the sentencing judge were not a concession that the pleas on counts 1, 2, 3 and 4 were entered at the first reasonable opportunity. Rather, the prosecutor merely indicated that the State adhered to its submissions on the point, and did not intend to repeat those submissions which his Honour had said he understood.
Counsel noted that in his sentencing remarks his Honour observed that 'it seems to me just as a matter of practical common sense that [the respondent] would wait until [the attempted murder charge] was dealt with before [the respondent] decided to do whatever [he was] going to do with the drug charges' (ts 43). His Honour then allowed the maximum discount of 25% for all of the counts.
Counsel for the State submitted that the sentencing judge had no power under s 9AA to grant the maximum discount of 25% unless the pleas of guilty were entered or indicated at the first reasonable opportunity. No question of discretion arises. It was always open to the respondent to plead guilty or to indicate unconditionally a willingness to plead guilty to counts 1, 2 and 4 after he was charged. Any strategic advantage to the respondent in delaying his pleas on those counts while he pursued negotiations on other counts did not make his delay reasonable.
Accordingly, so it was submitted, his Honour erred in law in affording the respondent the maximum discount of 25% for his pleas of guilty on counts 1, 2 and 4. Further, his Honour ordered that the individual sentence for count 1 be served cumulatively upon the individual sentence for count 5. The discount of 25% on count 1 therefore had a material effect upon the total effective sentence.
Ground 2: counsel for the respondent's submissions
Counsel for the respondent submitted that, notwithstanding defence counsel's concession at the sentencing hearing that the pleas of guilty on counts 1, 2, 3 and 4 were not made at the first reasonable opportunity, it was a matter of discretion for his Honour to determine whether those pleas were made at the first reasonable opportunity. His Honour was not bound by defence counsel's concession.
It was submitted that his Honour was clearly satisfied that the pleas of guilty on counts 1, 2, 3 and 4 were made at the first reasonable opportunity. It was also submitted that it was open to his Honour, having regard to the facts and circumstances of the case, to grant the maximum discount of 25% for all of the counts. No error had been demonstrated.
Counsel for the respondent argued, in the alternative, that even if the sentencing judge had made an error as alleged in ground 2, the sentences for counts 3 and 4 were ordered to be served concurrently, and consequently the error on those counts would not have made any material difference to the sentencing outcome. Although the individual sentence for count 1 was ordered to be served cumulatively upon the individual sentence for count 5, the error would only be material to the sentencing outcome if this court considered that the total effective sentence infringed the first limb of the totality principle.
Ground 2: its merits
Recently, in Wilson v The State of Western Australia,[1] Buss P and Mazza JA considered the proper construction and application of s 9AA of the Sentencing Act. It is convenient to reproduce at [64] ‑ [86] below part of what their Honours wrote in Wilson.
[1] Wilson v The State of Western Australia [2025] WASCA 8.
Section 9AA was inserted by s 4 of the Sentencing Amendment Act 2012 (WA). It commenced on 20 December 2012.
Section 9AA of the Sentencing Act provides:
(1)In this section —
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if —
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) —
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea', enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA. See Abraham v The State of Western Australia.[2]
[2] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [52] (Buss JA; McLure P agreeing).
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by those matters. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors or criteria relating to the offender that are subjective to the offender. See Abraham [53].
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%.
However, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'. The making or the indication of a plea of guilty at 'the first reasonable opportunity' enlivens the power to grant the maximum discount. If the power is enlivened, the sentencing judge is not bound to give a 25% discount. The sentencing judge's discretion is informed by the considerations specified in s 9AA(2). See Thomas v The State of Western Australia.[3] The phrase 'the first reasonable opportunity' in s 9AA is not defined in the Sentencing Act.
[3] Thomas v The State of Western Australia [2014] WASCA 202 [18] (McLure P; Mazza JA agreeing).
Rossi v The State of Western Australia[4] is the leading authority on the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA.
[4] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.
The salient facts of Rossi, for present purposes, were these. The appellant pleaded guilty to six counts in Indictment 790 of 2013 (Indictment 790). Between 17 October 2012 and 19 December 2012, police lawfully intercepted a mobile telecommunication service which belonged to and was used by the appellant. The counts in Indictment 790 were established by the intercepted material. Count 3 involved the sale of methylamphetamine. The other counts involved offers to sell methylamphetamine. The statement of material facts served on the appellant set out the precise times and dates on which each offence was committed.
On 11 February 2013, the appellant in Rossi was charged in the Perth Magistrates Court with the offences which became the subject of Indictment 790. On 28 June 2013, after the fourth or fifth disclosure/committal hearing, the appellant entered pleas of guilty to the offences in Indictment 790. He was committed to the District Court for sentence.
The sentencing judge in Rossi indicated that he had reduced the 'head sentence', as defined in s 9AA(1), for each offence by 12.5%, being one half of the maximum allowed under s 9AA, in recognition of the appellant's pleas of guilty.
The appellant in Rossi appealed against the sentences imposed by the sentencing judge. He relied on two grounds of appeal. The ground that is relevant, for present purposes, alleged that the sentencing judge erred in law by failing to give a sufficient discount, pursuant to s 9AA, for the appellant's pleas of guilty to the offences charged in Indictment 790.
Counsel for the appellant in Rossi alleged, relevantly for present purposes, that:
(a)the sentencing judge made an error of fact in failing to find that the appellant's pleas of guilty were entered at 'the first reasonable opportunity'; and
(b)the discount of 12.5% given by the sentencing judge was manifestly inadequate.
Counsel for the appellant in Rossi submitted in relation to the phrase 'the first reasonable opportunity' in s 9AA that:
(a)the appellant had entered his pleas of guilty to the 'offer to sell' charges at the first reasonable opportunity; and
(b)on the facts of the case, the first reasonable opportunity was 'a reasonable time after the supply by the State of the covert listening product on which the charges were based, which information was necessary to enable the appellant's legal representative to advise in relation to the appellant's plea to the charges' [28].
In Rossi, McLure P (with whose reasons Mazza JA and Hall J agreed) noted that the opportunities to plead guilty to a charge for an offence are governed by the Criminal Procedure Act 2004 (WA). After examining the statutory scheme embodied in the Criminal Procedure Act, her Honour concluded that 'the first opportunity for an accused to plead guilty to a charge for an indictable offence is after s 39(a) ‑ (c) of [the Criminal Procedure Act] has been complied with' [52]. Her Honour added that '[t]hat is what is known as a "fast‑track" plea' [52].
Significantly, her Honour then said [53]:
However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.
McLure P accepted two submissions made by counsel for the appellant about the relationship between s 9AA and the Criminal Procedure Act. First, 'often, but not in every case, the first reasonable opportunity for an accused person to plead guilty will be after the statutory requirements in s 35(4), (5), (6), (11) and (12), where applicable, [of the Criminal Procedure Act] have been satisfied' [68]. Secondly, 'that would not be the case if the reason for not pleading guilty at an earlier stage, and the related loss of relevant benefits under s 9AA, is due to the conduct of the State' [68].
However, her Honour did not accept other submissions made by counsel for the appellant [69] ‑ [70]:
The appellant's third proposition is that the legislature has recognised in (relevantly) s 39 of the [Criminal Procedure Act] that before an accused person enters a plea to an offence with which they have been charged they are entitled to know and understand the charge in the prosecution notice (notice), to have had time to consider the notice and to seek legal advice about it, and to be advised of the relevant procedures that may be invoked as a consequence of being charged. That is a fair summary of s 39 which addresses the subjective circumstances of the accused at the time of the hearing. However, the criterion of 'first reasonable opportunity' is objective. An accused cannot sit back and fail to take the necessary steps to put himself in a position to plead.
The appellant also contends that where an accused does not know that they are guilty of the offence charged because they do not know the facts that make up every element of the offence, it cannot be concluded mechanically, if the accused pleaded guilty at a later stage in the proceedings, that the plea was not entered at the first reasonable opportunity. This statement is too broad. It depends on what is meant by knowledge and the reason for the claimed lack of knowledge. (emphasis added)
Next, McLure P dealt with the submission of counsel for the appellant that the appellant had pleaded guilty at 'the first reasonable opportunity' [71] ‑ [76]:
The appellant claims it was reasonable for the appellant not to plead guilty before obtaining disclosure of the recorded telephone calls alleged to contain the offers the subject of the charges in Indictment 790 because the statement of material facts contained very little detail of the factual basis of the offences and only briefly summarised the effect of the telephone calls rather than set out what was actually said. Further the telephone calls relied on were amongst a number of telephone calls intercepted over the course of around two months.
The appellant also claims that it is irrelevant that the appellant may have been able to obtain copies of the recordings from police earlier in the proceedings, as police were not obliged to provide disclosure unless he elected to proceed to a committal hearing. I do not accept this submission. A failure to request access to the recordings is relevant, as is any failure to respond to, or refusal of, the request. There was no evidence that, prior to disclosure under the [Criminal Procedure Act], a request was made on behalf of the appellant of the investigating police or the DPP to listen to the records.
The appellant contends that this is not a case in which it can be concluded that disclosure of the recordings was sought to ascertain the strength of the prosecution case or that he held back pleading as a bargaining chip in plea negotiations.
At his sentencing, the appellant bore the onus of establishing matters of mitigation on the balance of probabilities. He fell well short of establishing that he entered pleas of guilty to the charges in Indictment 790 at the earliest reasonable opportunity.
The written and oral submissions put on behalf of the appellant at sentencing did not state with any precision or clarity that the appellant's delay in pleading guilty was because he did not know the facts that made up the elements of the offences the subject of Indictment 790. Such a submission would have been met with bewilderment, the appellant having been the principal (and sole) offender who must have had actual knowledge of all the material (and other) facts of his offending. At its very highest, any issue could only be one of recollection of detail.
Based on all the material before the sentencing judge, the compelling inference is that disclosure of the recordings was sought before entering a plea to any of the charges in order to ascertain the strength of the prosecution case. … It is on the strength of the prosecution case that the appellant may have required legal advice. (emphasis added)
Her Honour expressed her conclusions as follows [77]:
(a)The appellant pleaded guilty at the fourth or fifth disclosure/committal hearing.
(b)The sentencing judge did not err by failing to make a finding that the appellant's pleas of guilty to the counts in Indictment 790 were entered at the first reasonable opportunity.
(c)The appellant's pleas of guilty were not entered at the first reasonable opportunity.
McLure P then referred to counsel for the appellant's submission that the discount under s 9AA for the offences the subject of Indictment 790 should have been significantly higher than 12.5% [78]. Her Honour rejected that submission. Her Honour held that it could not be said that a discount of 12.5% for the offences the subject of Indictment 790 was at, or towards, the lower end of the discretionary range [82]. There was certainly no foundation for the claim that the discount was manifestly inadequate [82].
The reasons of McLure P in Rossi concerning the proper construction and effect of the phrase 'the first reasonable opportunity' in s 9AA have been referred to with approval in numerous decisions of this court. See, for example, Thomas [15]; Marshall v The State of Western Australia;[5] LJH v The State of Western Australia;[6] Rinaldi v The State of Western Australia;[7] Gobetti v The State of Western Australia;[8] SCN v The State of Western Australia;[9] Jolly v The State of Western Australia;[10] Brewerton v The State of Western Australia.[11]
[5] Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [41] (Martin CJ; Hall J agreeing).
[6] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355 [45] (Martin CJ).
[7] Rinaldi v The State of Western Australia [2017] WASCA 48 [35] (Mazza & Mitchell JJA & Beech J).
[8] Gobetti v The State of Western Australia [2017] WASCA 130 [68] (Mazza JA & Hall J).
[9] SCN v The State of Western Australia [2017] WASCA 138 [90] (Buss P, Beech JA & Hall J).
[10] Jolly v The State of Western Australia [2017] WASCA 181 [26] (Buss P & Mazza JA).
[11] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176 [48] (Martin CJ, Mazza & Mitchell JJA).
In the present case:
(a)The prosecutor asserted at the sentencing hearing before the sentencing judge that the pleas of guilty on, relevantly, counts 1, 2 and 4 were not made at the first reasonable opportunity. The prosecutor did not, on a fair reading of the transcript, concede later at the sentencing hearing that the pleas on those counts were entered at the first reasonable opportunity. In particular, the prosecutor's response to his Honour's assertion in argument that the pleas were entered at the first reasonable opportunity was not a concession. Counsel for the State's submission on this issue is correct. See [54] ‑ [56] above.
(b)Defence counsel conceded at the sentencing hearing before his Honour that the pleas of guilty on, relevantly, counts 1, 2 and 4 were not made at the first reasonable opportunity. As we will explain, that concession was properly made.
The sentencing judge concluded that the pleas of guilty on counts 1, 2 and 4 were entered at the first reasonable opportunity based on his Honour's opinion that 'as a matter of practical common sense … [the respondent] would wait until [the attempted murder] charge was dealt with before [he] decided to do whatever [he was] going to do with the drug charges' (ts 43).
We are satisfied, for the following reasons, that his Honour's conclusion that the pleas of guilty on those counts were entered at the first reasonable opportunity was erroneous.
First, the offending the subject of counts 1, 2 and 4 occurred on 2 December 2021. The respondent was charged with those offences on that day or the following day. However, the respondent did not enter pleas of guilty or indicate that pleas of guilty would be entered on counts 1, 2 and 4 until 10 May 2023. That date was more than 17 months after the respondent's first appearance on counts 1, 2 and 4 and at the ninth committal mention. Secondly, the offending the subject of counts 5 and 6 occurred on 9 February 2022 and that offending was unrelated to the offending on counts 1, 2 and 4. Thirdly, as at 2 February 2022, the respondent knew all of the factual elements of counts 2 and 4. He was present on 2 December 2021 when police searched his vehicle and found the $610 cash and the tomahawk. The respondent knew the source of the $610 cash. The respondent knew the purpose for which he possessed the tomahawk. Accordingly, the respondent's delay in pleading guilty to counts 2 and 4 was not attributable to any absence of knowledge of the facts that comprised the elements of those offences. Fourthly, the respondent was present on 2 December 2021 when police searched his vehicle and found the methylamphetamine. At the hearing of the appeal, counsel for the respondent acknowledged that the certificate of analysis in respect of the drug was produced to the respondent or his lawyers about 5 months before he entered the plea of guilty to count 1. By virtue of s 11(a) of the MD Act, the respondent was deemed to have possession of the methylamphetamine with intent to sell or supply it to another unless he proved the contrary on the balance of probabilities. So, the respondent knew all of the factual elements of count 1 for at least about five months before he entered the plea of guilty on that count. Fifthly, at the sentencing hearing before the sentencing judge, defence counsel's explanation for the delay was that counts 1, 2 and 4 were 'effectively in abeyance' until negotiations between the State and the respondent in relation to the attempted murder charge were completed. In our opinion, on an objective appraisal of the facts and circumstances, it was not reasonable, for the purposes of s 9AA, for the respondent not to enter or indicate pleas of guilty on those counts while he pursued negotiations with the State on the attempted murder charge. Sixthly, his Honour's reference to the respondent waiting 'as a matter of practical common sense' until the attempted murder charge was dealt with before he decided whether to enter or indicate pleas of guilty was an extraneous consideration in determining whether the pleas on counts 1, 2 and 4 were entered at the first reasonable opportunity. The criterion of 'first reasonable opportunity' within s 9AA is objective. His Honour's invocation of 'practical common sense', as a justification for the respondent's decision to put counts 1, 2 and 4 'in abeyance', fails to engage with the text of s 9AA; in particular, with the objective character of the concept of 'first reasonable opportunity'. It also fails to engage with the public interest that underpins s 9AA; namely, encouraging and rewarding the entry or indication of pleas of guilty as early as reasonably possible. Seventhly, the respondent was not entitled to sit back and fail to take the necessary steps to enter or indicate pleas of guilty on counts 1, 2 and 4, while he pursued negotiations with the State on the attempted murder charge, without compromising his ability to claim the maximum discount of 25% pursuant to s 9AA.
The entry or the indication of a plea of guilty at the first reasonable opportunity, within s 9AA, enlivens a sentencing judge's power to grant the maximum discount of 25%. See Thomas [18]. In other words, the entry or indication of a plea of guilty at the first reasonable opportunity is a condition for the exercise of the power to grant the maximum discount. See Miller v Byrne.[12] A sentencing judge does not have a discretion to grant the maximum discount of 25% unless the plea has been entered or indicated at the first reasonable opportunity.
[12] Miller v Byrne [2016] WASC 236 [41] (Allanson J).
Ground 2 has been made out.
Ground 1: counsel for the State's submissions
Counsel for the State referred to previous decisions of this court in relation to sentences imposed for offences contrary to s 304(2) of the Code; in particular, to Penny v The State of Western Australia;[13] The State of Western Australia v Popal;[14] Cheeseman v The State of Western Australia.[15] It was submitted that there are no directly comparable cases to the respondent's offending on count 5.
[13] Penny v The State of Western Australia [2016] WASCA 52.
[14] The State of Western Australia v Popal [2020] WASCA 200.
[15] Cheeseman v The State of Western Australia [2023] WASCA 78.
Counsel argued that the respondent deliberately shot JS with an illegal firearm at close range. He caused life endangering injuries. At the time of the offending the respondent was on bail for serious drug offending. The potential for significantly more serious harm, including the death of JS, is obvious. The sentence of 4 years 6 months' immediate imprisonment for count 5 was manifestly inadequate given the seriousness of the offending and the respondent's personal circumstances and antecedents.
Ground 1: counsel for the respondent's submissions
Counsel for the respondent submitted that, while the discharge of a firearm with intent to harm another person is very serious, there were significant mitigating factors in the present case that militated in favour of a sentence towards the lower end of a sound exercise of the sentencing discretion. Counsel accepted that the sentence of 4 years 6 months' immediate imprisonment for count 5 was 'at the low end of what would be considered to be an appropriate range of sentencing', but the sentencing outcome was not 'so low as to manifest error'.
Ground 1: its merits
The applicable principles where the State asserts that a sentence is manifestly inadequate and relevant general sentencing principles are set out in TheState of Western Australia v Hussian.[16]
[16] TheState of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [97] (Buss P, Mazza & Beech JJA).
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the adequacy or inadequacy of a sentence. See Munda v The State of Western Australia;[17] The State of Western Australia v Doyle;[18] McAlpine v The State of Western Australia.[19]
[17] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[18] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[19] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
The maximum penalty for the offence charged in count 5 is 20 years' imprisonment.
Factors relevant in determining the appropriate sentence for an offence contrary to s 304(2) of the Code include:
(a)the nature and seriousness of the offender's intent to harm;
(b)the nature and seriousness of the offender's act which resulted in the victim's injuries;
(c)the nature and seriousness of the bodily harm caused to the particular victim, or the severity and other circumstances of the actual or likely endangering of the particular victim's life, health or safety, as the case may be; and
(d)the potential (as distinct from the actual) consequences of the offender's conduct.
See Kaokula v The State of Western Australia.[20]
[20] Kaokula v The State of Western Australia [2016] WASCA 198 [63] (Mazza & Mitchell JJA & Beech J).
There is no sentencing tariff for offences contrary to s 304(2) of the Code because of the wide variety of circumstances in which the offences are committed and the wide variety of personal circumstances and antecedents of the offenders who commit them. See Popal [74]; Cheeseman [84]. A wide range of sentences has been imposed for offences of this kind. See Quirk v The State of Western Australia.[21]
[21] Quirk v The State of Western Australia [2019] WASCA 76 [57] (Buss P, Mitchell & Pritchard JJA).
We have had regard to a number of decisions of this court in sentencing appeals concerning offending contrary to s 304(2) of the Code including Penny; Sophiadakis v The State of Western Australia;[22] Kaokula; Chikonga v The State of Western Australia;[23] Ugle v The State of Western Australia;[24] Quirk; Gleeson v The State of Western Australia;[25] Popal; Cheeseman. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in those cases. None of them is truly comparable with the current offending.
[22] Sophiadakis v The State of Western Australia [2016] WASCA 203.
[23] Chikonga v The State of Western Australia [2017] WASCA 34.
[24] Ugle v The State of Western Australia [2018] WASCA 16.
[25] Gleeson v The State of Western Australia [2019] WASCA 100.
In the present case, the very serious character of the respondent's offending on count 5 is apparent from our summary of the facts and circumstances of the offending and the sentencing judge's sentencing remarks.
It is necessary, in determining whether the respondent's sentence for count 5 was manifestly inadequate, to consider, amongst other things, the nature and seriousness of the respondent's intent to harm; the nature and seriousness of the respondent's act which resulted in JS's injuries; the nature and seriousness of JS's injuries; and the potential (as distinct from the actual) consequences of the respondent's conduct.
Although the respondent may not have intended to shoot JS when the incident began, he had armed himself with a loaded firearm and shot JS after the assault upon JS had ended. The respondent intended that JS should be struck by the bullet. His Honour found that the respondent's motive was to teach JS a lesson. The respondent shot JS because he had a grievance against him arising from their pre‑existing feud. The respondent's act was a form of vigilantism and a gratuitous act of violence.
The respondent discharged the firearm at close range. The photographs in the State brief reveal an entry wound to the outside of JS's upper right arm; an exit wound from the inside of his upper right arm; and a further entry wound to his chest between the right nipple and the armpit. The respondent indicated in a recorded conversation, while he was on remand in custody, that the firearm was not accurate (ts 30).
The injuries suffered by JS were towards the lower end of seriousness on the spectrum of injuries likely to be inflicted by a bullet discharged from a firearm at close range. However, the respondent admitted by his plea of guilty, as was the fact, that as a result of his act, JS's life, health or safety was, or was likely to be, endangered. If JS had not received medical treatment, his injuries were of such a nature as to endanger or be likely to endanger his life because of the significant bleeding he had suffered.
The discharge of the firearm at close range, in the context of a firearm that was inaccurate, demonstrated that the respondent's act had the potential to result in more serious injuries for JS than in fact occurred. The risk to JS included the possibility of a permanent physical disability or even death. The location of the entry wounds on JS's body also indicated the potential for JS to have suffered more serious injuries than he did.
After the respondent shot JS, he fled the scene. He made no effort to secure medical treatment for JS.
The respondent was in company when he committed count 5. The circumstances of the commission of the offence would have been frightening for JS. The respondent was not youthful for sentencing purposes. Although his prior criminal record did not aggravate the current offending, his previous convictions showed that he was not a person of prior good character and underscored the importance of personal deterrence. The respondent committed count 5 while he was on bail for counts 1, 2, 3 and 4.
There were some mitigating factors. The respondent pleaded guilty. There was some limited remorse. The respondent had evinced insight into the wrongfulness of his conduct and had taken some actions to address the causes of his offending behaviour. The sentencing judge was prepared, on balance, to take the respondent's willingness to change and rehabilitate himself into account by way of mitigation. The respondent experienced a childhood in which abuse of alcohol and drugs was common and he was exposed to violence. His Honour found that, during his childhood, the respondent experienced 'profound … deprivation' (ts 45).
In our opinion, the sentence of 4 years 6 months' immediate imprisonment for count 5 was not commensurate with the seriousness of the respondent's offending. 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 sentence was unreasonable or plainly unjust.
When the sentence for count 5 is viewed from the perspective of:
(a)the maximum penalty for the offence;
(b)the facts and circumstances of the offence;
(c)the vulnerability of JS;
(d)the general pattern of sentences for the offence 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,
we consider that the sentence was not merely 'lenient' or 'at the lower end of the available range'.
The sentence for count 5 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.
Ground 3: counsel for the State's submissions
Counsel for the State referred to previous decisions of this court in relation to sentences imposed for offences contrary to s 6(1)(a) of the MD Act; in particular, to Potaka v The State of Western Australia;[26] Lovell v The State of Western Australia;[27] Italiano v The State of Western Australia;[28] Pearman v The State of Western Australia.[29]
[26] Potaka v The State of Western Australia [2017] WASCA 98.
[27] Lovell v The State of Western Australia [2019] WASCA 169.
[28] Italiano v The State of Western Australia [2020] WASCA 115.
[29] Pearman v The State of Western Australia [2021] WASCA 106.
Counsel noted that the sentence of 12 months' immediate imprisonment imposed on the respondent for count 1 had not been reduced in the exercise of the totality principle. Counsel also noted that the methylamphetamine had been found in the respondent's vehicle together with a large tomahawk, a set of electronic scales, clipseal bags and three mobile telephones. The respondent refused to provide police with the PIN numbers for the mobile telephones.
Counsel acknowledged that 8.5 g of the total of 14.5 g of methylamphetamine had a very low purity, namely 0.3%. However, the very low purity of the 8.5 g had to be viewed in the context of the respondent's involvement at the time in commercial drug dealing. At the sentencing hearing, defence counsel ultimately characterised the respondent as an 'upper low‑level user‑dealer for profit' (ts 15 ‑ 16). The sentencing judge accepted this characterisation and found that the respondent 'sold drugs to support the lifestyle [he was] in at the time' (ts 38).
It was submitted that, having regard to the maximum penalty, the standards of sentencing customarily observed, the seriousness of the offending and the respondent's personal circumstances and antecedents, the sentence of 12 months' immediate imprisonment for count 1 was unreasonable or plainly unjust. It was also submitted that if ground 2 is made out in relation to count 1, then his Honour's error in affording the respondent the maximum discount of 25% for his plea of guilty on that count reinforces the conclusion that the sentence of 12 months' immediate imprisonment is manifestly inadequate.
Ground 3: counsel for the respondent's submissions
Counsel for the respondent emphasised that 8.5 g of the methylamphetamine had a purity of 0.3%, which indicated that the 8.5 g was 'a cutting agent contaminated with methylamphetamine'. Consequently, so it was submitted, the weight of the methylamphetamine that would have been sold or supplied to another was 5.98 g. Counsel acknowledged that this matter had not been raised at the sentencing hearing.
In any event, it was submitted that in the circumstances it was appropriate for the sentence for count 1 to be reduced 'for totality purposes', having regard to the sentence imposed for count 5.
Ground 3: its merits
The maximum penalty for the offence charged in count 1 is 25 years' imprisonment or a fine of $100,000 or both.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
We have had regard to the sentencing dispositions in a range of cases including Haasy v The State of Western Australia;[30] Potaka; Leckie v The State of Western Australia;[31] Kirkup v The State of Western Australia;[32] Donaldson v The State of Western Australia;[33] Mrsa v The State of Western Australia;[34] Gallagher v The State of Western Australia;[35] Phan v The State of Western Australia;[36] Dinh v The State of Western Australia;[37] Lovell; Italiano; Pearman; Wade v The State of Western Australia.[38] It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in those cases. There are some facts and circumstances that are comparable to the current offending but there are also some material differences.
[30] Haasy v The State of Western Australia [2010] WASCA 207.
[31] Leckie v The State of Western Australia [2018] WASCA 91.
[32] Kirkup v The State of Western Australia [2018] WASCA 102.
[33] Donaldson v The State of Western Australia [2018] WASCA 143.
[34] Mrsa v The State of Western Australia [2018] WASCA 217.
[35] Gallagher v The State of Western Australia [2019] WASCA 108.
[36] Phan v The State of Western Australia [2019] WASCA 131.
[37] Dinh v The State of Western Australia [2019] WASCA 167.
[38] Wade v The State of Western Australia [2022] WASCA 68.
In the present case, the respondent's offending on count 1 was serious. The respondent was a dealer as well as a user of methylamphetamine. He was selling the drug for commercial gain. Defence counsel characterised the respondent as an 'upper low‑level user‑dealer for profit' (ts 15 ‑ 16). The sentencing judge said that the respondent was 'a user/dealer [who] sold drugs to support the lifestyle [he was] in' at the time (ts 38). When he was arrested the respondent was in possession of a number of items associated with drug dealing; in particular, the $610 cash; a weapon (the large tomahawk); a set of electronic scales; clipseal bags and three mobile telephones. The respondent refused to provide police with the PIN numbers for the mobile telephones. Although 8.5 g of the methylamphetamine had a very low purity, namely 0.3%, it was reasonably possible, if not likely, that it would have been used as a cutting agent in respect of the balance of the methylamphetamine, which had a significantly greater purity. The presence of the 8.5 g was consistent with the respondent's status as a dealer (as well as a user) of methylamphetamine who was selling the drug for commercial gain.
In Italiano [53], Buss P, Mazza and Beech JJA observed:
Dealers in methylamphetamine who are also addicted to the drug are not treated more leniently merely because the motive for their dealing is wholly or in part the need for money to finance their addiction. The possession of methylamphetamine with intent to sell or supply for the purpose of financing an addiction or reducing a drug debt is not mitigatory. It still involves selling or supplying a prohibited drug for a commercial purpose. See Chu v The State of Western Australia ([2012] WASCA 135 [33] (Mazza JA; Buss JA agreeing)).
As we have mentioned, in the context of considering count 5:
(a)The respondent was not youthful for sentencing purposes and he had a prior criminal record. See [109] above.
(b)There were, however, some mitigating factors. See [110] above.
It is not apparent, on a fair reading of his Honour's sentencing remarks as a whole, that his Honour reduced the sentence for count 1 in the application of the totality principle.
In our opinion, the sentence of 12 months' immediate imprisonment for count 1 is not broadly consistent with the pattern of sentencing revealed by previous decisions of this court with at least some features comparable to the facts and circumstances of the respondent's offending and his personal circumstances and antecedents.
In our opinion, the sentence of 12 months' immediate imprisonment for count 1 was not commensurate with the seriousness of the respondent's offending. We are satisfied, having regard to all the 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 sentence was unreasonable or plainly unjust. The sentence was not merely 'lenient' or 'at the lower end of the available range'. The sentence was substantially less than the sentence that was open to the sentencing judge on a proper exercise of the sentencing discretion.
Ground 3 has been made out.
Ground 4: counsel for the State's submissions
Counsel for the State reiterated the State's submissions on grounds 1 and 3. It was submitted that the individual sentences for counts 1 and 5 were manifestly inadequate, and accordingly were an imperfect foundation for the sentencing judge's order that those sentences be accumulated. Counsel submitted that the total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle in that the sentence failed properly to reflect the overall criminality of the offending conduct.
Ground 4: counsel for the respondent's submissions
Counsel for the respondent acknowledged that the total effective sentence of 5 years 6 months' imprisonment 'fell towards the lower end of the range that would be considered appropriate having regard to all relevant factors'.
However, counsel emphasised the following:
(a)the respondent was involved in a low‑level commercial drug dealing operation to finance his own drug addiction;
(b)the respondent committed a serious act of violence with the firearm, but the offending was not premeditated, JS's injury was treated adequately and there was no evidence of any long‑term physical injury;
(c)the respondent's ability to perceive the likely consequences of his choices was significantly compromised (if present at all);
(d)the serious act of violence arose from a sense of powerlessness;
(e)the respondent suffered significant deprivation as a child;
(f)the respondent showed insight into the factors that underpinned his offending behaviour and he had engaged voluntarily in a drug rehabilitation programme;
(g)the respondent had some limited remorse; and
(h)the respondent had pleaded guilty.
It was submitted that the facts and circumstances of the respondent's overall offending, including the mitigating factors, were such that an overall sentence 'at the very lowest end of the range of sentences appropriate for such offending' was within the range of a sound exercise of the sentencing discretion.
Ground 4: its merits
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.[39]
[39] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [68] ‑ [69], [71] (Buss P, Mazza & Beech JJA).
We have already recounted in detail the facts and circumstances of the respondent's offending on each of the counts in the indictment, the sentencing judge's sentencing remarks and the respondent's personal circumstances and antecedents.
Further, we have already decided that the individual sentences for counts 1 and 5 were manifestly inadequate.
In our opinion, the total effective sentence of 5 years 6 months' 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.
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 offending on counts 1, 2, 3 and 4 being separate and distinct from the offending on counts 5 and 6;
(d)the vulnerability of JS;
(e)the general pattern of sentences for the offences in question;
(f)the importance of denunciation and personal and general deterrence; and
(g)all other relevant sentencing factors, including the respondent's personal circumstances and antecedents, the aggravating factors and the mitigating factors,
we consider that 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 the sentencing discretion.
Ground 4 has been made out.
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[40] and CMB v Attorney‑General (NSW).[41]
[40] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).
[41] 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 2004 (WA) not to interfere should be exercised.
Counsel for the respondent submitted that this court should exercise the residual discretion having regard to the following:
(a)Since 11 January 2024, when he was sentenced by the sentencing judge, the respondent has been classified as a maximum security prisoner and held at Hakea Prison.
(b)The filing of the State's appeal has resulted in the Magistrates Court deferring finalisation of a number of summary charges to which the respondent has pleaded guilty. The summary charges will not be dealt with until the outcome of the State's appeal is known. The pending summary charges preclude a review of the respondent's maximum security rating.
(c)In any event, the respondent's maximum security rating will not be reviewed until the outcome of the State's appeal is known.
(d)The respondent's ability to 'further his rehabilitation by way of programmes beyond that of Whitehaven' and his opportunity to have 'a meaningful relationship and bond with his child' are hindered by his placement at Hakea Prison 'given the ongoing operational constraints which impact visitations, education and recreation[al] opportunities' within Hakea Prison.
(e)Pursuant to the sentences and orders made by his Honour, the respondent will become eligible for parole on 10 August 2025 and allowing the State's appeal would be 'a hindrance to his rehabilitation' (appeal ts 14).
Similar matters to those raised by counsel for the respondent were considered by this court in The State of Western Australia v MGT.[42]
[42] The State of Western Australia v MGT [2024] WASCA 136 [91] ‑ [95] (Buss P, Mazza JA & Dalton AJA).
In the present case, counsel for the State did not dispute the facts and circumstances alleged by counsel for the respondent, as set out at [144] above, but counsel for the State submitted that those facts and circumstances did not justify this court exercising the residual discretion.
In our opinion, the matters raised by counsel for the respondent do not provide a sufficient basis, either individually or collectively, for invoking the residual discretion. As we have mentioned, the individual sentences imposed by his Honour for counts 1 and 5 and the total effective sentence were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been clearly established. This court's intervention is necessary to ensure that proper sentencing standards are maintained for the relevant offences.
The outcome of the appeal and the resentencing of the respondent
We would allow the appeal.
The sentencing judge's sentencing decision, including the sentences imposed by his Honour and the orders for cumulacy and concurrency, should be set aside. However, the violence restraining order, the forfeiture order and the orders for destruction of the methylamphetamine, the tomahawk and other items made by his Honour should be not disturbed.
This court has the material necessary to resentence the respondent.
At the hearing of the appeal, counsel for the respondent informed the court about the progress the respondent had made towards his rehabilitation since his original sentencing.
We have taken into account, in exercising the sentencing discretion afresh, all of the information that was before his Honour; the respondent's loss of the chance, while the State appeal has been pending, of his security rating being lowered from maximum security; the progress the respondent has made in his rehabilitation since he was sentenced by his Honour; and the submissions on resentencing made by counsel for the State and counsel for the respondent.
We would allow a discount of 15%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each of counts 1, 2 and 4, on account of the pleas of guilty. The discounts of 25% allowed by his Honour, pursuant to s 9AA, for the pleas of guilty on counts 3, 5 and 6 were not challenged by the State in the appeal. We would allow those discounts in resentencing.
We would also reduce the sentences we would otherwise have imposed for counts 1, 2, 4 and 5 to reflect the other mitigating factors mentioned by his Honour.
We would further reduce the sentences we would otherwise have imposed for counts 1, 2, 4 and 5 to recognise the respondent's loss of the chance, while the State appeal has been pending, of his security rating being lowered from maximum security and to recognise the progress the respondent has made in his rehabilitation since he was sentenced by his Honour.
The individual sentences imposed by his Honour for counts 3 and 6 were not challenged by the State in the appeal. Those sentences should stand.
We have taken into account and reduced the total effective sentence we would otherwise have imposed to reflect the mitigating factors mentioned by his Honour and the additional mitigation mentioned in these reasons.
We would exercise the sentencing discretion afresh by imposing individual sentences of immediate imprisonment as follows:
(a)count 1: 2 years 2 months;
(b)count 2: 6 months;
(c)count 3: 1 month;
(d)count 4: 6 months;
(e)count 5: 6 years 2 months; and
(f)count 6: 4 months.
We consider that the appropriate new total effective sentence is 7 years 6 months' imprisonment. We would achieve that outcome by reducing the new sentence for count 1 from 2 years 2 months' imprisonment to 1 year 4 months' imprisonment and by ordering that the reduced new sentence for count 1 be served cumulatively upon the new sentence for count 5. The other new sentences should be served concurrently with each other and concurrently with the new sentence for count 5. The new total effective sentence of 7 years 6 months' imprisonment should be backdated to 10 February 2022 to take account of all of the time the respondent has spent in custody in respect of the offences.
The respondent should remain eligible for parole. He will be eligible to be considered for release on parole when he has served 5 years 6 months in custody calculated from 10 February 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TCG
Associate to the Honourable President Buss
29 JANUARY 2025
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