The State of Western Australia v Wilkins - [2020] WASCA 149

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WILKINS [2020] WASCA 149
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   17 JUNE & 17 JULY 2020
DELIVERED          :   9 SEPTEMBER 2020
FILE NO/S:   CACR 56 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JOEL LAURENCE WILKINS
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DAVIS DCJ
File Number            :   IND 2460 of 2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of aggravated home burglary and attempted aggravated armed robbery - Manifest inadequacy - Totality principle

Criminal law - Backdating of sentence - Respondent not in lawful custody - When fixed term of imprisonment does not elapse - Proper construction of s 8(3) of the Sentence Administration Act2003 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4), s 41(1)(a), s 41(3)(c)
Criminal Code (WA), s 392, s 401(2)(a), s 552(2)(a)
Sentence Administration Act 2003 (WA), s 3, s 4, s 5, s 6(1), s 8(3)
Sentencing Act 1995 (WA), s 11(1), s 37, s 87(1)(d), pt 13

Result:

Leave to appeal granted on grounds 1 and 2
Leave to appeal refused on grounds 3 and 4
Appeal allowed
Sentencing decision of the primary judge set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC (17 June 2020); Mr B M Murray (17 July 2020)
Respondent	:	Mr B W Standish

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	In person

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Brindley v The State of Western Australia [2019] WASCA 153
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Eldridge v The State of Western Australia [2020] WASCA 66
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1
Humphreys v The State of Western Australia [2017] WASCA 208
Jolly v The State of Western Australia [2017] WASCA 181
Law v The Queen [2019] WASCA 81
Mamkin v The State of Western Australia [2017] WASCA 61
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Richards [2020] WASCA 129
YDN v The State of Western Australia [2018] WASCA 62

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was convicted, on his pleas of guilty before Davis DCJ, of two counts in an indictment.
Count 1 alleged that on 14 March 2019, at Lynwood, the respondent, while in the place of Grant Pattullo without his consent, committed the offence of attempted aggravated armed robbery, and 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 2 alleged that on the same date and at the same place, the respondent attempted to steal from Mr Pattullo, with violence, a motor vehicle, the property of Mr Pattullo, and that the respondent was armed with a dangerous weapon (namely a tomahawk) and that Mr Pattullo was of or over the age of 60 years, contrary to s 392 read with s 552(2)(a) of the Code.
On 2 April 2020, the sentencing judge sentenced the respondent on each count to a term of 11 months' imprisonment, conditionally suspended for 18 months. The terms of conditionally suspended imprisonment were ordered to be served concurrently.
When he was sentenced, the respondent had spent 386 days in custody on remand, since his arrest on 14 March 2019, solely in respect of counts 1 and 2.
The State relies upon four grounds of appeal.
Ground 1 alleges that the sentences imposed for counts 1 and 2 were manifestly inadequate both as to type and length.
Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
Ground 3 alleges, in essence, that the sentencing judge erred in finding that, as a consequence of the COVID‑19 pandemic, some rehabilitation programmes within the prison system had been withdrawn or suspended.
Ground 4 alleges, in essence, that, further and alternatively to ground 3, her Honour erred by having regard to an irrelevant consideration in imposing sentence, namely that, as a consequence of the COVID‑19 pandemic, some rehabilitation programmes within the prison system had been cancelled or suspended.
On 17 June 2020, at the conclusion of the hearing of the appeal, the court allowed the State's appeal, set aside the sentencing judge's sentencing decision and resentenced the respondent. The court made orders as follows:
1.Leave to appeal on grounds 1 and 2 granted.
2.Leave to appeal on grounds 3 and 4 refused.
3.Appeal allowed.
4.The sentencing decision of the primary judge is set aside.
5.The respondent is resentenced on indictment IND 2460 of 2019 as follows:
(a)on count 1, to a sentence of 3 years 3 months' immediate imprisonment; and
(b) on count 2, no penalty is imposed.
6.The new sentence of 3 years 3 months' immediate imprisonment is to be taken to have taken effect on 28 May 2019.
7.The respondent is eligible for parole.
At the conclusion of the hearing on 17 June 2020, the court indicated that it would publish reasons at a later date.
The respondent failed to surrender himself into custody on 17 June 2020. A warrant for his arrest was issued.
On 17 July 2020, the court held a further hearing to determine whether the court could and should correct the backdating in order 6 of the orders made on 17 June 2020, in that the date stipulated in order 6, namely 28 May 2019, was calculated on the basis that the respondent would surrender himself into custody on 17 June 2020.
At the conclusion of the hearing on 17 July 2020, the court reserved its decision.
On 20 July 2020, the respondent was arrested and taken into custody.
In our opinion, it is unnecessary for the court to correct the backdating in order 6.
These are our reasons for making the orders made on 17 June 2020 and for deciding that it is unnecessary to correct the backdating.

The facts and circumstances of the offending

The facts and circumstances of the offending, as alleged by the State, were not in dispute before the sentencing judge or this court.
The respondent was a neighbour of the victim and his wife.
At about 4.15 pm on 14 March 2019, the respondent knocked on the front door of the victim's home. The victim's wife answered the door. The respondent asked to speak with a man in the house. The victim's wife called out for her husband. The respondent entered the victim's home, without invitation, through the front door. The victim's wife told the respondent to leave and wait outside. The respondent ignored the victim's wife and walked into the dining room.
The victim, a man aged 61, entered the dining room and confronted the respondent. The respondent demanded that the victim give the respondent the victim's car keys. The victim refused and told the respondent to leave the house. The respondent did not move. The victim again told the respondent to leave the house and pushed him towards the front door.
The respondent resisted being pushed towards the front door. He reached under his t-shirt and produced a tomahawk that was about 12 to 14 inches in length. The respondent brandished the tomahawk in his right hand above his head and said repeatedly, 'I don’t want to hurt you'.
The victim grabbed a dining chair and held it in front of him. The victim used the legs of the chair to push the respondent towards the front door. The respondent swung the tomahawk towards the victim. The victim was not struck by the tomahawk. The respondent then swung the tomahawk towards the victim again. The victim grabbed the tomahawk. A struggle ensued for the control of the tomahawk. During the struggle, the victim suffered several cuts and bruises on his arms and hands as well as general soreness and stiffness to his body.
Eventually, the victim was able to obtain control of the tomahawk. He pushed the respondent forcefully out of the house. The respondent continued to resist as he was forced along the driveway.
The respondent then walked about 15 to 18 feet from the victim. However, he then returned and confronted the victim. The respondent shouted angrily. 'I'm Aboriginal. This is my land.' The victim pushed the respondent away. The respondent then left the vicinity. Police arrived shortly afterwards and arrested the respondent.
The statement of material facts, as read aloud by the prosecutor at the sentencing hearing, omitted reference to the involvement of the victim's son, aged 20, in assisting the victim to overcome and remove the respondent from the victim's home. However, at the sentencing hearing, defence counsel accepted that the victim's son had been involved in the altercation with the respondent. During the struggle for control of the tomahawk, the victim's son struck the respondent on the head with a hat stand.

The sentencing judge's sentencing remarks

The sentencing judge incorporated by reference into her sentencing remarks the facts and circumstances of the offending (ts 20).
Her Honour said that the offending was not a 'home invasion'. Her Honour explained that '[t]here [was not] any forced entry, there was no rushing into the house and immediately assaulting the occupants of the home or the victim in particular and [the respondent was] acting really quite strangely'. That was because the respondent was under the influence of both alcohol and methylamphetamine at the time. However, the fact that the respondent had taken illicit drugs and had consumed alcohol to excess was not mitigating (ts 20).
The sentencing judge identified a number of aggravating features of the offending. First, the offending involved an invasion of the privacy and safety of the victim and his family in their own home. Secondly, the respondent armed himself with a tomahawk before he committed the offending. Thirdly, to the extent that this differed from the first factor and went beyond the elements of the offence, the respondent entered the victim's home without consent. Fourthly, the respondent was told repeatedly to leave the home and refused. Fifthly, the respondent wielded and swung the tomahawk at the victim who was endeavouring to remove the respondent from the house. Sixthly, during the struggle the respondent caused bodily harm to the victim (ts 21).
Her Honour noted that the victim was aged 61 at the time of the offending. He sustained some cuts and bruising on his arms as well as general soreness and stiffness to his body (ts 21).
The sentencing judge referred to some mitigating factors. First, the respondent had pleaded guilty and had not minimised or endeavoured to justify what he had done. Secondly, the respondent was genuinely remorseful. Thirdly, the respondent had a traumatic childhood. He suffered physical and emotional abuse. His education was limited. He began using cannabis at the age of 12 and by his mid‑teenage years he had begun drinking alcohol heavily. The respondent then progressed to more serious illicit drugs. At the age of 18, he began using methylamphetamine (ts 22 ‑ 23).
Her Honour recounted that after he left school the respondent worked as a cook for a few months and at a liquor store for about 2 years. He then 'straightened [his] life out' and worked as a mentor and case manager for juvenile offenders (ts 23).
However, the respondent's traumatic circumstances resumed. He lost several friends to suicide. His maternal grandmother died when he was aged 19 and he was admitted to hospital for 3 months after suffering drug induced psychosis at the age of 20 (ts 23).
Subsequently, the respondent was diagnosed with depression. He took prescribed antidepressant and antipsychotic medication for about a year, with some benefit. When he was aged 21, the respondent was charged with and later convicted of the unlawful wounding of his brother. When he was charged the respondent endeavoured to commit suicide by overdosing on illicit drugs (ts 23).
When the respondent was aged 24, another close family member committed suicide. The respondent relapsed into illicit drug use; in particular, methylamphetamine abuse (ts 23).
The sentencing judge commented that the respondent had a prior criminal record. He had previous convictions for possessing an article with intent to injure or disable; disorderly behaviour in a public place; assaulting a public officer; unlawful wounding of his brother; breach of an intensive supervision order; obstructing public officers; and traffic offences (ts 24).
Her Honour noted that the respondent had been in custody on remand since 14 March 2019. While in custody, the respondent had undertaken peer support work within the prison (ts 24).
The sentencing judge decided that terms of imprisonment should be imposed on the respondent. However, her Honour decided that the terms of imprisonment should be suspended (ts 25).
Her Honour gave the following reasons for her decision to suspend the terms of imprisonment. First, the respondent's early pleas of guilty. Secondly, the respondent's genuine remorse and his expression of some sympathy for the victim. Thirdly, although the respondent was aged 25 at the time of the offending and 26 when sentenced, he was still 'relatively young'. Fourthly, the respondent had a traumatic upbringing and a dysfunctional and deprived childhood. Fifthly, the respondent had mental health issues; in particular, depression and anxiety. Sixthly, the respondent was willing to undergo programmes to address the reasons for his offending and to cease consuming alcohol and using illicit drugs. Seventhly, the period of 386 days that the respondent had spent in custody on remand. Finally, 'issues which [had] affected prisons and prisoners as a result of the COVID-19 pandemic' including the cancellation of prison visits and the withdrawal or suspension of some programmes (ts 25 ‑ 26).
The sentencing judge recorded that she had allowed the respondent a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his plea of guilty on each of counts 1 and 2 (ts 26).
Her Honour said that the appropriate sentence for each count was 2 years' imprisonment. Her Honour then reduced each of those terms by 13 months to reflect the time the respondent had spent in custody on remand. Her Honour therefore imposed a term of 11 months' imprisonment on each count. Her Honour ordered that the individual sentences be served concurrently. Consequently, the total effective sentence was 11 months' imprisonment. Her Honour then indicated that the terms of imprisonment would be suspended conditionally for a period of 18 months. Her Honour imposed a supervision requirement and a programme requirement (ts 26 ‑ 27).

The State's submissions

As to ground 1, counsel for the State submitted that the respondent had served almost 13 months (386 days) on remand prior to being sentenced. If the term of 11 months' imprisonment imposed by the sentencing judge had been ordered to be served immediately, without backdating, then the sentence imposed for each count would have been akin to 2 years' imprisonment.
It was submitted that her Honour's decision to suspend the terms of imprisonment on each of the two counts (both of which were extremely serious) revealed implied error. The sentences were manifestly inadequate as to type.
It was also submitted that even when the time the respondent had served on remand prior to being sentenced was properly taken into account, the length of the terms of imprisonment on each of the two counts was manifestly inadequate.
As to ground 2, counsel for the State submitted that the sentencing judge's failure to accumulate 'the two (erroneously) lenient individual sentences' resulted in a total effective sentence which did not properly reflect the totality of the respondent's criminal conduct.
It is unnecessary to summarise counsel for the State's submissions in relation to grounds 3 and 4.

The respondent's submissions

As to ground 1, counsel for the respondent argued that there were a number of mitigating factors which the sentencing judge properly took into account in fixing the length of the terms of imprisonment and deciding to suspend the terms. In particular, the respondent had entered early pleas of guilty (which attracted a 25% discount); the respondent's expression of genuine remorse and sympathy for the victim; the respondent's relative youth; the respondent's traumatic upbringing and dysfunctional and deprived childhood; the respondent's mental health issues; the respondent's willingness to participate in programmes to address his drug and alcohol issues; the time the respondent had spent in custody on remand; and the issues affecting prisoners and prisons arising from the COVID-19 pandemic.
It was submitted that the individual sentences were not, in the circumstances, manifestly inadequate either as to type or as to length.
As to ground 2, counsel for the respondent argued that although the two counts involved different elements, the fact that the two counts arose out of the one incident and that each of the counts had some elements in common was relevant to the issue of totality.
It was submitted that if the respondent had not produced the tomahawk (and swung it towards the victim) after the respondent's demand for the victim's car keys had not been met, he would have been guilty of a trespass and not an aggravated burglary. It was submitted that one set of actions resulted in two charges being preferred.
Counsel contended that there was no need for any accumulation of the individual sentences and her Honour did not err in ordering the individual sentences to be served concurrently.
It is unnecessary to summarise counsel for the respondent's submissions in relation to grounds 3 and 4.

The merits of grounds 1 and 2

A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).

The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[4] The State of Western Australia v Doyle;[5] McAlpine v The State of Western Australia.[6]
[4] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[5] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[6] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[7]
[7] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[8]
[8] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
The maximum penalty for the offence alleged in count 1 is 20 years' imprisonment. See s 401(2)(a) of the Code. The maximum penalty for the offence alleged in count 2 is 14 years' imprisonment. See s 392 read with s 552(2)(a) of the Code.
We have had regard to a number of previous cases in which this court has considered sentences for aggravated home burglary, contrary to s 401(2)(a) of the Code, including Mamkin v The State of Western Australia;[9] Humphreys v The State of Western Australia;[10] Jolly v The State of Western Australia;[11] Brindley v The State of Western Australia;[12] Eldridge v The State of Western Australia;[13] and The State of Western Australia v Richards.[14]
[9] Mamkin v The State of Western Australia [2017] WASCA 61.
[10] Humphreys v The State of Western Australia [2017] WASCA 208.
[11] Jolly v The State of Western Australia [2017] WASCA 181.
[12] Brindley v The State of Western Australia [2019] WASCA 153.
[13] Eldridge v The State of Western Australia [2020] WASCA 66.
[14] The State of Western Australia v Richards [2020] WASCA 129.
In Brindley [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 [63] ‑ [64], it was noted:
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.

In the present case, the respondent's offending in relation to count 1 was deplorable. The seriousness of the offence is apparent from the aggravating features identified by the sentencing judge, namely:
(a)the offending involved an invasion of the privacy and safety of the victim and his family in their own home;
(b)the respondent armed himself with a tomahawk before he committed the offending;
(c)to the extent that this differs from the first factor and goes beyond the elements of the offence, the respondent entered the victim's home without consent;
(d)the respondent was told repeatedly to leave the home and refused;
(e)the respondent wielded and swung the tomahawk at the victim who was endeavouring to remove him from the house; and
(f)during the struggle the respondent caused bodily harm to the victim.
In addition to those aggravating features, there were the statutory circumstances of aggravation which resulted in the respondent's offending being subject to the maximum penalty of 20 years' imprisonment.
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.
Further, the respondent's repeated statement, 'I don’t want to hurt you', while he brandished the tomahawk in his right hand above his head, was reasonably capable of being understood as impliedly asserting that if the victim did not comply with the respondent's demands, the respondent would hurt him.
There were, of course, some mitigating factors. In particular:
(a)the respondent had pleaded guilty, for which her Honour allowed a discount of 25%, and the respondent had not minimised or endeavoured to justify his offending;
(b)he was genuinely remorseful;
(c)the respondent had a traumatic childhood; he had suffered physical and emotional abuse; his education was limited; and he had begun using cannabis and drinking alcohol heavily during his childhood;
(d)his traumatic circumstances resumed when he was an adult; he had been diagnosed as suffering from depression and anxiety; and he had been prescribed antidepressant and antipsychotic medication; and
(e)while in custody on remand for the offending in question, the respondent had undertaken peer support work within the prison.
The respondent was aged 25 at the time of the offending and was 26 when sentenced. Although her Honour said that the respondent was still 'relatively young', very little mitigatory weight could properly be afforded on account of his age.
The respondent had a prior criminal record. Although the respondent's prior criminal record and the failure of previous attempts to facilitate his rehabilitation did not aggravate the seriousness of the current offending, the respondent was not entitled to any mitigation on the basis that the current offending was an aberration or that he was a person of previous good character.
The respondent did not establish, as a mitigating factor, that his mental health issues had caused the current offending.
After evaluating the sentence for count 1, in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)relevant sentencing decisions of this court in relation to offending with at least some features comparable to the respondent's offending;
(d)the place which the respondent's offending occupies on the relevant scale of seriousness;
(e)the repeated statements by this court in previous sentencing decisions to the effect that sentences for home burglary (especially aggravated home burglary) need to be firmed up;
(f)the vulnerability of the victim;
(g)the respondent having spent 386 days in custody on remand solely in respect of counts 1 and 2;
(h)the respondent's personal circumstances; and
(i)all other mitigating factors,
we are of the opinion that it was not reasonably open to the sentencing judge to fail to be satisfied that it was inappropriate to impose a term of conditionally suspended imprisonment.
Further, after evaluating the sentence for count 1, in the context of those factors, we are of the opinion that the length of the conditionally suspended term of imprisonment was unreasonable or plainly unjust.
In all the circumstances, we are satisfied that the sentence imposed by her Honour for count 1 was not commensurate with the seriousness of the offence. The sentence was manifestly inadequate both as to type and length. We infer the existence of error from the sentencing outcome.
Ground 1 has been made out in relation to the individual sentence imposed for count 1.
It necessarily follows that ground 2 has been made out in relation to the total effective sentence.
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See McGarry v The Queen;[15] The State of Western Australia v Cairns;[16] YDN v The State of Western Australia;[17] Law v The Queen.[18]
[15] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[16] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[17] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[18] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).
It is therefore unnecessary for this court to consider ground 1 in relation to the individual sentence imposed for count 2.

The merits of grounds 3 and 4

It is also unnecessary to deal with grounds 3 and 4.

The result of the appeal and the resentencing of the respondent

We would grant leave to appeal on grounds 1 and 2 and refuse leave to appeal on grounds 3 and 4. The appeal must be allowed and the sentencing decision of the sentencing judge set aside.
Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney‑General (NSW).[19]
[19] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
In our opinion, there is no basis, in the present case, for invoking the residual discretion. The individual sentence for count 1 and the total effective sentence imposed by the sentencing judge were substantially more lenient than the sentences open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for offences contrary to s 401(2)(a) of the Code.
This court has the material necessary to resentence the respondent.
Counsel for the respondent informed this court (without any objection from the State) that the respondent had complied with the terms of the conditionally suspended imprisonment orders made by her Honour on 2 April 2020. The respondent had been living a 'pro-social life in the community' (appeal ts 34).
After taking into account all of the matters referred to at [76] and [88] above, this court resentenced the respondent on count 1 to 3 years 3 months' immediate imprisonment.
We decided that, in view of the overlap between the factual elements of count 2 and the factual elements of count 1, no penalty should be imposed on the resentencing for count 2. See s 11(1) of the Sentencing Act.
The new total effective sentence was therefore 3 years 3 months' immediate imprisonment. The new total effective sentence was backdated to 28 May 2019 to take into account the 386 days the respondent had spent in custody on remand solely in respect of counts 1 and 2. We made a parole eligibility order.

Can and should this court correct the backdating of the new total effective sentence?

As we have mentioned:
(a)on 17 June 2020, this court backdated to 28 May 2019 the new sentence for count 1 and the new total effective sentence it imposed on the respondent to take into account the 386 days that the respondent had spent in custody on remand solely in respect of counts 1 and 2 between 14 March 2019 (when he was arrested in relation to the charged offences) and 2 April 2020 (when he was sentenced by the sentencing judge);
(b)the respondent failed to surrender himself into custody on 17 June 2020;
(c)on 17 July 2020, this court held a further hearing to determine whether it could and should correct the backdating, in that the date of the backdating, namely 28 May 2019, was calculated on the basis that the respondent would surrender himself into custody on 17 June 2020; and
(d)on 20 July 2020, the respondent was arrested and taken into custody.
Section 87(1)(d) of the Sentencing Act 1995 (WA) provides, relevantly, that a court sentencing an offender to imprisonment for an offence may take into account time previously spent in custody by the offender in respect of that offence 'by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence'.
Section 41(3)(c) of the Criminal Appeals Act provides, relevantly, that if under that Act this court decides to vary a sentence, it may 'order that the sentence is to be taken to have taken effect on a date before the date of the order'. Similarly, s 41(1)(a) of the Criminal Appeals Act provides, relevantly, that if under that Act this court decides to impose a sentence, it may 'order that the sentence is to be taken to have taken effect on a date before the date of the order'.
Section 6(1) of the Sentence Administration Act 2003 (WA) provides, relevantly, that unless s 6 provides otherwise or an order is made under s 87(d) of the Sentencing Act, 'a term, other than indefinite imprisonment, begins on the day it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence'.
Section 6(1) does not refer to s 41(3)(c) of the Criminal Appeals Act (or, indeed, to any provision of the Criminal Appeals Act). That omission is explicable on the basis that the Sentence Administration Act was enacted and came into operation before the Criminal Appeals Act was enacted and came into operation. The Criminal Appeals Act does not refer to any provision of the Sentence Administration Act.
Section 6(1) of the Sentence Administration Act and s 41(3)(c) of the Criminal Appeals Act deal with the same subject matter to the extent that they relate to the date on which a sentence varied by this court on appeal is to take effect. Section 41(3)(c) is the later statutory provision. By implication, the statement in s 6(1) as to the date on which a term, other than indefinite imprisonment, begins, is subject to an order made under s 41(3)(c). See Goodwin v Phillips.[20]
[20] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, 7 (Griffith CJ).
Section 8 of the Sentence Administration Act is concerned with the effect on a term of imprisonment of a prisoner not being in lawful custody.
Section 8 provides:
(1)A term does not elapse while a prisoner is at large, having escaped lawful custody while serving it.
(2)A prisoner who is returned to lawful custody after having escaped from it while serving a fixed term, must serve ‑
(a)the part of the term he or she had yet to serve at the time of escaping; plus
(b)one‑third of the lesser of ‑
(i)the period during which he or she was absent from lawful custody; or
(ii)the period beginning on the date of escape and ending on the date when, but for the escape, the fixed term would have ended,
in addition to any term imposed for escaping lawful custody.
(3)A term does not elapse while a prisoner is not in lawful custody unless this Act or another written law provides otherwise.
By s 3 of the Sentence Administration Act, that Act is to be read with the Sentencing Act.
Section 4(1) of the Sentence Administration Act provides that, if not defined in the Act, words and expressions in the Act have the same definitions as in the Sentencing Act and, in particular, in pt 13 of that Act. See also s 5 of the Sentence Administration Act.
In pt 13 of the Sentencing Act:
(a)the expression 'term' is defined to mean, relevantly, a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment;
(b)the expression 'fixed term' is defined to mean a term that is not life imprisonment; and
(c)the expression 'parole term' is defined to mean, relevantly, a term to which a parole eligibility order applies.
By s 4(2) of the Sentence Administration Act, in the Act, unless the contrary intention appears, 'prisoner' means, relevantly, 'a person sentenced to a fixed term, whether a parole term or not'.

Section 37 of the Sentencing Act is concerned with the correction of a sentence.
Section 37 provides:
(1)If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
(2)The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.
(3)If a court’s order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.
(3a)A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.
(4)This section does not affect any right of appeal against a sentence.
(5)In this section ‑
sentence includes an order in addition to sentence.
The State argued in its written submissions that the effect of s 8(3) of the Sentence Administration Act is that a term of immediate imprisonment does not elapse while a prisoner is not in lawful custody unless another provision of that Act, or another written law, provides otherwise. It was submitted that the respondent was a 'prisoner' within s 8(3). It was also submitted that no other provision of the Sentence Administration Act and no other written law made provision different from s 8(3). According to the State, s 8(3) is not dependent upon the prisoner being at large on account of having escaped lawful custody. It was argued that s 8(3) deals with the point in issue in the present case. When the respondent is apprehended, the date upon which he will become eligible for release (be it on parole or otherwise) will be a matter of administrative calculation, the only variable being the length of the period between the date on which the respondent was resentenced by this court and the date of his eventual apprehension.
The State argued, in the alternative, that if the point in issue in the present case is not dealt with by s 8(3) of the Sentence Administration Act, then this court could and should correct the backdating pursuant to s 37 of the Sentencing Act.
Counsel for the State said, in his oral submissions, that if there was any doubt as to whether s 8(3) of the Sentence Administration Act applied, the matter should be made 'crystal clear' by this court making a correcting order in relation to the backdating, pursuant to s 37 of the Sentencing Act.
Counsel for the respondent accepted that if there was any uncertainty as to the application, in the present case, of s 8(3) of the Sentence Administration Act, this court should make a correcting order pursuant to s 37 of the Sentencing Act.
We are satisfied that, for the purposes of the present case, no other provision of the Sentence Administration Act and no other written law makes provision different from s 8(3) of the Sentence Administration Act.
In our opinion, it is apparent from the text of s 8(3) of the Sentence Administration Act, read with the definition of 'prisoner' in s 4(2) of that Act, that s 8(3) applies, relevantly, to a person who has been sentenced to a 'fixed term', as defined in pt 13 of the Sentencing Act, while that person is not in lawful custody. Section 8(3) does not apply unless the person is required to be held in lawful custody, as a result of the person having been sentenced to a 'fixed term', and the person is not in lawful custody. Section 8(3) is not concerned with the circumstance of a prisoner being at large as a result of his or her having escaped lawful custody. That circumstance is governed by s 8(1) and s 8(2).
Upon this court resentencing the respondent on 17 June 2020, the respondent became a 'prisoner', as defined in s 4(2) of the Sentence Administration Act, in that he became a person who was sentenced to a 'fixed term', as defined in pt 13 of the Sentencing Act.
The respondent was in custody on remand for 386 days between 14 March 2019 (when he was arrested in relation to the charged offences) and 2 April 2020 (when he was sentenced by her Honour).
In our opinion, s 8(3) does not apply to the period between 14 March 2019 and 2 April 2020 because:
(a)the respondent was not then a 'prisoner', as defined in s 4(2) of the Sentence Administration Act, in that, relevantly, he was not then a person who had been sentenced to a 'fixed term', as defined in pt 13 of the Sentencing Act; and
(b)in any event, the respondent was in lawful custody throughout that period.
The respondent was serving the conditionally suspended term of 11 months' imprisonment between 2 April 2020 (when her Honour imposed sentence) and 17 June 2020 (when the conditionally suspended term of imprisonment was set aside by this court and the respondent was resentenced).
In our opinion, s 8(3) does not apply to the period between 2 April 2020 and 17 June 2020 because the respondent was not then a 'prisoner', as defined in s 4(2) of the Sentence Administration Act, in that, relevantly, he was not then a person who had been sentenced to a 'fixed term', as defined in pt 13 of the Sentencing Act.
It is apparent, from the text of s 8(3) of the Sentence Administration Act, read with the definition of 'prisoner' in s 4(2) of that Act, that s 8(3) applies prospectively; that is, the provision applies, relevantly, on and from the date on which a person is sentenced to a 'fixed term', as defined in pt 13 of the Sentencing Act. The prospective character of s 8(3) is indicated by the expression 'does not elapse'. The expression refers, in the present tense, to time not passing, and connotes that a sentence of imprisonment does not run, after the sentence has been imposed on an offender, while the offender is not in lawful custody. Section 8(3) does not apply in relation to time that a prisoner has served in lawful custody before the 'fixed term' in question was imposed.
On 17 June 2020, the respondent was sentenced by this court to a 'fixed term', as defined in pt 13 of the Sentencing Act. On and from 17 June 2020, the respondent was therefore a 'prisoner', as defined in s 4(2) of the Sentence Administration Act. Consequently, by virtue of s 8(3) of the Sentence Administration Act, the new sentence of 3 years 3 months' immediate imprisonment for count 1 and the new total effective sentence of 3 years 3 months' immediate imprisonment did not elapse while the respondent was not in lawful custody for the period of 33 days between 17 June 2020 and 20 July 2020.
Accordingly, the new sentence for count 1 and the new total effective sentence was taken to have elapsed, by virtue of the backdating, between 28 May 2019 and 17 June 2020, but did not elapse, by virtue of the respondent not being in lawful custody, between 17 June 2020 and 20 July 2020. The new sentence and the new total effective sentence then began to elapse again on and from 20 July 2020 when the respondent was in lawful custody.
In our opinion, it is unnecessary, in the circumstances, for the court to correct the backdating in order 6, pursuant to s 37 of the Sentencing Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
9 SEPTEMBER 2020