Woods v The State of Western Australia - [2017] WASCA 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WOODS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 179

CORAM: BUSS P
BEECH JA
HALL J

HEARD: 20 JULY 2017

DATE OF FINAL
SUBMISSIONS : 18 AUGUST 2017

DELIVERED : 29 SEPTEMBER 2017

FILE NO/S: CACR 202 of 2016

BETWEEN: LEVAYDA JANET WOODS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ALLANSON J
File No  :INS 299 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on pleas of guilty of 13 counts in an indictment - Counts comprised eight offences of aggravated burglary, two offences of burglary of a dwelling, one offence of attempted aggravated burglary, one offence of aggravated robbery and one offence of aggravated armed robbery - Appellant aged 21 at the time of the offending - Total effective sentence of 9 years 6 months' imprisonment - Whether the total effective sentence infringed the first limb of the totality principle

Criminal law - Appeal against sentence - Appellant convicted on pleas of guilty of 77 offences in addition to the 13 counts in the indictment - Appellant committed the 77 offences contemporaneously with the commission of the 13 counts - Appellant sentenced in the Magistrates Court for the 77 offences after the appellant was sentenced in the Supreme Court for the 13 counts - Custodial sentences for the 77 offences ordered to be served concurrently with the total effective sentence for the 13 counts - No appeal by the State or the appellant in respect of the magistrate's sentencing decision - Proper construction and application of s 41(4)(a) read with s 31(3) and s 31(4)(a) of the Criminal Appeals Act 2004 (WA) - Whether the magistrate's sentencing decision was a 'matter ... relevant to the sentence' for the 13 counts within s 41(4)(a) of the Act

Legislation:

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a), s 31(5), s 39, s 40(1)(e), s 41(3)(c), s 41(4)(a)

Result:

Leave to appeal granted
Appeal allowed
Sentencing judge's orders in relation to concurrency, cumulacy and backdating set aside
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Mr R G Wilson

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34
Colbung v The State of Western Australia [2013] WASCA 257
Garraway v The State of Western Australia [2015] WASCA 240
Giglia v The State of Western Australia [2010] WASCA 9
Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207
Hassan v The State of Western Australia [2006] WASCA 139
Hill v The State of Western Australia [2014] WASCA 150
Mamkin v The State of Western Australia [2017] WASCA 61
Miller v The State of Western Australia [2009] WASCA 79
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
QJS v The State of Western Australia [2015] WASCA 9
Roffey v The State of Western Australia [2007] WASCA 246
Rolfe v The State of Western Australia [2012] WASCA 169
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
Wheeler v The Queen [No 2] [2010] WASCA 105
Williams v The State of Western Australia [2016] WASCA 232
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585
Wroth v The State of Western Australia [2013] WASCA 155

BUSS P: The appellant appeals against sentence.
On 30 November 2016, the appellant was convicted, on her pleas of guilty in the Supreme Court before Allanson J, of 13 counts in an indictment.
The counts comprised eight offences of aggravated burglary (counts 3, 4, 5, 7, 8, 10, 11 and 13), two offences of burglary of a dwelling (counts 2 and 12), one offence of attempted aggravated burglary (count 9), one offence of aggravated robbery (count 1) and one offence of aggravated armed robbery (count 6).
On 30 November 2016, the sentencing judge imposed individual sentences of immediate imprisonment as follows:
(a)count 1:     3 years 6 months;
(b)count 2:     1 year;
(c)count 3:     18 months;
(d)count 4:     18 months;
(e)count 5:     18 months;
(f)count 6:     5 years;
(g)count 7:     18 months;
(h)count 8:     18 months;
(i)count 9:     2 years;
(j)count 10:    18 months;
(k)count 11:    18 months;
(l)count 12:    1 year; and
(m)count 13:   18 months.
His Honour ordered that the individual sentences for counts 1, 2 and 6 be served cumulatively upon each other and that the individual sentences for the other counts be served concurrently with each other and concurrently with the accumulated sentences. The total effective sentence was therefore 9 years 6 months' imprisonment. The total effective sentence was backdated to 7 October 2015. A parole eligibility order was made.

The facts and circumstances of the offending

The offences were committed between 9 September 2015 and 7 October 2015. The total value of the property stolen by the appellant exceeded $125,000.
The following summary of the facts and circumstances of the offending is taken from the sentencing judge's sentencing remarks. His Honour's findings were not challenged by the appellant in the appeal.
Count 1: On 9 September 2015, the appellant stole the car of an 83‑year‑old woman. The appellant entered the car and sat in a passenger's seat. She asked for a lift. The appellant then snatched the keys from the victim's hand, directed her to get out of the car, pulled the victim forcibly from the car, and stole it. The car had an estimated value of $21,000. It was extensively damaged after the appellant stole it. The car was written off. The incident had a significant impact on the victim and her sense of safety and security.
Count 2: On 25 September 2015, the appellant forced the kitchen window of a home unit in Mount Lawley, stole the keys to a car located there and used them to steal the vehicle. The estimated value of the vehicle was $12,000.
Count 3: On 26 September 2015, the appellant entered a house in Thornlie looking for items to steal. One of the home owners was home and saw the appellant rummaging through his wife's handbag on the kitchen bench. The appellant fled when she was disturbed.
Count 4: On 27 September 2015, at about 12.25 am, the appellant forced the front window of a house. She entered and stole numerous items, including a handbag, a watch, jewellery and keys. The home owner and a friend were home at the time.
Count 5: On 29 September 2015, the appellant entered a house and stole a wallet that was on a bedside table. She was disturbed and fled on a bicycle but then, brazenly, returned and stole the victim's car from the carport, crashing into the fence as she left. The vehicle was valued at about $20,000. The value of other property stolen was about $1,400.
Count 6: On 1 October 2015, the appellant went to a house in Beeliar. She asked the victim, a 72-year-old-woman, if she could use her telephone. The victim refused. The appellant then went around the house and gained entry by forcing a sliding window. She was armed with a knife. The appellant took property from a bedroom before entering the hall where she was confronted by the victim. The appellant stood close to the victim and raised the knife in an aggressive manner, pointed it at the victim, and demanded jewellery and car keys. The victim feared for her life. The appellant took the victim's mobile telephone, the keys to her car, and other property. The victim began to feel unwell and asked the appellant to telephone for an ambulance. The appellant declined. She departed, stealing the victim's car as she went. The car was worth about $12,000. The value of the other property stolen was about $4,000. The victim was taken to hospital with suspected damage to her heart as a result of stress and anxiety. She continues to suffer from stress and anxiety as a result of the appellant's offending.
Count 7: On 2 October 2015, at about 2.45 am, the appellant entered a house but fled when she was disturbed.
Count 8: On 2 October 2015, at about 9.30 am, the appellant went to a house in North Beach. The victim, an 82-year-old woman, permitted her to enter so the victim could write down some directions for her. The victim thought she was helping the appellant. While inside, the appellant stole the keys to the victim's car and then stole the car. It was later found abandoned with extensive damage. It was valued at about $12,000.
Count 9: On 3 October 2015, the appellant knocked on the door of a house and asked the woman who answered to call her a taxi as she was being chased by her (the appellant's) boyfriend. While the victim telephoned for a taxi, the appellant went to the rear of the house where she attempted to enter by pulling a flyscreen from a window and using a pair of garden secateurs to try and break the window.
Count 10: On 3 October 2015, the appellant was disturbed while in the victim's garage. The appellant asked the victim to call her a taxi. The appellant then ran into the house where she stole the keys to the victim's car and a handbag. The appellant used the keys to steal the car.
Count 11: On 3 October 2015, the appellant entered a house where she was again disturbed by the victim. The appellant stole the keys to the victim's car and used them to steal the car. It was found later. Its value was about $12,000.
Count 12: On 3 October 2015, the appellant went to a house in Heathridge where she entered by pushing in a window frame. She damaged items in the house and stole personal items with total value of about $14,000, including a hearing aid, World War II medals and other goods that could not be replaced. She stole the keys to the victim's car and stole the car. It was found damaged and abandoned. Its value was about $6,000.
Count 13: On 7 October 2015, the appellant entered a house in Riverton. The victim was home. The appellant locked herself in an upstairs bedroom and stole jewellery to the value of about $5,000. She was arrested soon afterwards.

The sole ground of appeal

The sole ground of appeal alleges in effect that the total effective sentence of 9 years 6 months' imprisonment infringed the first limb of the totality principle.
On 3 March 2017, Mazza JA referred the application for leave to appeal to the hearing of the appeal.

The sentencing judge's sentencing remarks

The information before the sentencing judge included a psychological report dated 30 October 2016 from Ms Tanina Oliveri, a clinical and forensic psychologist, and a pre‑sentence report dated 21 November 2016.
The appellant was born on 16 July 1994. She was aged 21 at the time of the offending and was 22 when sentenced.
His Honour noted details of the appellant's deprived background as follows:
(a)The appellant had a dysfunctional family. Her mother suffered from mental illness and her father was absent.
(b)The appellant was exposed from a young age to illicit drug use by family members.
(c)When she was aged 12 the appellant was sexually abused by a relative.
(d)The appellant's cousin, who was also sexually abused at that time, committed suicide.
(e)The appellant was affected deeply by her cousin's suicide. Older relatives failed to support her.
(f)The appellant commenced using alcohol and inhalants when aged about 11. She left home and began using methylamphetamine at age 14.
(g)The appellant suffered domestic violence in her first relationship. On one occasion, she was critically injured by her partner. She was admitted to hospital in a coma.
(h)The appellant has two young children from that first relationship. The children's paternal grandmother took care of them while the appellant was in hospital.
(i)After the appellant was discharged from hospital the children's paternal grandmother refused to return the children to her. Subsequently, the appellant's illicit drug use increased and her offending escalated [19] ‑ [22].
The appellant has an extensive and persistent record of offending from the age of 13 including serious offences as a child. However, before the current episode of offending, the appellant had never been sentenced to a term of imprisonment or appeared in a superior court. The overall period of the current offending was short. A number of offences were committed on the same day.
The sentencing judge observed that when the current offending happened the appellant was 'completely out of control as a result of [her] drug use' [23]. However, some aspects of the offending demonstrated 'a degree not simply of deliberation but of some calculation' [24]. In particular, several of the offences involved targeting elderly women. His Honour believed that this feature of the appellant's offending was intentional [24].
His Honour accepted that the appellant was in need of significant psychological treatment. However, the seriousness of her offending was 'so great that deterrence and punishment and the protection of the community, particularly vulnerable members of the community who [the appellant] showed a tendency to target [outweighed her] individual needs' [25]. A long term of immediate imprisonment was necessary.
The appellant entered early pleas of guilty. The sentencing judge reduced by 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), the head sentence he would otherwise have imposed for each offence to recognise the benefit to the State and to the victim of each offence resulting from the plea [28].
His Honour took into account, as mitigating factors, the appellant's youth and her deprived background.

Later sentences imposed on the appellant in the Magistrates Court

As I have mentioned, on 30 November 2016 the sentencing judge sentenced the appellant for the 13 counts in the indictment.
At that time there were 77 offences pending before the Magistrates Court in respect of which the appellant had not been sentenced. Curiously, those offences were not the subject of a notice pursuant to s 32 of the Sentencing Act.
It is unnecessary to set out details of the 77 offences. It is sufficient to note that they were committed between 27 July 2015 and 7 October 2015 and included stealing, receiving, disorderly behaviour, gaining benefits by fraud, reckless driving to escape pursuit by police, burglary, aggravated burglary and stealing motor vehicles.
On 20 December 2016, the appellant was sentenced for the 77 offences in the Stirling Gardens Magistrates Court. Magistrate Whitbread imposed a sentence of 6 months' immediate imprisonment for several of the offences, fines and motor driver's licence disqualifications. The terms of imprisonment were ordered to be served concurrently with each other and concurrently with the sentences imposed by the sentencing judge on 30 November 2016. Her Honour said:
I've read your sentencing remarks from Allanson J, and I've read the reports, and you're a young woman who has obviously had a very, very difficult life, and some awful things have happened to you, but I know that you have two young children, and I'm sure you love them very much, and I'm sure you miss them very much in custody, but you're going to be in prison for quite a long time, but life hasn't given you many breaks up until now, but if you use the time you're in custody wisely, it may turn your life around and enable you to give your kids a pretty good chance in life that you didn't have.
So use your time wisely, and, as I say, look, I've got no idea whether what I say to you really carries any impact, but I was touched by the things that had happened to you in your life, and I would like to think that you can use the time you're in custody to change things (ts 29 ‑ 30).
Her Honour then confirmed that the sentences of imprisonment she had imposed were to be served concurrently with each other and concurrently with the sentences imposed by the sentencing judge (ts 30).
The sentences of imprisonment imposed by the magistrate were not backdated. They therefore commenced on 20 December 2016, being the date of sentencing. The appellant has served those sentences.
Neither the appellant nor the prosecution appealed against the magistrate's sentencing decision.

The appellant's submissions

Counsel for the appellant submitted that the total effective sentence of 9 years 6 months' imprisonment imposed by the sentencing judge was disproportionate to the overall criminality of the appellant's offending, having regard to her pleas of guilty, her youth, her personal circumstances (in particular, her childhood trauma, deprivation and social disadvantage) and established sentencing standards.

The State's submissions

Counsel for the State submitted that the appellant had committed a series of very serious offences and had targeted elderly, vulnerable people. Appropriate punishment, personal and general deterrence and the protection of vulnerable members of the community were the dominant sentencing factors. Although matters personal to the appellant remained relevant, their significance was overwhelmed substantially by the number and seriousness of the offences. No breach of the first limb of the totality principle had been established.

The merits of the ground of appeal

The appellant contends in her ground of appeal that the total effective sentence of 9 years 6 months' imprisonment infringed the first limb of the totality principle. The ground does not allege that the sentencing judge made any express error. For example, his Honour's findings of fact are not impugned. None of the individual sentences are challenged.
A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome. 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 a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence 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 [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
The so-called one transaction rule or continuing episode rule is not, of course, a rule at all, but merely a guideline. Ultimately, each case must depend on its own facts and circumstances. See Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [23] (Steytler P). That is, the sentencing court must decide, in each case, whether the application of the guideline would result in an appropriate measure of the total criminality involved in the offending conduct.
The maximum penalties for the offences committed by the appellant are as follows:
(a)aggravated burglary, contrary to s 401(1)(a) of the Criminal Code (WA) (the Code): 20 years' imprisonment;
(b)burglary of a dwelling, contrary to s 401(2)(b) of the Code: 18 years' imprisonment;
(c)attempted aggravated burglary, contrary to s 401(1)(a) read with s 552 of the Code: 10 years' imprisonment;
(d)aggravated robbery, contrary to s 392 of the Code: 20 years' imprisonment; and
(e)aggravated armed robbery, contrary to s 392 of the Code: life imprisonment.

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 offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. 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 this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court’s decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
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.
I have considered and taken into account a number of cases involving offending with some features comparable to the appellant's offending. In particular, I have had regard to Hassan v The State of Western Australia [2006] WASCA 139; Miller v The State of Western Australia [2009] WASCA 79; Rolfe v The State of Western Australia [2012] WASCA 169; Gillespie v The State of Western Australia [2013] WASCA 149; (2013) 45 WAR 207; Wroth v The State of Western Australia [2013] WASCA 155; Colbung v The State of Western Australia [2013] WASCA 257; Hill v The State of Western Australia [2014] WASCA 150; QJS v The State of Western Australia [2015] WASCA 9; Garraway v The State of Western Australia [2015] WASCA 240; Williams v The State of Western Australia [2016] WASCA 232; and Mamkin v The State of Western Australia [2017] WASCA 61.
The appellant's overall offending was very serious. The following facts and circumstances were especially egregious:
(a)Most of the offences involved some premeditation, calculation and planning.
(b)The appellant specifically and intentionally targeted elderly women.
(c)As to count 1, the appellant forcibly pulled the 83‑year‑old victim from her car. The offending has had a significant impact on the victim and her sense of safety and security.
(d)As to count 6, the appellant armed herself with a knife to assist in the commission of the offence. The 72‑year‑old victim told the appellant, in the course of the offending, that she felt unwell and requested the appellant to telephone for an ambulance. The appellant refused to assist, departed from the crime scene and stole the victim's car. The victim was taken to hospital. She continues to suffer from stress and anxiety as a result of the offending.
The appellant was not a person of prior good character. She was not entitled to any mitigation on the basis that the current offending was an aberration. However, the fact that the appellant was not a person of prior good character, and the fact that previous attempts to facilitate her rehabilitation had failed, did not aggravate the seriousness of the current offending.
There were, nevertheless, some factors which mitigated the very serious nature of the overall offending. The appellant entered early pleas of guilty. She was youthful for sentencing purposes, but the egregious character of her offending reduced the extent to which she could be given credit in the sentencing process for her youth. The appellant had a deprived background. She was exposed at an early age to substance abuse (notably, alcohol, inhalants and illicit drugs) by family members. The appellant had not previously been sentenced to a term of imprisonment or appeared in a superior court. The period during which the current offences were committed was short.
The main sentencing factors were personal and general deterrence, and the protection of the community. It was necessary, in order properly to mark the appellant's overall criminality in committing numerous serious offences, to accumulate some of the individual sentences. However, the total effective sentence of 9 years 6 months' imprisonment imposed by the sentencing judge was, in my opinion, severe having regard to all relevant sentencing factors and all relevant sentencing principles; in particular, having regard to the sentencing pattern revealed by reasonably comparable cases and to the factors which mitigated the appellant's overall offending.
I am persuaded, after taking into account the maximum penalties for the offences; the facts and circumstances of the offending viewed as a whole; the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offending of this kind; the personal circumstances of the appellant; and all other sentencing factors (including the aggravating and mitigating features), that the total effective sentence of 9 years 6 months' imprisonment was outside the range open to the sentencing judge. The proper exercise of the sentencing discretion required lesser accumulation of the individual sentences. A different and lower total effective sentence should have been imposed. I would imply or infer error, based on the first limb of the totality principle, from the sentencing outcome.
The ground of appeal has been made out.

The State's contention based on s 41(4)(a) of the Criminal Appeals Act 2004 (WA)

Counsel for the State contended that if this court was of the opinion that the ground of appeal had been made out, the court should nevertheless dismiss the appeal on the basis that:
(a)the sentencing of the appellant on 20 December 2016 in the Stirling Gardens Magistrates Court, for the 77 offences to which I have referred, was a matter 'relevant to the sentence that has occurred' between when the sentencing judge dealt with the appellant (30 November 2016) and when this court heard the appeal (20 July 2017), within s 41(4)(a) of the Criminal Appeals Act 2004 (WA); and
(b)when account is taken of 'the history and outcome of the sentencing proceedings before the Magistrates Court', a total effective sentence of 9 years 6 months' imprisonment is an appropriate overall total effective sentence for 'the overall criminality involved in the Supreme Court and Magistrates Court matters'.
I do not accept that, in the present case, this court should dismiss the appeal on the basis contended for by counsel for the State.
Section 31(3) of the Criminal Appeals Act provides, in effect, that unless under s 31(4) this court allows an appeal against sentence, it must dismiss the appeal. By s 31(4)(a), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed. By s 31(5), if this court allows an appeal against sentence, it must set aside the sentence and may instead impose a new sentence that is either more or less severe or may send the charge back to the court that imposed the sentence to be dealt with further.
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may admit any other evidence. The power in s 40(1)(e) should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. See Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA); The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P, Buss JA & Mazza J agreeing); AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] - [124] (Martin CJ, Mazza JA & Hall J).
Section 41(4)(a) of the Criminal Appeals Act provides, relevantly, that '[an] appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard'.
Section 41(4)(a) confers a power on an appeal court. The power is enlivened if the appeal court is deciding an appeal 'that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence'. The power, if enlivened, permits the appeal court, subject to s 41(4)(b), to take into account 'any matter … relevant to the sentence' that has occurred between when the lower court dealt with the person and when the appeal is heard.
In The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137, McLure P (Mazza JA agreeing) said:
I would construe s 31(4) and s 41(4) as giving rise to the following propositions (without intending to be exhaustive):
(1)this Court’s discretion under s 31(4) to allow an appeal is enlivened if the appellant (State or offender) establishes that the sentence is erroneously lenient or excessive (that is, the sentencing judge made an appealable error and the court is of the opinion that the sentencing judge should have imposed a different sentence);
(2)in deciding whether or not to allow an appeal and in any re‑sentencing the court may, subject to s 41(4)(b), take into account any relevant matter that has occurred between the time of sentencing and when the appeal is heard [41].
In Munda, I made the following observations:
[Section] 41(4) applies where an appeal court is deciding an appeal against sentence that:
(a)does require it to impose a sentence, or to vary a sentence imposed, on a person for an offence; or
(b)may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence.
The language of this provision suggests that an appeal court may exercise the power conferred by … s 41(4)(a) before the appeal court has decided to allow or dismiss the appeal and, if it decides to allow the appeal, before it imposes a sentence or varies an existing sentence imposed on a person for an offence.
So, for example, it appears that an appeal court may take into account the matters referred to in … s 41(4)(a) in connection with deciding whether it should exercise the discretion under s 31(4).
It is unnecessary, however, in this appeal, to explore any limits upon or pre-conditions to the exercise of the power conferred by … s 41(4)(a), or the interaction or relationship between … s 41(4)(a) and s 39 or the more general powers under s 40 [220] ‑ [223]. (original emphasis)
This court's decision in Munda was appealed to the High Court. The appeal was dismissed. The High Court did not cast any doubt on the correctness of this court's comments about s 41(4)(a). See Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
It is apparent, on McLure P's construction of s 41(4)(a) in Munda, that, subject to s 41(4)(b) (which is of no relevance in the present case), the power in s 41(4)(a) is enlivened not only when an appeal court is imposing a sentence, or varying a sentence imposed, on a person for an offence, but also at an earlier stage when the appeal court is in the process of deciding whether to allow the appeal or not.
In my opinion:
(a)s 41(4)(a) does not permit an appeal court, when the appeal court is in the process of deciding whether to allow the appeal or not, to take into account 'any matter' that has occurred between when the lower court dealt with the person and when the appeal is heard, unless 'the matter' is 'relevant to' the sentence that was imposed by the lower court; and
(b)s 41(4)(a) does not permit an appeal court, when the appeal court is imposing a sentence, or varying a sentence imposed, on a person for an offence, to take into account 'any matter' that has occurred between when the lower court dealt with the person and when the appeal is heard, unless 'the matter' is 'relevant to' the imposition by the appeal court of the sentence or the variation by the appeal court of the sentence imposed by the lower court.
In the present case, this court is deciding an appeal 'that does or may require it … to vary a sentence imposed … on a person for an offence' within s 41(4)(a). The sentence in question is the total effective sentence of 9 years 6 months' imprisonment which the sentencing judge imposed on the appellant for the 13 counts in the indictment.
The total effective sentence imposed by the sentencing judge was a matter relevant to the magistrate's sentencing decision on 20 December 2016 because it was necessary for her Honour, in the application of the totality principle, to decide whether any of the sentences of imprisonment that she imposed for some of the 77 offences should be served concurrently with or cumulatively upon the total effective sentence imposed by his Honour.
The 77 offences were not, of course, a matter relevant to the sentencing judge's decision on 30 November 2016 because at that time the 77 offences were pending before the Magistrates Court and the appellant had not yet been sentenced for them.
As I have mentioned, neither the appellant nor the prosecutor appealed against the magistrate's sentencing decision. Her Honour's decision is not before this court for the purpose of appellate review. This court does not have power to set aside or vary her Honour's sentencing decision; for example, her Honour's orders in relation to concurrency.
In my opinion, the magistrate's sentencing decision is not, in the context of this court's function under s 31(3) read with s 31(4)(a), a matter that is 'relevant to' the total effective sentence imposed by the sentencing judge. In particular, the magistrate's sentencing decision (including the facts and circumstances of the 77 offences with which the decision was concerned) is not relevant at the earlier stage mandated by s 31(3) read with s 31(4)(a), namely whether this court is of the opinion that a different total effective sentence should have been imposed by the sentencing judge. I am of that opinion for these reasons:
(a)Section 31(3) read with s 31(4)(a) is concerned with whether a sentence different from the sentence under appeal should have been imposed. That is, in the present case, those provisions are concerned with the total effective sentence imposed by the sentencing judge for the 13 counts in the indictment and not the overall total effective sentence for the Supreme Court and the Magistrates Court offences.
(b)I have concluded that the total effective sentence imposed by the sentencing judge for the 13 counts in the indictment infringed the first limb of the totality principle and that a different and lower total effective sentence should have been imposed.
(c)In those circumstances, if this court took into account the magistrate's sentencing decision (including the facts and circumstances of the 77 offences with which the decision was concerned) in deciding whether this appeal should be dismissed because a different overall total effective sentence for the Supreme Court and the Magistrates Court offences should not have been imposed, this court would, in effect, be carrying out an appellate review of the magistrate's sentencing decision (in particular, her Honour's decision that the custodial terms she imposed were to be served concurrently with the total effective sentence imposed by the sentencing judge) despite the absence of an appeal against the decision under pt 2 div 2 of the Criminal Appeals Act.
(d)The carrying out by this court of, in effect, an appellate review of the magistrate's sentencing decision at the earlier stage mandated by s 31(3) read with s 31(4)(a), despite the absence of an appeal against the decision, is not consistent with the text and scheme of the Criminal Appeals Act; in particular, the text and scheme of s 31(3) and s 31(4)(a) and the provisions of that Act with respect to commencing and conducting appeals against sentence.
In any event, even if (contrary to my opinion) the magistrate's sentencing decision (including the facts and circumstances of the 77 offences with which the decision was concerned) is relevant at the earlier stage mandated by s 31(3) read with s 31(4)(a), I remain of the opinion, after considering the magistrate's sentencing decision (including the facts and circumstances of the 77 offences with which the decision was concerned) together with the sentencing judge's sentencing decision (including the facts and circumstances of the 13 counts in the indictment with which the decision was concerned), that a different and lower total effective sentence should have been imposed in respect of the 13 counts in the indictment.
In my opinion, the magistrate's sentencing decision (including the facts and circumstances of the 77 offences with which the decision was concerned) should be taken into account in the application of the totality principle (in particular, in the backdating of the new total effective sentence) when this court resentences the appellant in respect of the 13 counts in the indictment.

The result of the appeal and the resentencing of the appellant

Leave to appeal should be granted on the ground of appeal.
I would allow the appeal.
This court has the material necessary to resentence the appellant. The relevant material includes information in relation to the proceedings in the Stirling Gardens Magistrates Court on 20 December 2016 and supplementary written submissions filed by the parties after the hearing of the appeal.
The individual sentences imposed by the sentencing judge were not challenged and should not be disturbed. However, his Honour's orders in relation to concurrency, cumulacy and backdating should be set aside.
After taking into account the maximum penalties for the 13 counts in the indictment; the facts and circumstances of the 13 counts; the vulnerability of the victims of the 13 counts; all aggravating and mitigating factors; and all relevant sentencing principles, I would impose a total effective sentence of 7 years 6 months' imprisonment for the 13 counts in the indictment. The individual sentence for count 2 (1 year's imprisonment) and the individual sentence for count 8 (18 months' imprisonment) should be ordered to be served cumulatively upon each other and cumulatively upon the individual sentence for count 6 (5 years' imprisonment). The individual sentences for all other counts should be ordered to be served concurrently with each other and concurrently with the individual sentence for count 6. The appellant should remain eligible for parole.
Section 41(3)(c) of the Criminal Appeals Act provides that if, under the Act, an appeal 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'.
The sentencing judge backdated the total effective sentence of 9 years 6 months' imprisonment to 7 October 2015, being the date on which the appellant was taken into custody for the 13 counts in the indictment.
As I have mentioned, the magistrate imposed a total effective sentence of 6 months' imprisonment. Her Honour ordered that the individual terms of imprisonment she imposed be served concurrently with each other and concurrently with the sentences imposed by the sentencing judge. Her Honour did not backdate her total effective sentence of 6 months' imprisonment. That sentence therefore commenced on 20 December 2016, being the date of sentencing. It has been served.

In my opinion, the individual sentence for count 6 should be taken to have taken effect on 7 January 2016. The backdating to 7 January 2016 of the new total effective sentence that I would impose for the 13 counts in the indictment will have the effect that the appellant will receive an overall total effective sentence of 7 years 9 months' imprisonment for the 13 counts in the indictment and those of the 77 offences dealt with in the Magistrates Court in respect of which terms of imprisonment were imposed. The backdating to 7 January 2016 of the new total effective sentence for the 13 counts in the indictment will recognise appropriately the appellant's overall criminality in respect of all of the offences charged on indictment and all of the offences charged summarily for which terms of imprisonment were imposed, having regard to all relevant sentencing factors and all relevant sentencing principles.
The appellant will be eligible to be considered for release on parole when she has served 5 years 6 months' imprisonment calculated from 7 January 2016.

BEECH JA & HALL J: We agree with Buss P, for the reasons he gives, that error in the determination of the total effective sentence must be inferred, so ground 1 has been made out.
We also agree with Buss P, for the reasons that he gives, that the State's contention based on s 41(4)(a) and s 31(4)(a) of the Criminal Appeals Act 2004 (WA) should be rejected. We add the following observations.
If this court were to adopt the course invited by the respondent, this court would, in effect, be imposing a sentence reflecting the overall criminality of the offending constituted by the 13 counts on the indictment and the 77 Magistrates Court offences, rather than the offending constituted by the 13 counts on the indictment. It is only the 13 counts the subject of this appeal, and to which attention must be directed in forming the opinion[1] whether a different sentence should have been imposed. That is why, as Buss P explains, the magistrate's sentencing decision and the facts and circumstances of the 77 Magistrates Court offences are not 'relevant to'[2] the total effective sentence imposed by the sentencing judge.
[1] Under s 31(4)(a) of the Criminal Appeals Act.
[2] Within the meaning of s 41(4)(a) of the Criminal Appeals Act.
Totality will, in some cases, require a sentencing court to moderate the sentence it would have imposed for the offending before it, so as to take account of sentences already being served on the offender. However, totality does not call for an increase in a sentence beyond what is the appropriate reflection of the overall criminality of the offending for which the sentencing court is imposing punishment, taking into account all the circumstances of the offending and the offender's personal circumstances. Thus this court should not impose more than an appropriate sentence for the 13 counts in order to achieve what is thought to be a total effective sentence appropriate to the 90 offences.
Consequently, in our opinion, the appropriate total effective sentence must be determined without regard to the 77 Magistrates Court offences.
We agree with Buss P that the appropriate total effective sentence for the appellant's offending constituted by the 13 offences is 7 years 6 months' imprisonment.
The court has a discretion under s 41(1) of the Criminal Appeals Act as to the date the sentence is taken to have taken effect. In exercising this discretionary power it is, in the particular circumstances of this case, appropriate to have regard to the 77 Magistrates Court offences and to the sentences imposed in relation to them. We agree with Buss P that the individual sentences for count 6 should be taken to have taken effect on 7 January 2016.
We agree with the orders proposed by Buss P.