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LAWSON -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2018] WASCA 129 (31 July 2018)

Last Updated: 12 September 2018

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : LAWSON -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2018] WASCA 129

CORAM : BUSS P

MAZZA JA

BEECH JA

HEARD : 20 MARCH 2018

DELIVERED : 31 JULY 2018

FILE NO/S : CACR 130 of 2017

BETWEEN : SHAUN PHILLIP LAWSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : CORBOY J

File Number : INS 213 of 2015

Criminal law - Appeal against motor driver's licence disqualifications - Sentencing judge imposed different periods of disqualification at different times in relation to the same road traffic offences - Whether the sentencing judge was empowered to impose motor driver's licence disqualifications during the subsistence of a pre-sentence order - Whether the original motor driver's licence disqualifications were imposed pursuant to the Road Traffic Act 1974 (WA) or the Sentencing Act 1995 (WA) - Whether the original motor driver's licence disqualifications were part of the sentences subsequently imposed under the Sentencing Act - The proper construction of s 31 and s 41 of the Criminal Appeals Act in the context of an appeal by an offender under s 23 of the Criminal Appeals Act against an order made as a result of the offender's conviction

Criminal law - Appeal against sentences of immediate imprisonment - Whether the sentencing judge erred in his findings as to the seriousness of the appellant's offending - Manifest excess - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 23, s 31, s 41

Criminal Code (WA), s 392(c)

Road Traffic (Administration) Act 2008 (WA), s 4

Road Traffic (Authorisation to Drive) Act 2008 (WA), s 3, s 23A

Road Traffic Act 1974 (WA), s 5, s 59, s 60, s 106A

Sentencing Act 1995 (WA), s 4, s 6, s 32, pt 3A, s 39, s 76, s 81, s 102, s 103, s 105, s 123

Result:

Leave to appeal on ground 2 granted
Leave to appeal on grounds 1, 3, 4 and 5 refused
Appeal in relation to the motor driver's licence disqualifications imposed on 2 March 2017 allowed
Appeal otherwise dismissed

Category: A

Representation:

Counsel:

Solicitors:

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

Australian Unity Property Limited v City of Busselton [2018] WASCA 38

Bloomfield v The State of Western Australia [2017] WASCA 10

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Director of Public Prosecutions (Vic) v Leys [2012] VSCA 304; (2012) 44 VR 1

Director-General of Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306

Fawcus v The State of Western Australia [2013] WASCA 86

Fisher v The State of Western Australia [2015] WASCA 114

Forkin v The State of Western Australia [2013] WASCA 51

Fredericks v The State of Western Australia [2011] WASCA 270

Garraway v The State of Western Australia [2015] WASCA 240

Gaskell v The State of Western Australia [2018] WASCA 8

Giglia v The State of Western Australia [2010] WASCA 9

Holden v The State of Western Australia [2011] WASCA 238

Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586

Jneid v The State of Western Australia [2018] WASCA 67

Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Marshall v The State of Western Australia [2016] WASCA 171

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Medlen v The State of Western Australia [2011] WASCA 91

Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36

R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736

R v Wheeldon [No 1] [1978] FCA 11; (1978) 33 FLR 402

R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681

Robinson v The State of Western Australia [2007] WASCA 45

Roffey v The State of Western Australia [2007] WASCA 246

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245

Suleiman v The State of Western Australia [2017] WASCA 26

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285

The State of Western Australia v Butler [2009] WASCA 110

The State of Western Australia v Cairns [2006] WASCA 178

The State of Western Australia v Drew [2012] WASCA 86

The State of Western Australia v Gibbs [2009] WASCA 7

The State of Western Australia v Wells [2005] WASCA 23

Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1

Trajkoski v Director of Public Prosecutions (WA)  [2010] WASCA 119 ; (2010) 41 WAR 105

Wentworth Securities Ltd v Jones [1980] AC 74

Table of Contents

JUDGMENT OF THE COURT:

1. The appellant appeals against sentences of immediate imprisonment and against motor driver's licence disqualifications.
2. On 25 November 2015, the appellant pleaded guilty on indictment INS 213 of 2015 to one count of armed robbery, contrary to s 392(c) of the Criminal Code (WA).
3. On 28 January 2016, the appellant pleaded guilty to 33 summary charges pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). The charged offences included dangerous driving causing grievous bodily harm, aggravated reckless driving, careless driving, possession of prohibited drugs, fraudulently altering a prescription, giving false details to police, stealing, fraud, criminal damage, stealing a motor vehicle, trespass, breach of bail and various other traffic offences.
4. On 1 March 2016, Corboy J placed the appellant on a 12-month pre-sentence order (PSO). The appellant appeared at PSO review hearings on 29 April 2016, 29 August 2016, 7 October 2016, 8 November 2016 and 20 December 2016.
5. On 1 March 2016, his Honour also ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for a total effective period of 3 years in respect of two of the charges on the notice under s 32 of the Sentencing Act.
6. At the PSO review hearing on 20 December 2016, the appellant was remanded in custody for the preparation of a further report, having been remanded in custody in relation to other matters on 7 December 2016.
7. On 2 March 2017, Corboy J sentenced the appellant to a total effective sentence of 4 years 9 months' immediate imprisonment. His Honour ordered that the term of 4 years 9 months commence on 2 March 2017. A parole eligibility order was made.
8. On 2 March 2017, his Honour also ordered that the appellant be disqualified from holding or obtaining a motor driver's licence for a total effective period of 3 years 6 months in respect of the same two charges on which his Honour had imposed the total effective period of disqualification of 3 years on 1 March 2016.
9. Details of the charges and the sentences and disqualifications imposed are set out in the schedule to these reasons.
10. We would allow the appeal in relation to the motor driver's licence disqualifications imposed by Corboy J on 2 March 2017. Otherwise, the appeal should be dismissed.

1. As to the armed robbery offence, at about 1.20 am on 12 August 2014, the appellant drove a stolen motor vehicle to a Coles Express service station in Canning Vale. He entered the store with engine oil and fuel additives which he had stolen earlier from another service station. The appellant presented the stolen items to an employee at the Coles Express service station and requested a refund. The request was refused. The appellant demanded to speak to the manager of the store. Shortly afterwards the appellant spoke by telephone to an area manager. The manager refused to authorise a refund without the production of a receipt. The appellant continued to demand a refund from the employee. The appellant removed a pair of secateurs from a pocket of his trousers. He threatened the employee with the secateurs before returning them to his pocket. The employee felt threatened by the appellant's actions and decided, out of fear for his personal safety, to process the refund. The employee gave the appellant $180 cash. The appellant left the store. The following afternoon the appellant was arrested in relation to this and other offences.
2. The offences on the s 32 notice were committed between December 2013 and August 2014. In general, the appellant committed the stealing and fraud offences by stealing items from shops and then seeking a cash refund for the stolen items. The two motor vehicles stolen by the appellant belonged to people who were known to him. The reckless and careless driving offences were serious in that they involved speed significantly in excess of the applicable speed limit.
3. As to the dangerous driving occasioning grievous bodily harm offence, at about 2.35 pm on 12 June 2014, the appellant was driving a vehicle on Indian Ocean Drive in the Shire of Carnamah. The applicable speed limit was 110 km per hour. The appellant entered a section of the road at high speed. He failed to slow sufficiently to negotiate a right-hand bend. The appellant's vehicle left the road. He drove onto the left-hand gravel shoulder before losing control and crossing into the lane carrying traffic in the opposite direction. The appellant's vehicle collided with the victim's vehicle. The victim, Ms Wellington, suffered grievous bodily harm; in particular, a broken and dislocated left ankle, a fractured right femur, a fractured pelvis, compound fractures of her right arm, a fracture of her left arm and a collapsed lung. She was in hospital and rehabilitation for a considerable time. She had to use a wheelchair for a number of months. Ms Wellington has permanent residual injuries which require ongoing surgical procedures. The injuries and the trauma suffered by Ms Wellington have had a significant adverse impact on her life.
4. As to the stealing and fraud offences, the appellant's pattern of offending was entrenched. It reflected his substance abuse problems and his need to obtain money to purchase illicit drugs. The offences were repetitive, persistent and planned. There was an element of manipulation and, in the sentencing judge's view, a degree of cunning in the manner in which the offences were committed. For example, the offence charged in AL 2910/14, namely gaining a benefit by fraud, involved an elaborate fraud based on two false representations, a telephone call resulting in an attempt to obtain a receipt and the production of the stolen item for the purpose of requesting a refund.
5. As to the trespass and criminal damage offences, between the late afternoon of 10 March 2014 and the early morning of 11 March 2014 the appellant and other people entered a building site in Success. The appellant cut multiple quantities of copper cabling and removed them from the roof space of the house that was under construction. His actions caused significant damage. Some of the copper cabling was taken by his companions. The total value of the property stolen or damaged was about $13,500.

1. The appellant was born on 26 May 1985. He was aged 31 at the time of sentencing. His parents separated when he was aged 2. His mother died in 2004 when the appellant was aged about 19. The appellant is close to his father. He has a young daughter through a previous relationship. The daughter lives with her mother. The appellant does not know where they reside and has no contact with his daughter.
2. The appellant has a serious mental illness. Consequently, he has lived for a number of years on a disability support pension.
3. The information before the sentencing judge included a psychiatric report dated 5 March 2015 from Dr Adam Brett and a psychiatric report dated 27 February 2017 from Dr Stephen Patchett.
4. His Honour made the following findings in relation to the appellant's mental health:

(a) The appellant suffers from chronic paranoid schizophrenia complicated by poor compliance with medication, illicit substance abuse and a generalised anxiety disorder (ts 181).

(b) The appellant's mental illness was a contributing causal factor for the offending but was not the sole contributing factor (ts 182).

(c) The appellant's voluntary illicit substance abuse played a significant role in the appellant's offending (ts 182).

(d) The effect of the appellant's mental illness was that his judgment was impaired, his actions were impulsive and his ability to make logical and sound decisions was adversely affected (ts 182).

(e) The appellant's mental illness was so serious that general deterrence was of more limited relevance in sentencing him than for a person of normal health. However, general deterrence could not be discounted entirely as a relevant sentencing factor (ts 182).

(f) The decreased relevance of general deterrence had to be balanced against the risk of the appellant committing offences in the future and the danger he presents to the community by his offending (ts 183).

(g) The nature of the appellant's offending and the circumstances in which the offences were committed indicated that personal deterrence was a relevant factor in sentencing the appellant despite his mental illness (ts 183).

(h) The appellant was in part to blame for his own offending because of his voluntary illicit substance abuse, his non-compliance with his medication regime, and the fact that his offending was not spontaneous and did not appear to be part of a psychotic episode. Punishment was therefore a relevant sentencing consideration (ts 183).

(i) The appellant's mental health meant that his time in prison would be more difficult than it would be for a prisoner of normal health (ts 185).

1. The sentencing judge recited in his sentencing remarks the facts and circumstances of the offences and the appellant's personal circumstances including details of his relationships and his mental health.
2. His Honour noted a number of aggravating factors. First, the armed robbery offence and the dangerous driving occasioning grievous bodily harm offence were very serious in nature. Secondly, the stealing and fraud offences and the property damage offence were serious in nature. Thirdly, the appellant's offending was repetitive. Fourthly, the appellant's offending, especially the stealing and fraud offending, was persistent and planned. Fifthly, the offences concerned with the stealing of motor vehicles were serious in nature.
3. His Honour also noted the following mitigating factors. First, the pleas of guilty. Secondly, the connection between the appellant's serious psychiatric condition and his offending. Thirdly, the appellant's prospects of rehabilitation if he is able to overcome his addiction to methylamphetamine. Fourthly, the appellant had not previously been sentenced to a term of imprisonment. Fifthly, the appellant's time in custody will be more difficult for him than it would be for a prisoner in normal health. His Honour was of the view that the appellant would be vulnerable in prison. Sixthly, the appellant was remorseful for his offending.

1. The appellant relies on five grounds of appeal.
2. Ground 2 alleges in essence that the sentencing judge made an express error in the orders for disqualification of the appellant's driver's licence which His Honour imposed in respect of PE 97543/14 (the dangerous driving occasioning grievous bodily harm charge) and AL 2307/14 (the aggravated reckless driving charge). The alleged error is that his Honour made disqualification orders on 2 March 2017 in respect of the offences in question despite having previously made disqualification orders for those offences on 1 March 2016.
3. Ground 3 alleges in essence that the individual sentence of 2 years' immediate imprisonment imposed for the armed robbery offence was manifestly excessive.
4. Ground 5 alleges in essence that it was not reasonably open to his Honour to conclude that terms of immediate imprisonment were appropriate for the offences on the s 32 notice.
5. Ground 4 alleges in essence that his Honour made a number of errors in his findings concerning the seriousness of the appellant's offending.
6. Ground 1 alleges in essence that the total effective sentence of 4 years 9 months' immediate imprisonment infringed the first limb of the totality principle.
7. On 30 August 2017, Mazza JA granted leave to appeal on ground 2 and referred the application for leave to appeal on grounds 1, 3, 4 and 5 to the hearing of the appeal.

1. On 1 March 2016, the sentencing judge placed the appellant on a PSO in respect of all of the pending charges, including PE 97543/14 (dangerous driving occasioning grievous bodily harm, contrary to s 59(1) of the Road Traffic Act 1974 (WA)) and AL 2307/14 (aggravated reckless driving, contrary to s 60(1b) of the Road Traffic Act). His Honour made a number of ancillary orders for reparation, restitution and destruction and also disqualified the appellant from holding or obtaining a motor driver's licence for a period of 3 years in respect of PE 97543/14 and for a period of 12 months in respect of AL 2307/14. His Honour ordered that the two periods of disqualification run concurrently.
2. However, on 2 March 2017, His Honour disqualified the appellant from holding or obtaining a motor driver's licence for a period of 3 years in respect of PE 97543/14 and for a period of 6 months in respect of AL 2307/14. His Honour did not specify whether those periods of disqualification were to run concurrently or cumulatively. The prosecutor and defence counsel (neither of whom had appeared at the hearing on 1 March 2016) did not identify that periods of disqualification (and a different period of disqualification in respect of AL 2307/14) had already been imposed for those offences.
3. It is apparent (and counsel for the State accepted) that the sentencing judge has erred in one or other of two ways, namely:

(a) by imposing periods of disqualification on 1 March 2016, when it was not open to His Honour to do so, because the making of the PSO had the effect of adjourning the sentencing of the appellant until the 'sentencing day': s 33C(1) of the Sentencing Act; or

(b) by imposing periods of disqualification in respect of PE 97543/14 and AL 2307/14 on 2 March 2017, when his Honour had previously imposed periods of disqualification in respect of those offences on 1 March 2016.

1. Counsel for the appellant submitted that his Honour erred by imposing periods of disqualification on 2 March 2017 when he had already done so on 1 March 2016. Counsel for the State submitted that his Honour erred by imposing periods of disqualification on 1 March 2016, when it was not open to his Honour to do so, because the making of the PSO had the effect of adjourning the sentencing until the 'sentencing day': s 33C(1) if the Sentencing Act.
2. It is necessary, in evaluating those competing submissions, to examine the relevant statutory framework.
3. As to the Sentencing Act:

(a) Section 33(3) provides, in the context of summary charges pursuant to a notice under s 32 of the Sentencing Act, that a sentence imposed by a superior court (that is, the Supreme Court or the District Court) on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment.

(b) Part 3A is headed 'Pre-sentence order' and comprises s 33A to s 33Q.

(c) By s 33A(3), if s 33A applies, the court may make a PSO in respect of the offender if the court considers that the conditions specified in s 33A(3) are satisfied.

(d) Section 33B(1) states the nature of a PSO. It provides:

A PSO is an order that -

(a) the offender must appear before the court at the time and place specified in the PSO (the sentencing day) to be sentenced for the offence or offences to which the PSO applies; and

(b) while the PSO is in force the offender must comply with -

(i) the standard obligations in section 33D; and

(ii) such of the primary requirements in section 33E as the court imposes.

(e) Section 33B(2) stipulates that the sentencing day must not be more than two years after the date on which the PSO is made. Section 33B(3) states that a PSO comes into force on the day it is made and ceases to be in force on the sentencing day or when a court cancels it (whichever happens first).

(f) By s 33C(1), if a court makes a PSO in respect of an offender, the court must adjourn the sentencing of the offender to the sentencing day.

(g) By s 33E, every PSO must contain at least one of these primary requirements:

(i) a supervision requirement under s 33F;

(ii) a programme requirement under s 33G;

(iii) a curfew requirement under s 33H.

(h) Section 33J(1) provides, relevantly, that when an offender appears before the court on the sentencing day specified in the PSO the court is to sentence the offender.

(i) Section 33K(1) provides, relevantly, that a court sentencing an offender who has been subject to a PSO must take into account the offender's behaviour while subject to the PSO and may use any sentencing option available under pt 5 to the court in respect of the offence concerned.

(j) Part 5 is headed 'Sentencing options' and comprises s 39 to s 45.

(k) Section 39(6) provides:

A court sentencing an offender may also make a disqualification order under Part 15, and any such order is to be taken as being part of the sentence.

(l) Part 15 is headed 'Other orders forming part of a sentence' and comprises s 102 to s 108.

(m) Section 102 provides, relevantly:

(1) An order under this Part may be made in conjunction with any sentencing option available to a court sentencing an offender who is a natural person.

...

(3) An order under this Part forms part of the sentence.

(n) Section 4(1) states, relevantly, that in the Sentencing Act the term 'disqualification order' means an order made under pt 15.

(o) Section 103 provides:

(1) If a disqualification order is made in respect of an offender, the term of the disqualification does not elapse -

(a) while the offender is in custody serving any sentence of imprisonment;

(b) while the offender is appealing against the conviction or sentence that gave rise to the disqualification order.

(2) A disqualification order ceases to be in force when its term ends, or when a court cancels it, whichever happens first.

(p) Section 105 is concerned with disqualification orders in relation to motor driver's licences. It provides:

(1) A court sentencing an offender for a motor vehicle offence may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver's licence.

(2) The term is concurrent with -

(a) any other term for which the offender's driver's licence is or may be disqualified; or

(b) any term for which the offender's driver's licence is or may be suspended,

unless the court orders that the term is to be cumulative on those terms.

(3) The court must ensure that the details of the motor vehicle offence and the order are made known to the CEO as defined in the Road Traffic (Administration) Act 2008 section 4.

(4) This section does not affect -

(a) the right or duty of a court to disqualify, under a road law as defined in the Road Traffic (Administration) Act 2008 section 4, a person from holding or obtaining a driver's licence as defined in that section;

(b) the operation of section 18 of the Motor Vehicle (Third Party Insurance) Act 1943.

(5) In this section -

driver's licence has the same definition as in the Road Traffic (Administration) Act 2008 section 4;

motor vehicle has the same definition as in the Road Traffic (Administration) Act 2008 section 4;

motor vehicle offence means -

(a) an offence an element of which is the driving or use of a motor vehicle;

(b) stealing or attempting to steal or conspiring to steal a motor vehicle;

(c) receiving or attempting to receive or conspiring to receive a motor vehicle;

(ca) an offence where -

(i) a motor vehicle is used in the commission of the offence;

(ii) the commission of the offence is aided or facilitated by the use of a motor vehicle;

(d) an indictable offence (whether it was tried on indictment or not) where -

[(i), (ii) deleted]

(iii) a motor vehicle is used after the commission of the offence to provide, or to attempt to provide, a means for the offender to leave the place of the commission of the offence;

(iv) a motor vehicle is used by the offender after the commission of the offence to avoid, or to attempt to avoid, apprehension.

1. Section 4 of the Road Traffic (Administration) Act 2008 (WA), which appears in pt 1 div 2 of the Act, provides that in a 'road law', unless the contrary intention appears:

road law means any of the following enactments -

(a) this Act;

(b) the Road Traffic Act 1974;

(c) the Road Traffic (Authorisation to Drive) Act 2008;

(d) the Road Traffic (Vehicles) Act 2012.

1. As to the Road Traffic (Authorisation to Drive) Act 2008 (WA):

(a) Section 3(2) states that pt 1 div 2 of the Road Traffic (Administration) Act provides for the meanings of some terms and abbreviations in the Road Traffic (Authorisation to Drive) Act.

(b) Section 23A is concerned with the calculation of a period of disqualification from holding or obtaining a motor driver's licence. It provides:

(1) If a person is convicted by a court of an offence under a road law and, as a consequence, is disqualified from holding or obtaining a driver's licence, whether by an order of the court or operation of that law, the term of the disqualification does not elapse -

(a) while the person is in custody serving any sentence of imprisonment; or

(b) while the person is appealing against the conviction or sentence that gave rise to the disqualification.

(2) Subsection (1) applies to all disqualifications other than a disqualification that commenced before the day on which the Road Traffic Legislation Amendment Act 2016 section 20 comes into operation.

(c) Section 20 of the Road Traffic Legislation Amendment Act 2016 (WA) (which is referred to in s 23A(2)) came into operation on 22 September 2016.

1. As to the Road Traffic Act:

(a) Section 5 states that pt 1 div 2 of the Road Traffic (Administration) Act provides for the meanings of some terms and abbreviations in the Road Traffic Act.

(b) Section 59(1) creates, relevantly, the offence of dangerous driving occasioning grievous bodily harm.

(c) Section 59(3) provides, relevantly, that a person convicted on indictment of dangerous driving occasioning grievous bodily harm is liable to a fine of any amount and to imprisonment for a term not exceeding a specified maximum:

and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.

(d) At the material time, s 60(1b) provided that a person who drives a motor vehicle at a speed exceeding the speed limit set under the Road Traffic Act for that vehicle or the place where the driving occurs by 45 km/h or more commits an offence.

(e) At the material time, s 60(3)(a) provided that a person convicted of an offence against s 60 was liable to a fine not exceeding a specified maximum or to imprisonment for a term not exceeding a specified maximum:

and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 6 months.

(f) Section 106A is concerned with mandatory disqualifications from holding or obtaining a driver's licence. It provides:

(1) If this Act requires a court to disqualify an offender from holding or obtaining a driver’s licence -

(a) for a specific period provided in relation to the offence concerned (including permanent disqualification); or

(b) for a period not less than a minimum period provided in relation to the offence concerned; or

(c) for a period not less than a minimum period, and not more than a maximum period, provided in relation to the offence concerned,

the requirement is irreducible in mitigation and, irrespective of any sentence the court imposes on the offender, the court must disqualify the offender -

(d) for that period; or

(e) for a period not less than that minimum period; or

(f) for a period not less than that minimum period and not more than that maximum period.

(2) Subsection (1) has effect despite any other written law.

1. In our opinion:

(a) The sentencing judge was empowered, and properly exercised his discretion, on 1 March 2016 to impose the periods of disqualification in respect of PE 97543/14 and AL 2307/14, notwithstanding that his Honour made the PSO on that date (which had the effect of adjourning the sentencing of the appellant until the 'sentencing day': s 33C(1) of the Sentencing Act).

(b) His Honour erred by imposing periods of disqualification in respect of PE 97543/14 and AL 2307/14 on 2 March 2017, when his Honour had previously imposed periods of disqualification in respect of those offences on 1 March 2016.

1. We are of that opinion for the following reasons.
2. First, where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge;[1] R v Wheeldon [No 1];[2] Commissioner of Stamp Duties v Permanent Trustee Co Ltd;[3] Le Blanc v Queensland TAB Ltd;[4] Southside Autos (1981) Pty Ltd v Commissioner of State Revenue.[5]
3. In our opinion, the provisions of the Sentencing Act, the Road Traffic (Administration) Act, the Road Traffic (Authorisation to Drive) Act and the Road Traffic Act to which we have referred at [35] - [38] above comprise an overlapping legislative scheme in relation to the imposition, effect and consequences of a motor driver's licence disqualification.
4. Secondly, in the present case, the motor driver's licence disqualifications imposed by the sentencing judge on 1 March 2016 were imposed pursuant to the Road Traffic Act.
5. The offence charged in PE 97543/14 was dangerous driving occasioning grievous bodily harm, contrary to s 59(1) of the Road Traffic Act. By s 59(3), the appellant was liable, upon conviction for the offence, to a fine of any amount and to imprisonment for a term not exceeding a specified maximum. Further, s 59(3) conferred on his Honour, as 'the court convicting [the appellant]', the power to disqualify the appellant from holding or obtaining a motor driver's licence and, also, imposed on his Honour, as 'the court convicting [the appellant]', the duty to order that the appellant be disqualified for a period of not less than 2 years.
6. The offence charged in AL 2307/14 was aggravated reckless driving, contrary to s 60(1b) of the Road Traffic Act. By s 60(3)(a), the appellant was liable, upon conviction for the offence, to a fine not exceeding a specified maximum or to imprisonment for a term not exceeding a specified maximum. Further, s 60(3)(a) conferred on his Honour, as 'the court convicting [the appellant]', the power to disqualify the appellant from holding or obtaining a motor driver's licence and, also, imposed on his Honour, as 'the court convicting [the appellant]', the duty to order that the appellant be disqualified for a period of not less than 6 months.
7. Thirdly, in the present case, the motor driver's licence disqualifications imposed by the sentencing judge on 1 March 2016 were not imposed pursuant to the Sentencing Act.
8. In s 4(1) of the Sentencing Act the term 'disqualification order' is defined to mean an order made under pt 15 of that Act. Section 39(6) provides that a court sentencing an offender may also make a disqualification order under pt 15, and any such order is to be taken as being part of the sentence. Part 15 comprises s 102 to s 108. Section 102(1) provides that an order under pt 15 may be made in conjunction with any sentencing option available to a court sentencing an offender who is a natural person, and s 102(3) provides that an order under pt 15 forms part of the sentence. By s 105(1), a court sentencing an offender for a 'motor vehicle offence' may order that, for a term set by the court, the offender be disqualified from holding or obtaining a driver's licence. In s 105(5), the term 'motor vehicle offence' is defined, for the purposes of s 105, to include not only an offence, an element of which is the driving or use of a motor vehicle, but also, amongst other offences, stealing or attempting to steal or conspiring to steal a motor vehicle and receiving or attempting to receive or conspiring to receive a motor vehicle.
9. Section 102(1) and s 105(1) read with s 105(5) of the Sentencing Act confer on a court the power, but do not impose on a court a duty, to disqualify an offender from holding or obtaining a motor driver's licence where the court is sentencing an offender for a 'motor vehicle offence' (as defined in s 105(5)), even if the statutory provision which creates the 'motor vehicle offence' does not, as part of the penalty for the offence, include a motor driver's licence disqualification or otherwise empower the court to impose such a disqualification in connection with the offence.
10. The period of disqualification which s 102(1) and s 105(1) read with s 105(5) of the Sentencing Act empower a court to impose on an offender, who the court is sentencing for a 'motor vehicle offence' (as defined in s 105(5)), is unlimited. The court's power is not conditioned by a minimum or a maximum period of disqualification.
11. If s 102(1) and s 105(1) read with s 105(5) of the Sentencing Act were to be read in isolation, those provisions would on their face empower a court sentencing an offender for the offence of dangerous driving occasioning grievous bodily harm, contrary to s 59(1) of the Road Traffic Act, or the offence of aggravated reckless driving, contrary to s 60(1b) of the Road Traffic Act, to disqualify the offender from holding or obtaining a motor driver's licence for such period as the court thinks fit. However, s 102(1) and s 105(1) read with s 105(5) are not to be read and construed in isolation, but in the context of the overlapping legislative scheme to which we have referred.
12. Significantly, s 105(4)(a) of the Sentencing Act states that s 105 'does not affect ... the right or duty of a court to disqualify, under a road law as defined in the Road Traffic (Administration) Act 2008 section 4, a person from holding or obtaining a driver's licence as defined in that section'. A 'road law', as defined in s 4 of the Road Traffic (Administration) Act, includes the Road Traffic Act.
13. It is apparent from s 105(4) of the Sentencing Act that nothing in s 105 derogates from or otherwise affects the power and the duty conferred on a court by each of s 59(3) and s 60(3)(a) of the Road Traffic Act. Those provisions operate according to their terms and are unaffected by s 105 of the Sentencing Act.
14. On a proper construction of s 59 and s 60 of the Road Traffic Act, in the context of the Road Traffic Act as a whole, and pt 15 of the Sentencing Act, in the context of the Sentencing Act as a whole, the motor driver's licence disqualifications imposed by the sentencing judge, in the present case, on 1 March 2016 were not imposed pursuant to the Sentencing Act.
15. Fourthly, in the present case, the motor driver's licence disqualifications imposed by the sentencing judge on 1 March 2016 were not part of the sentences subsequently imposed by his Honour on the appellant.
16. It follows from our conclusion that the motor driver's licence disqualifications imposed by his Honour on 1 March 2016 were not imposed pursuant to the Sentencing Act, and that s 39(6) and s 102(3) of that Act, which apply to disqualification orders made under pt 15 and deem a disqualification order to form part of the sentence imposed on the offender, do not apply to the motor driver's licence disqualifications imposed in the present case on 1 March 2016.
17. No provision of the Road Traffic Act or any other 'road law', as defined in s 4 of the Road Traffic (Administration) Act, deems a motor driver's licence disqualification imposed under the Road Traffic Act to be part of the sentence imposed on the offender.
18. The power conferred and the duty imposed on a court by s 59(3) and s 60(3)(a) of the Road Traffic Act are enlivened upon 'conviction' of the offender for the offence. By contrast, the power conferred on a court under pt 15 of the Sentencing Act is enlivened when the court 'sentences' an offender. See, in particular, s 102(1) of the Sentencing Act, which refers to a court's power to make an order under pt 15 'in conjunction with any sentencing option available to a court sentencing an offender', and s 105(1), which refers to a court 'sentencing an offender for a motor vehicle offence'.
19. When a court convicts an offender for the offence of dangerous driving occasioning grievous bodily harm, contrary to s 59(1) of the Road Traffic Act, or the offence of aggravated reckless driving, contrary to s 60(1b) of the Road Traffic Act, the court is entitled to impose a motor driver's licence disqualification, in accordance with s 59(3) or s 60(3)(a) (as the case may be), immediately or at any time after recording the 'conviction'. The court is not bound to defer the imposition of a disqualification until the offender is sentenced for the offence. This is apparent from the text of s 59 and s 60 (in particular, the reference in those provisions to the imposition of the disqualification by the court 'convicting' the offender) and is consistent with the evident purpose or object of the legislation (namely, withdrawing the privilege of driving a motor vehicle from an offender who has committed a serious breach of the legislation).
20. Fifthly, accordingly, in the present case, his Honour was entitled to impose the motor driver's licence disqualifications he imposed on 1 March 2016. His Honour was not bound to defer the imposition of such disqualifications until the 'sentencing day' (referred to in s 33C(1) of the Sentencing Act) for the purposes of the PSO which his Honour made on 1 March 2016.
21. Sixthly, in the present case, his Honour was not entitled to impose a further or different period or periods of disqualification in respect of PE 97543/14 or AL 2307/14 after his Honour had imposed periods of disqualification in respect of those offences on 1 March 2016. His Honour had exercised his power and complied with his duty, pursuant to s 59(3) and s 60(3)(a) of the Road Traffic Act, on 1 March 2016 and his function in relation to disqualifying the appellant from holding or obtaining a driver's licence in relation to the offences in question had been performed. Accordingly, his Honour erred by imposing periods of disqualification in respect of PE 97543/14 and AL 2307/14 on 2 March 2017.
22. Ground 2 of the appeal has been made out. The periods of disqualification imposed by his Honour on 2 March 2017 must be set aside.
23. We will deal with two other matters before addressing the other grounds of appeal.
24. First, the principle that where a sentencing judge's discretion has miscarried in respect of one of the individual sentences forming part of the total effective sentence, the appellate court should set aside the total effective sentence (McGarry v The Queen;[6] The State of Western Australia v Cairns;[7] Sathitpittayayudh v The State of Western Australia[8]) does not apply, in the present case, either directly or by analogy. The periods of disqualification imposed on 2 March 2017 were imposed by his Honour in the purported exercise of the powers conferred by s 59(3) and s 60(3)(a) of the Road Traffic Act. Those periods of disqualification were not part of the sentences his Honour imposed on that date. See our reasoning in relation to the periods of disqualification imposed by his Honour on 1 March 2016.
25. This conclusion is consistent with previous decisions of this court in which a material error by a primary judge in imposing a motor driver's licence disqualification has not been treated as engaging the McGarry principle.[9]
26. Secondly, the relevant provisions of the Criminal Appeals Act 2004 (WA), for the purposes of this appeal, are as follows:
    1. Rights of appeal of offender

(1) An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the offender or any order made as a result of the conviction;

(c) a refusal to make an order that might be made as a result of the conviction.

...

1. Appeal against sentence etc., decision on

(1) This section applies in the case of an appeal commenced by an offender under section 23 ... against -

(a) the sentence imposed or any order made as a result of -

(i) a conviction on indictment; or

(ii) a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence;

(b) a refusal by a superior court to make an order that might be made as a result of such a conviction.

[(2) deleted]

(3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.

(4) The Court of Appeal may allow the appeal if, in its opinion -

(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed ...

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

...

1. Sentencing or re-sentencing on appeal

(1) If under this Act an appeal court decides to impose a sentence, it may do one or more of the following -

(a) order that the sentence is to be taken to have taken effect on a date before the date of the order;

(b) order that the sentence is to take effect on a date on or after the date of the order.

(2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

(3) If under this Act an appeal court decides to vary a sentence, it may do one or more of the following -

(a) vary the sentence as imposed;

(b) impose a different sentence involving a different sentencing option;

(c) order that the sentence is to be taken to have taken effect on a date before the date of the order;

(d) order that the sentence is to take effect on a date on or after the date of the order.

1. Section 23(1)(b) of the Criminal Appeals Act confers on an offender convicted of an offence on indictment a right of appeal to this court against the sentence imposed on the offender or any order made as a result of the conviction. Section 23(1)(b) confers two separate and distinct rights of appeal; namely, one against sentence and the other against any order made as a result of the conviction. The separate and distinct character of the two rights of appeal is expressly recognised by s 31(1)(a) of the Criminal Appeals Act which states, relevantly, that s 31 applies in the case of an appeal commenced by an offender under s 23(1)(b) against the sentence imposed or any order made as a result of a conviction on indictment.
2. The periods of disqualification imposed on the appellant, in the present case, were not part of the sentence imposed on him, but were an order made as a result of his conviction on the offences charged in PE 97543/14 and AL 2307/14. The appellant was entitled to appeal against the periods of disqualification imposed by his Honour on 2 March 2017, whether or not he also appealed against the sentences imposed by his Honour on that date.
3. Section 31 of the Criminal Appeals Act contains the following relevant provisions:

(a) s 31(3) states that, unless under s 31(4) this court allows the appeal, it must dismiss the appeal;

(b) s 31(4)(a) states that this court may allow the appeal if, in its opinion, in the case of an appeal referred to in s 31(1)(a), a different sentence should have been imposed; and

(c) s 31(5)(a) states that if this court allows an appeal referred to in s 31(1)(a), it must set aside the sentence and may instead impose a new sentence that is either more or less severe.

1. Section 41 of the Criminal Appeals Act provides, relevantly, that if, under that Act, an appeal court decides to impose a sentence or to vary or set aside a sentence, it is empowered to act by sentencing or resentencing in the manner specified in s 41.
2. Curiously, despite s 23(1)(b) of the Criminal Appeals Act conferring on an offender convicted of an offence on indictment a right of appeal to this court against the sentence imposed on the offender or any order made as a result of the conviction, and despite s 31(1)(a) of the Criminal Appeals Act expressly recognising the separate and distinct character of those two rights of appeal:

(a) neither s 31 nor any other provision of the Criminal Appeals Act expressly empowers this court to allow an appeal by an offender against any order made as a result of a conviction on indictment if, in its opinion, a different order or no order should have been made; and

(b) neither s 41 nor any other provision of the Criminal Appeals Act expressly empowers this court, consequent upon this court allowing the appeal, to make a different order or no order as a result of the conviction.

1. In Trajkoski v Director of Public Prosecutions,[10] Buss JA made the following observations (Owen JA agreeing) in relation to those features of the Criminal Appeals Act:

[An] 'order' made as a result of the conviction, referred to in s 23(1) of the Criminal Appeals Act, must itself be an order provided for or referred to in the Sentencing Act or, alternatively, be an order which is ancillary or incidental to the sentence imposed on the offender. This is apparent from s 31(4), s 31(5) and s 41 of the Criminal Appeals Act. By s 31(4)(a), this court may allow an appeal, in the case of an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, if 'a different sentence should have been imposed'. No reference is made in s 31(4) to any order made as a result of the conviction. By s 31(5), if this court allows an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, it must 'set aside the sentence' and may instead impose 'a new sentence that is either more or less severe'. Section 31(5) does not refer to any order made as a result of the conviction. Section 41 is concerned with sentencing or re-sentencing on appeal. It refers, relevantly, to imposing a sentence, varying or setting aside a sentence, and imposing a different sentence. Section 41 does not refer to this court (or any other appeal court) making any order that may be made as a result of the conviction.

1. By contrast, Jenkins J expressed the view in Trajkoski that the phrase 'any order made as a result of the conviction' in s 23(1)(b) of the Criminal Appeals Act is confined to orders which are referred to in s 39 of the Sentencing Act [140].
2. We are satisfied that, although a motor driver's licence disqualification imposed by a court under s 59 or s 60 of the Road Traffic Act is not part of the sentence imposed on the offender, the imposition of the period of disqualification is an order that is ancillary or incidental (in other words, auxiliary or supplementary) to the sentence. The order imposing the period of disqualification is therefore an 'order made as a result of the conviction' of the offender, within s 23(1)(b) of the Criminal Appeals Act, as explained by Buss JA (Owen JA agreeing) in Trajkoski [63].
3. The general principles of statutory construction were summarised by this court in Director-General of Department of Transport v McKenzie.[11]
4. The propriety of implying words into the statutory text has been an issue of longstanding controversy. See, for example, R v Young;[12] R v PLV;[13] Director of Public Prosecutions (Vic) v Leys;[14] Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd;[15] Australian Unity Property Limited v City of Busselton.[16]
5. In Wentworth Securities Ltd v Jones,[17] Lord Diplock specified three conditions that must be fulfilled in order to justify reading into a statute words which are not expressly included in it. First, it must be possible to determine from a consideration of the statute, read as a whole, 'precisely what the mischief was that it was the purpose of the Act to remedy' (105). Secondly, it must be apparent that the draftsperson and Parliament had 'by inadvertence overlooked, and so omitted to deal with, an eventuality that [was] required to be dealt with if the purpose of the Act was to be achieved' (105). Thirdly, it must be possible to state with certainty 'what were the additional words that would have been inserted by the [draftsperson] and approved by Parliament had their attention been drawn to the omission before the Bill passed into law' (105).
6. In Taylor v The Owners - Strata Plan No 11564,[18] French CJ, Crennan and Bell JJ reviewed the case law on the circumstances in which a court will be justified in construing a statutory provision as if it contained additional words and on whether a court may construe a statutory provision in a manner which has the effect of giving it an expanded operation.
7. French CJ, Crennan and Bell JJ said that, consistently with the High Court's rejection of the adoption of rigid rules in statutory construction, 'it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation' [37]. Their Honours elaborated:

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision (Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at 651 - 652 [9] per French CJ and Bell J). It is answered against a construction that fills 'gaps disclosed in legislation' (Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649 per Stephen J) or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature' (Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ, cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 115) [38].

1. French CJ, Crennan and Bell JJ referred to Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution[19]) and said that the Court of Appeal of New South Wales in Taylor was right to consider that satisfaction of each of those conditions could be treated as a prerequisite to reading the statutory provision in question as if it contained additional words before the Court of Appeal required satisfaction of a fourth condition of consistency with the wording of the provision [39]. However, their Honours added that it was unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient [39]. This was because 'the task remains the construction of the words the legislature has enacted' [39]. Their Honours continued:

In this respect it may not be sufficient that 'the modified construction is reasonably open having regard to the statutory scheme' (Director of Public Prosecutions (Vic) v Leys [2012] VSCA 304; (2012) 296 ALR 96 at 126 [96]) because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, '[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances' ((1997) [1997] HCA 53; 191 CLR 85 at 113. See also IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J) [39].

1. Finally, French CJ, Crennan and Bell JJ referred, with approval, to the comments of Lord Nicholls of Birkenhead in Inco Europe (592) that, even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was Parliament's underlying intention because the alteration to the statutory text in such a case may be 'too far-reaching' [40].
2. We are satisfied, on a proper construction of s 23, s 31 and s 41 of the Criminal Appeals Act in the context of that Act as a whole, that:

(a) The omission of an express power in s 31 for this court to allow an appeal by an offender against any order made as a result of a conviction on indictment if, in its opinion, a different order or no order should have been made, is a drafting error.

(b) Similarly, the omission of an express power in s 41 for this court to make substitutive and consequential orders if this court allows the appeal because, in its opinion, a different order or no order should have been made, is a drafting error.

(c) If the drafting errors are uncorrected, the errors would defeat the clearly expressed purpose or object of s 23(1)(b), namely that an offender convicted of an offence on indictment should have a right of appeal to this court against any order made as a result of a conviction, and not merely a right of appeal against the sentence imposed on the offender. For example, as we have explained, the motor driver's licence disqualifications imposed on the appellant pursuant to the Road Traffic Act were not part of the sentence imposed on him, but the imposition of the periods of disqualification was an order that was ancillary or incidental (in other words, auxiliary or supplementary) to the sentence. The order imposing the periods of disqualification was therefore an 'order made as a result of the conviction' of the appellant, within s 23(1)(b).

(d) It is possible to determine from a consideration of the Criminal Appeals Act, read as a whole, precisely what the relevant 'mischief' was that it was a purpose or an object of s 23, s 31 and s 41 to deal with, namely to enable this court to correct, on appeal, erroneous orders made in respect of an offender as a result of his or her conviction.

(e) It is apparent that the draftsperson and Parliament has by inadvertence overlooked, and so omitted to deal with, an eventuality that must be dealt with if that purpose or object is to be achieved.

(f) It is possible to state with certainty the additional words that would have been inserted by the draftsperson and approved by Parliament had their attention been drawn to the omission before the Bill was enacted.

(g) The additional words would not impermissibly expand the field of operation of s 23 read with s 31 and s 41; the additional words are consistent with the relevant purpose or object of s 23 read with s 31 and s 41; and the alteration to the statutory text is not too far-reaching.

1. We disagree with the view expressed by Jenkins J in Trajkoski that the phrase 'any order made as a result of the conviction', within s 23(1)(b) of the Criminal Appeals Act, is confined to orders which are referred to in s 39 of the Sentencing Act [140]. A disqualification order under pt 15 of the Sentencing Act is to be taken as being part of the sentence. See s 39(6) and s 102(3) of that Act. A reparation order under pt 16 of the Sentencing Act is not to be taken as being part of the sentence, but an offender may appeal against a reparation order as if it were part of the sentence imposed on him or her. See s 39(7) and s 110(1) and (6) of that Act. An order made under pt 17 of the Sentencing Act is not to be taken as being part of the sentence, but an offender may appeal against the order as if it were part of the sentence imposed on him or her. See s 39(8) and s 123(1) and (4) of that Act. The effect of her Honour's view is to restrict the rights of an offender under s 23(1)(b) of the Criminal Appeals Act to a single right of appeal to this court against the sentence imposed on the offender. That restriction is inconsistent with the text of s 23(1)(b) which, as we have mentioned, confers on an offender two separate and distinct rights of appeal. It is also inconsistent with the express recognition by s 31(1)(a) of the separate and distinct character of those two rights. The words 'or any order made as a result of the conviction', within s 23(1)(b), are not qualified by reference to the orders which are mentioned in s 39 of the Sentencing Act. Similarly, those words are not qualified by reference to orders that are to be taken as being part of the sentence or to orders that are not to be taken as being part of the sentence but in respect of which offenders may appeal as if the orders were part of the sentence. The effect of her Honour's view is to deprive the words 'or any order made as a result of the conviction', within s 23(1)(b), of any practical content or operation. That result is to be avoided especially where, as in the present case, the words in question confer a substantive right of appeal on a person who has been convicted of an offence and in respect of whom an order (that is not part of the sentence) has been made as a result of the conviction.
2. We also disagree with an alternative construction of s 31 of the Criminal Appeals Act to the effect that this court may only allow an appeal by an offender under s 23(1)(b) against an order made as a result of his or her conviction on indictment if this court is of the opinion that a different sentence, as distinct from a different or no order, should have been imposed. The alternative construction is inconsistent with the purpose or object, clearly expressed in s 23(1)(b), that an offender may appeal against any order made as a result of his or her conviction on indictment whether or not the offender also appeals against sentence. Also, as we have explained, an order made as a result of an offender's conviction on indictment will not necessarily be part of the sentence imposed on him or her.
3. It is true that s 31(4)(b) and s 31(6)(a) of the Criminal Appeals Act confer an express power on this court, in the context of an appeal referred to in s 31(1)(b) (namely, an appeal against a refusal by a superior court to make an order that might be made as a result of a conviction), to make any order that should have been made. However, we consider, for the reasons we have given at [81] - [83] above, that the proper construction of s 23, s 31 and s 41 is as set out in [85] below.
4. We are satisfied, on a proper construction of s 23, s 31 and s 41 of the Criminal Appeals Act in the context of that Act as a whole, that:

(a) in s 31(4)(a), the phrase 'a different sentence should have been imposed' should be read and understood as 'a different sentence should have been imposed or a different order should have been made';

(b) in s 31(5) line 2, the phrase 'set aside the sentence' should be read and understood as 'set aside the sentence or the order';

(c) in s 31(5)(a), the phrase 'impose a new sentence' should be read and understood as 'impose a new sentence or make a new order';

(d) in s 31(5)(b), the phrase 'imposed the sentence' should be read and understood as 'imposed the sentence or made the order'; and

(e) in s 41, references to 'sentence', 'a sentence', 'the sentence' or 'sentence A' should be read and understood as 'sentence or order made as a result of the conviction', 'a sentence or an order made as a result of the conviction', 'the sentence or the order made as a result of the conviction' or 'sentence A or order A' respectively.

1. Ground 3 challenges the individual sentence of 2 years' immediate imprisonment for the armed robbery offence on the basis that the sentence was manifestly excessive.
2. Counsel for the appellant submitted that the sentence was manifestly excessive having regard to:

(a) the early plea of guilty;

(b) matters personal to the appellant including his psychiatric condition;

(c) the appellant's compliance with the supervision and programme requirements while on the PSO;

(d) the appellant's compliance with the conditions of his bail up to March 2016;

(e) the offending was not planned or committed in company;

(f) the appellant did not have a history of violent offending; and

(g) sentences customarily imposed for similar offending.

1. After taking into account all facts and circumstances and all sentencing factors (including the mitigating factors) for the armed robbery offence, the sentencing judge arrived at a term of 2 years 6 months' immediate imprisonment. He then reduced the term to 2 years' immediate imprisonment to take account of time the appellant had spent in custody and to obviate the need to backdate the term.
2. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, 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 personal circumstances of the offender.
3. The maximum penalty for the offence of armed robbery is life imprisonment.
4. 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.
5. 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 or a total effective sentence infringes the first limb of the totality principle. 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.
6. 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.
7. The discretion conferred on sentencing judges is, of course, of fundamental importance. 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. See Lowndes v The Queen.[20]
8. In our opinion, although the appellant's offending, in the present case, was not within the most serious category of offences of armed robbery, his offending was nevertheless very serious in nature. The robbery occurred after midnight and was committed against a service station employee who was working alone. The appellant went to the service station armed with a pair of secateurs and the items for which he intended fraudulently to obtain a refund. Those facts indicate that there was some planning and premeditation. The employee felt threatened when the appellant produced the secateurs and processed a refund for the appellant's fraudulent claim out of fear for his personal safety. The employee was highly vulnerable. Appropriate punishment and personal and general deterrence were relevant sentencing factors.
9. The facts and circumstances of armed robbery offences vary significantly. Comparable cases can provide only general guidance. We are satisfied, after evaluating all of the facts and circumstances and all of the relevant sentencing factors in the present case (including the mitigating factors) that the term of 2 years' immediate imprisonment (reduced from 2 years 6 months' immediate imprisonment to take account of the time the appellant had spent in custody) is broadly consistent with sentences customarily imposed for similar offending. See, for example, the facts and circumstances, the sentencing factors and the sentences imposed in The State of Western Australia v Wells;[21] Medlen v The State of Western Australia;[22] Fredericks v The State of Western Australia;[23] The State of Western Australia v Drew;[24] Forkin v The State of Western Australia;[25] Fawcus v The State of Western Australia;[26] Fisher v The State of Western Australia;[27] Garraway v The State of Western Australia;[28] and Marshall v The State of Western Australia.[29]
10. A non-custodial sentence for the offence of armed robbery is, as a matter of fact, exceptional. A term of immediate imprisonment is ordinarily the only appropriate disposition. See Robinson v The State of Western Australia;[30] Medlen [14]; Fredericks [18].
11. It is well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
12. The effect of mental illness or psychological difficulties (falling short of insanity) on the kind or length of sentence to be imposed has been considered by the Court of Criminal Appeal and this court on numerous occasions. See the cases and the summary of the applicable principles in Suleiman v The State of Western Australia.[31]
13. We are satisfied that, in the present case, the facts and circumstances and the sentencing factors (including the mitigating factors) relevant to the appellant's offending were not, as a matter of fact, exceptional and that the only appropriate disposition was a term of immediate imprisonment.
14. In our opinion, after taking into account:

(a) the maximum penalty for the offence of armed robbery;

(b) the degree of seriousness of the appellant's offending;

(c) the sentencing pattern revealed by previous cases with at least some features comparable to the appellant's offending;

(d) the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind;

(e) the appellant's personal circumstances;

(f) the mitigating factors; and

(g) all other relevant sentencing considerations,

the sentence of 2 years' immediate imprisonment (reduced from 2 years 6 months' immediate imprisonment to take account of time the appellant had spent in custody) was not unreasonable or plainly unjust.

1. Ground 3 is without merit.

1. Ground 5 challenges the sentencing judge's imposition of terms of immediate imprisonment in respect of most of the offences on the s 32 notice.
2. Counsel for the appellant submitted that sentences other than immediate imprisonment were appropriate for those offences. In particular, it was submitted that fines should have been imposed.
3. Section 6(1) of the Sentencing Act provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. By s 6(2), the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors. Section 6(4) provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.
4. We are satisfied that it was reasonably open to the sentencing judge to conclude that terms of imprisonment were warranted for the relevant offences on the s 32 notice in that the seriousness of those offences was such that only imprisonment could be justified. The offences in question involved offending against multiple victims over an eight-month period. The seriousness of each offence must be evaluated in the context that it was not isolated, but was part of a sustained course of offending. Each of the offences was of sufficient seriousness to warrant a term of imprisonment having regard to all of the facts and circumstances and all of the relevant sentencing factors (including the mitigating factors). A term of imprisonment for each of the relevant offences was not unreasonable or plainly unjust.
5. It was not open to his Honour to suspend or conditionally suspend any of the terms of imprisonment for the offences in question. Suspended imprisonment and conditionally suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act. The appellant was serving or was yet to serve a term of immediate imprisonment in respect of the armed robbery offence.
6. Ground 5 is without merit.

1. Ground 4 challenges the correctness of a number of findings made by the sentencing judge concerning the seriousness of the appellant's offending.
2. Counsel for the appellant submitted that his Honour erred in finding that:

(a) the offences of armed robbery and dangerous driving occasioning grievous bodily harm were very serious in nature;

(b) the stealing and fraud offences and the property damage offence were serious in nature;

(c) the appellant's offending was repetitive;

(d) the stealing and fraud offences were persistent and planned; and

(e) the stealing a motor vehicle offences were serious in nature.

1. Those complaints are, in substance, particulars of the errors alleged in ground 1 and ground 3 of the appeal. A sentencing judge's characterisation of the seriousness of an offender's offending involves an evaluative judgment, and not a finding of fact. See Holden v The State of Western Australia.[32]
2. In any event, for the following reasons, there is no merit in the appellant's complaints in ground 4.
3. It is apparent, on a fair reading of the sentencing judge's sentencing remarks as a whole, that his Honour did not characterise the armed robbery offence, the dangerous driving occasioning grievous bodily harm offence, the stealing and fraud offences, the property damage offence or the stealing a motor vehicle offences as very serious or serious (as the case may be) examples of offences of that kind. Rather, his Honour expressed the view that:

(a) armed robbery and dangerous driving causing grievous bodily harm are, of their nature, very serious offences; and

(b) stealing and fraud, property damage and stealing a motor vehicle are, of their nature, serious offences.

1. The view expressed by his Honour was correct.
2. Further, we are not persuaded that the armed robbery offence was not serious or was towards the lower end of the scale of seriousness. Also, we do not accept that the armed robbery offence was unplanned. As we have mentioned, in the context of ground 3, the armed robbery offence involved some planning and premeditation. Although the appellant's offending was not within the most serious category of offences of armed robbery, his offending was nevertheless very serious in nature.
3. Similarly, we are not persuaded that the dangerous driving occasioning grievous bodily harm offence was not serious or was towards the lower end of the scale of seriousness. Although the appellant's offending was not within the most serious category of offences of that kind, his offending was nevertheless very serious in nature.
4. In our opinion, the stealing and fraud offences, considered as a whole, were serious in nature, repetitive, persistent and planned. On not less than 10 occasions during an eight-month period the appellant stole items from businesses and then presented the items to staff of the businesses for cash refunds. The appellant's method of offending was, as the sentencing judge noted, cunning. The offending was also brazen. We are not persuaded that his Honour's characterisation of the offending was inaccurate or inappropriate.
5. In any event, even if there was any merit in the appellant's complaints, in the context of ground 4, we are of the opinion that different sentences should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.
6. Ground 4 fails.

1. Ground 1 challenges the total effective sentence of 4 years 9 months' immediate imprisonment on the basis that the sentence infringed the first limb of the totality principle.
2. Counsel for the appellant submitted that the total effective sentence was disproportionate to the appellant's overall criminality having regard to:

(a) the early pleas of guilty;

(b) matters personal to the appellant including his psychiatric condition;

(c) the appellant's compliance with the supervision and programme requirements while on the PSO;

(d) the appellant's compliance with the conditions of his bail up to March 2016;

(e) the appellant's remorse; and

(f) sentences customarily imposed for similar offending.

1. A ground of appeal which alleges that a total effective sentence infringes the totality principle asserts the existence of an implied error. 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.
2. 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.[33] 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;[34] Gaskell v The State of Western Australia.[35]
3. The maximum penalty for the offence of dangerous driving occasioning grievous bodily harm, in the circumstances in which the appellant committed the offence, is 7 years' imprisonment and a fine of any amount.
4. The dangerous driving occasioning grievous bodily harm offence committed by the appellant was a serious example of the offence. We have already set out the facts and circumstances of the offending and the injuries and disabilities suffered by the victim.
5. There is no tariff for offences of this kind because of the great variation that is possible in the circumstances of the offending and the offenders. See The State of Western Australia v Butler;[36] Timbrell v The State of Western Australia [No 2].[37]
6. Recently, in The State of Western Australia v Berry,[38] this court reviewed the range of sentences that have been imposed for dangerous driving occasioning grievous bodily harm offences.
7. We are satisfied that the sentence of 1 year 6 months' immediate imprisonment imposed on the appellant, in the present case, is broadly consistent with sentences customarily imposed for similar offending.
8. We have previously examined the facts and circumstances of the armed robbery offence, the stealing and fraud offences, the stealing a motor vehicle offences and the trespass and criminal damage offences committed by the appellant.
9. We are satisfied that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, for some of the individual sentences imposed by the sentencing judge to be served cumulatively. The appellant committed a number of separate and distinct offences against a number of different victims.
10. Counsel for the appellant's submissions emphasise the appellant's psychiatric condition as a mitigating factor. We have summarised his Honour's findings in relation to the appellant's mental health at [19] above. The appellant does not allege that any of those findings was erroneous. Indeed, the appellant does not allege that his Honour made any express error in relation to the appellant's psychiatric condition or its significance as a sentencing factor. An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Jneid v The State of Western Australia.[39] The appellant does not allege that his Honour made an express appealable error of that kind.
11. In Suleiman, Buss P (Mazza & Mitchell JJA agreeing) said:

In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].

Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) 14, adopted and emphasised by Gleeson CJ in Engert (71) [62] - [63].

1. We are satisfied that his Honour took the appellant's mental health into account in the sentencing process in accordance with the applicable principles summarised in Suleiman [59] - [63]. No error is apparent.
2. In our opinion, after taking into account:

(a) the maximum penalty for each offence;

(b) the degree of seriousness of each of the offences;

(c) the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;

(d) the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;

(e) the appellant's personal circumstances;

(f) the mitigating factors; and

(g) all other relevant sentencing considerations,

the total effective sentence of 4 years 9 months' immediate imprisonment was not unreasonable or plainly unjust.

1. The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in reasonably comparable cases.
2. Error by the sentencing judge in the exercise of his discretion should not be inferred, based on the first limb of the totality principle, from the sentencing outcome.
3. Ground 1 is without merit.

1. As we have mentioned, leave to appeal on ground 2 has already been granted. Leave to appeal on grounds 1, 3, 4 and 5 should be refused.
2. The appeal in relation to the motor driver's licence disqualifications imposed by his Honour on 2 March 2017 should be allowed and those disqualifications should be set aside. Otherwise, the appeal should be dismissed.
   

SCHEDULE

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS

31 JULY 2018

[1] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726 (Griffith CJ).
[2] R v Wheeldon [No 1] [1978] FCA 11; (1978) 33 FLR 402, 405 - 406 (Bowen CJ, Blackburn & Fisher JJ).
[3] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 - 724 (Kirby P).
[4] Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42] (Muir J).
[5] Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64] (Buss JA).
[6] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[7] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[8] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] (Hall J; McLure P & Mazza JA agreeing).
[9] See, for example, The State of Western Australia v Gibbs [2009] WASCA 7 and Bloomfield v The State of Western Australia [2017] WASCA 10. In both of those cases the period of disqualification was set aside on appeal and a new period of disqualification was imposed.
[10] Trajkoski v Director of Public Prosecutions (WA)  [2010] WASCA 119 ; (2010) 41 WAR 105 [63].
[11] Director-General of Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306 [45] - [48] (Buss P; Murphy JA & Beech J agreeing).
[12] R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 [3] - [37] (Spigelman CJ).
[13] R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 [80] - [88] (Spigelman CJ; Simpson J & Smart AJ agreeing).
[14] Director of Public Prosecutions (Vic) v Leys [2012] VSCA 304; (2012) 44 VR 1 [45] - [111] (Redlich & Tate JJA & T Forrest AJA).
[15] Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 [124] - [129] (Buss JA).
[16] Australian Unity Property Limited v City of Busselton [2018] WASCA 38 [86] - [91] (Buss P, Murphy & Mitchell JJA).
[17] Wentworth Securities Ltd v Jones [1980] AC 74.
[18] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531.
[19] Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, 592.
[20] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
[21] The State of Western Australia v Wells [2005] WASCA 23.
[22] Medlen v The State of Western Australia [2011] WASCA 91.
[23] Fredericks v The State of Western Australia [2011] WASCA 270.
[24] The State of Western Australia v Drew [2012] WASCA 86.
[25] Forkin v The State of Western Australia [2013] WASCA 51.
[26] Fawcus v The State of Western Australia [2013] WASCA 86.
[27] Fisher v The State of Western Australia [2015] WASCA 114.
[28] Garraway v The State of Western Australia [2015] WASCA 240.
[29] Marshall v The State of Western Australia [2016] WASCA 171.
[30] Robinson v The State of Western Australia [2007] WASCA 45 [21] (Wheeler JA).
[31] Suleiman v The State of Western Australia [2017] WASCA 26 [59] - [63] (Buss P; Mazza & Mitchell JJA agreeing).
[32] Holden v The State of Western Australia [2011] WASCA 238 [10] (McLure P; Buss JA & Mazza J agreeing).
[33] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P and Miller JA agreeing).
[34] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[35] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).
[36] The State of Western Australia v Butler [2009] WASCA 110 [7] (Wheeler JA).
[37] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1 [44] (Buss JA; Hall J agreeing).
[38] The State of Western Australia v Berry [2016] WASCA 113; (2016) 76 MVR 285.
[39] Jneid v The State of Western Australia [2018] WASCA 67 [98] (Buss P, Mazza JA & Chaney J) and the cases there cited.
[40] This sentence was fixed so as to take into account time the appellant had spent in custody on remand: ts 3, 187.