When applying the totality principle to sentences imposed under the post-31 August 2003 WA sentencing regime, the majority held that sentencing judges should compare the aggregate sentence with what the equivalent pre-amendment sentence would have been, to ensure the aggregate is not more than two-thirds of the total that would have been regarded as just and appropriate before the transitional provisions. Murray AJA disagreed, holding the totality question should be answered by reference to the aggregate term actually imposed. Significant disparity between co-offenders charged under different statutory provisions (Criminal Code s 146 vs Police Act s 67(1)) for the same factual escape may give rise to a justifiable sense of grievance, even where the difference in statutory maxima partly explains the disparity.
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