KIRK -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 70

[2026] WASCA 70 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KIRK -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 70 CORAM : THOMSON P HALL JA HEARD : 20 MAY 2026 DELIVERED : 27 MAY 2026 FILE NO/S : CACR 132 of 2025 BETWEEN : DESMOND LEE KIRK Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : CORMANN DCJ File Number : IND 1741 of 2024 Catchwords: Criminal law - Appeal against sentence - Doing an act with intent to harm any person, as a result of which the life, health or safety of another person was, or was likely to be, endangered, contrary to s 304(2) of the Criminal Code (WA) - -- 1 of 18 -- [2026] WASCA 70 Page 2 Where appellant shot a gun at police in the course of a high speed pursuit - Whether total effective sentence of 5 years' imprisonment breaches totality principle Legislation: Criminal Code (WA), s 304(2) Result: Application to adduce additional evidence refused Leave to appeal refused Appeal dismissed Category: B Representation: Counsel: Appellant : H P K Kopsen Respondent : No appearance Solicitors: Appellant : Paul Catalano Legal Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Cheeseman v The State of Western Australia [2023] WASCA 78 Forrest v The State of Western Australia [2019] WASCA 172 Hinkley v The State of Western Australia [2014] WASCA 122 Kabambi v The State of Western Australia [2019] WASCA 44 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 Penny v The State of Western Australia [2016] WASCA 52 Quirk v The State of Western Australia [2019] WASCA 76 Rinaldi v The State of Western Australia [2007] WASCA 53 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 The State of Western Australia v Popal [2020] WASCA 200 -- 2 of 18 -- [2026] WASCA 70 Page 3 The State of Western Australia v Tulloch [2025] WASCA 17 Vander Waide v The State of Western Australia [2019] WASCA 148 Wellstead v The State of Western Australia [2019] WASCA 130 -- 3 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: 1 The appellant was convicted on his plea of guilty of two counts of doing an act with intent to harm any person, as a result of which the life, health or safety of another person was, or was likely to be, endangered, contrary to s 304(2) of the Criminal Code (WA) (the Code). The two counts arose out of a single incident in which the appellant used a firearm to shoot at a police vehicle, in which were two police officers, during the course of a pursuit. The appellant was sentenced to 5 years' imprisonment on each count, concurrent. Accordingly, the total effective sentence was 5 years' imprisonment. He now seeks leave to appeal against that sentence. 2 There is one ground of appeal. That ground alleges that 'the sentence' was manifestly excessive. Whilst counsel referred in oral submissions to each of the sentences being manifestly excessive, since they are wholly concurrent the challenge by the appellant is, in substance, to the total effective sentence. 3 Leave to appeal is required for each ground of appeal. This court cannot grant leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless leave to appeal is granted on at least one ground of appeal, the appeal is taken to have been dismissed.1 4 For the reasons that follow, the single ground of appeal does not have a reasonable prospect of succeeding. Leave to appeal should be refused, and the appeal dismissed. The facts 5 At 1.07 pm on 11 January 2024, the appellant was driving a stolen Mazda utility vehicle northbound along Albany Highway in Kelmscott.2 The vehicle had been reported as stolen from an address in Byford between 8.15 am and 8.30 am that morning. 6 The Mazda utility was captured on an automatic number plate recognition camera, and police resources were directed to attempt to stop the vehicle and apprehend the driver. Two officers in a marked police vehicle located the Mazda utility and activated their emergency lights and sirens. They pursued the Mazda utility at high speed. The appellant failed to stop and evaded police. Police continued pursuing 1 Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3). 2 ts 53. -- 4 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 5 the appellant over an approximately one-hour period. A police helicopter was also engaged. 7 On police air wing footage, the Mazda utility was recorded turning right on Keirnan Street in Cardup, heading westbound. The appellant can be seen on the footage leaning out of the vehicle. When the appellant turned down Keirnan Street he slowed to 60 km - 80 km per hour.3 He then held a firearm out of the window and pointed it towards the right-side of the vehicle he was driving. 8 The two police officers in the pursuing police vehicle saw the firearm. At that time, the police vehicle was approximately 60 m - 80 m behind the appellant's vehicle. 9 After driving a little further, the appellant angled the firearm around towards the rear of his vehicle and discharged it once through the rear windscreen. The pursuing police officers observed a hole in the rear windscreen, which later shattered. At this point, the police vehicle was around 100 m behind the appellant's vehicle. 10 In response to the firearm being discharged, the police officers backed off to place more distance between themselves and the appellant.4 The police helicopter remained above the appellant, providing updated communications to the officers on the ground, and recording the pursuit by camera. 11 The appellant was later apprehended by police. A rifle found in the appellant's possession on his arrest was examined.5 The rifle had been modified at some unknown time to remove the buttstock. The firearm was functional and passed all safety checks. A spent bullet cartridge was found in the bottle holder section of the internal driver's door pocket of the Mazda utility. It was determined that the cartridge was from a bullet fired from the rifle. There was no other ammunition, either in the rifle or the vehicle. 12 The appellant was charged with two offences contrary to s 304(2) of the Code, one in relation to each of the police officers in the pursuing vehicle. For the purposes of s 304, it was accepted by the appellant that he had an intent to endanger the safety of the two police officers, though he did not intend to endanger their lives. It was accepted that he also had an intent to prevent or hinder the doing of an act by the two 3 ts 53. 4 ts 53. 5 ts 54. -- 5 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 6 police officers, namely the pursuit of the appellant, in circumstances where the police were lawfully entitled to do that act. Personal circumstances 13 The appellant was aged 38 at the time of sentencing. 14 The appellant is the youngest of two children born to his parents' union. He has a sister who is two years his senior. When the appellant was 3 years old, his father passed away from lung cancer. 15 The appellant recalls exhibiting challenging and dysfunctional behaviours as a child and was diagnosed with attention deficit hyperactivity disorder (ADHD) at the age of 7. He reported being prescribed with dexamphetamine medication for his symptoms, which he took until the age of 14. 16 The appellant did not do well at school and described himself as 'a bit of an outcast'. When he was 13 years old, he was sent to live with an uncle in Eneabba and began to attend a local school in that town. He did not enjoy living in Eneabba and decided to take his uncle's vehicle and drive back to Perth. He was then homeschooled for a period, with his maternal grandmother flying from Queensland to assist. He recalled that his grandmother was strict and offered structure and guidance during this period. However, his grandmother died suddenly from a stroke while the family was on holiday in Albany. 17 After completing school at age 15, the appellant undertook further education at TAFE. He commenced horticulture and woodworking courses. He did not finish these courses. He then obtained employment in a variety of roles, including car air conditioning installation, fencing, and working in a scrap metal yard. He eventually found more stable work at a truck wheel alignment firm and maintained this employment for approximately five years. When he moved residence in 2015, he was unable to continue travelling to work and became unemployed. He has not worked since that time. There were letters of support from two associates, one of which indicated that the appellant had an offer of employment on his release. 18 The appellant's experiences with drug and alcohol began at age 13, when he started to experiment with cannabis. This use continued for approximately 10 years, until he began to experience paranoid thoughts when under the influence of the drug. He began to drink alcohol at age 16, and that use continued until he was approximately 23 years old. -- 6 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 7 He decided to cease using alcohol due to associated problems, including offending behaviour. 19 After quitting cannabis and alcohol use, the appellant had a period where he did not commit further offences and maintained employment while completing his traineeship. Between the ages of 23 and 28, he was in a long-term relationship. After the relationship breakdown and loss of employment, the appellant connected with old school friends who were using amphetamines. This led to the appellant using that drug, though he experienced paranoia whilst doing so. He also became involved with an outlaw motorcycle gang. The appellant engaged with a rehabilitation program in 2020, in which he was said to have performed extremely well, though he later relapsed into regular drug use. 20 The appellant reports that his mental health began to deteriorate in 2023. Medical reports referred to his ADHD, but no other diagnosed condition. On one occasion, he presented to Bentley Hospital and reported paranoia but was not admitted. 21 The appellant has a very lengthy criminal history. His adult record includes offences of stealing a motor vehicle, reckless driving, aggravated burglary, failing to stop after an accident, criminal damage, assaulting a public officer, common assault, threats to injure, possession of an unlicensed firearm and ammunition, possession of stolen or unlawfully obtained property, breach of a violence restraining order, driving without authority, fraud, and aggravated armed robbery. He has been imprisoned on multiple occasions between 2005 and 2020. As at 11 January 2024, the appellant was serving a conditional suspended sentence of imprisonment for earlier offending of a different nature. 22 The appellant was charged with other offences arising out of the incident on 11 January 2024, including failing to stop, driving without authority, stealing a motor vehicle, being armed in a way that may cause fear, causing fear with an object to people in a conveyance, and aggravated reckless driving. He was sentenced to a total of 10 months' imprisonment for the latter two of these offences in the Magistrates Court on 22 January 2025, backdated to 11 January 2024. He was fined for the other offences. He had completed the 10-month sentence when he came to be sentenced for the offences that are the subject of this appeal. -- 7 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 8 23 The appellant pleaded guilty on what was to have been the first day of his trial. There were some negotiations as to the facts, but it was accepted that it was open to the appellant to enter pleas at a much earlier stage. 24 In sentencing submissions, it was put on behalf of the appellant that he had obtained the ute and the rifle from an associate earlier that day. He took the rifle for self-protection because he was feeling threatened. It was said that this feeling was tied up with paranoia that he experiences due to mental health issues, though it was not suggested that this was causative of the offences. He discharged the rifle once in the general direction of the police, without aiming at them specifically. He accepts that this endangered the safety of the officers and that he wanted to scare and hinder the police who were pursuing him. 25 Also in sentencing submissions, it was submitted that the appellant had spent much of his time on remand in lock-down conditions at Hakea Prison. Sentencing remarks 26 As the ground of appeal alleges implied error, it is not necessary to examine the sentencing judge's remarks in great detail. However, it is important to record her Honour's findings, none of which are disputed. 27 The sentencing judge said that the appellant's pleas of guilty were late, having been entered on the first day of his scheduled trial. However, it was acknowledged that the pleas had avoided the need for a trial and for the witnesses to give evidence. The trial had been set down for three days. Her Honour concluded that a discount of 10%, pursuant to s 9AA of the Sentencing Act 1995 (WA), was appropriate. 28 As to the seriousness of the offence, the sentencing judge said:6 I have concluded the offending is very serious for the following reasons. You discharged a rifle through the back windscreen of a stolen vehicle during lawful pursuit of you by West Australian police officers in broad daylight and on public roads. This occurred in circumstances where you have admitted, by your plea of guilty as was the fact, that by your act the lives[,] health or safety of the two officers was, or was likely, to be endangered. 6 ts 93 - 94. -- 8 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 9 If their vehicle had been hit and/or the officers attempted to swerve, this could have caused [an] accident. They could have sustained critical or serious injury or death. I accept, for the purposes of assessing the seriousness of your offending, that the firearm was not aimed at the police nor discharged at close range. But nonetheless, you do concede, through your counsel, that you aimed it in the general direction. And of course, your act had the potential to result in serious injuries or death given the officers were in pursuit of you. You were in a vehicle chase on the roads. And you were attempting to evade the police. In that respect, through your counsel, you say you wanted to scare and hinder the police from pursuing you. And you accept that you endangered their safety and that you intended to do so in the hope that they would back off and you could escape. I find, consistent with your accepted intention, that your intent was to harm by hindering or preventing the officers from doing the act that they were lawfully entitled to do. And that was the pursuit of you in a stolen vehicle to apprehend you, and that, in that respect, you were trying to escape them and the consequences of your conduct. It means that today I sentence you on the basis that you intentionally discharged the firearm with a very real intent to endanger the safety of the officers who were pursuing you and to cause harm in the sense of attempting to prevent them in the lawful discharge of their duties. 29 The sentencing judge noted that the appellant had an extensive criminal record and was subject to a conditional suspended imprisonment order at the time of the offences. This reflected blatant disregard of lawful orders by the appellant. Whilst her Honour accepted that the criminal history did not aggravate the offences, it did underscore the need for personal deterrence. 30 The sentencing judge then went on to consider further factors relevant to the seriousness of the offences:7 As to the other matters that I have considered in assessing the seriousness of your offending, I accept that no ammunition was found on you or in the vehicle, [save] for a spent bullet cartridge inside the driver's door of the vehicle, but which your counsel submits was not fireable by the same rifle that you used, in any event, and so you were not otherwise further armed in that respect.8 I've also had regard to the actions and reactions of the police officers, including by reference to the bodycam footage and the evident concern 7 ts 94 - 95. 8 This comment appears to relate to another cartridge found in a bumbag. Any error is of no consequence as it could only favour the appellant. -- 9 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 10 for their safety and that of the community by your actions and conduct, but I otherwise accept - for the purposes of sentencing - that no bodily harm was caused to any victim and that no injuries were ultimately sustained by any person, and they are relevant matters in assessing the seriousness of the offending. Ultimately, having accounted for all the various factors, I have concluded the offending in the discharge of the rifle out the back windscreen while being lawfully pursued by West Australian Police, cannot properly be considered anything other than very serious. 31 The sentencing judge acknowledged that the appellant had had a period of abstinence and non-offending in his life, and that he had undertaken a White Haven Clinic rehabilitation course in 2020. However, she said that it was troubling, and a significant setback, that the appellant had returned to serious offending. Her Honour said that she considered that the appellant remained at high risk of reoffending. 32 As to mitigating factors, in addition to pleading guilty, her Honour accepted that the appellant had shown some remorse and some insight into the wrongfulness of his conduct. However, she said that the insight took some time, although the appellant had indicated regret for having put the police officers' safety at risk when they were in the line of their lawful duties. Her Honour found that there was no evidence as to any recent steps towards rehabilitation, though she accepted that the appellant was capable of being a productive member of the community. She noted that there may be undiagnosed psychological issues, but there was no suggestion that they reduced the appellant's liability for this offending. She accepted that the appellant had an opportunity to pursue gainful employment and stable living in the future, and that he had received a number of favourable references. 33 The sentencing judge concluded her remarks by saying:9 Your actions were serious, they were dangerous and they were unlawful, and it's offending that will not be tolerated in our community, and that a term of immediate imprisonment is the only option that I have, has been properly conceded by you yesterday, through your counsel. 34 The sentencing judge then imposed sentences of 5 years' imprisonment on each count, which she said she had reduced for totality reasons. Her Honour made those sentences concurrent 'because 9 ts 97. -- 10 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 11 of the [interrelated] nature of the conduct in both counts',10 and because they related to a single shot and a single act of endangering life, health and safety. The total sentence was backdated to 11 November 2024 to take into account time spent in custody in respect of these offences. An order was made that the appellant be eligible for parole. Ground of appeal 35 There is one ground of appeal. It is as follows: 1. The sentence under the Indictment was manifestly excessive given the seriousness of the offending and the appellant's circumstances both aggravating and mitigating. 36 Although the ground refers to a single sentence being manifestly excessive, it is apparent from the written and oral submissions that the challenge is to the total effective sentence. In effect, the appellant's contention is that the total sentence breached the first limb of the totality principle because it was disproportionate to the overall offending. Appellant's submissions 37 The appellant submits that, whilst the offences were serious, the following factors justify appellate intervention:11 1. That the intent of the appellant was only to endanger the safety of the officers. This is less serious that an intent to endanger life or health, or to cause bodily harm. 2. That the offences occurred in the context of the appellant's deteriorating mental health at the time. 3. That the appellant pleaded guilty and demonstrated remorse. 4. That the appellant's conditions of imprisonment were onerous. 38 The appellant accepts that there is no hierarchy of the types of intent to harm in s 304(3) but submits that in real terms an intent to cause bodily harm or an intent to endanger life or health, will often be more serious than an intent to endanger the safety of a person. In the present case it was accepted that the appellant only intended to 10 ts 98. 11 Appellant's case, filed 1 April 2026, pars 5, 36 - 37. -- 11 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 12 endanger the safety of the police officers and prevent them from pursuing him, and that he did not intend to hit either of them. 39 It is submitted that the total sentence was disproportionate to the overall offending, considering its objective seriousness balanced against the mitigating circumstances and when compared to sentences imposed in comparable cases. The appellant refers in this regard to Penny v The State of Western Australia;12 The State of Western Australia v Popal;13 Cheeseman v The State of Western Australia;14 and The State of Western Australia v Tulloch.15 40 The appellant has also applied to adduce additional evidence on the appeal in the form of an affidavit sworn by him relating to prison conditions. The affidavit refers to conditions under which the appellant served his time on remand prior to sentencing and also the conditions under which he has served his time since being sentenced for the present offences. The appellant accepts that the evidence relating to the period after being sentenced would only be relevant in the event that the appeal succeeded and this court proceeded to resentencing. However, the evidence relating to the period prior to sentencing is said to be relevant because the harshness of the conditions contribute to the sentence being disproportionate. The merits 41 The principles applicable to a claim that an individual sentence is manifestly excessive or that the totality principle has been infringed are well known. Those principles were summarised in Kabambi v The State of Western Australia16 and do not need to be repeated. 42 The factors relevant to sentencing for offences contrary to s 304(2) of the Code are well established. In The State of Western Australia v BLM, Buss JA (as his Honour then was) identified these factors:17 1. The nature and seriousness of the offender's intent. 2. The nature and seriousness of the bodily harm caused to the particular victim or the severity and other circumstances of the 12 Penny v The State of Western Australia [2016] WASCA 52. 13 The State of Western Australia v Popal [2020] WASCA 200. 14 Cheeseman v The State of Western Australia [2023] WASCA 78. 15 The State of Western Australia v Tulloch [2025] WASCA 17. 16 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. 17 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [136] (Buss JA, with Miller JA agreeing). -- 12 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 13 actual or likely endangering of the particular victim's life, health or safety, as the case may be. 3. The potential (as distinct from the actual) consequences of the offender's conduct. 43 Offences of this nature cover a wide range of conduct, and there is no tariff or established range of sentences. The potential for harm may be a significant factor for sentencing where there is no actual or only minor physical harm arising.18 44 The maximum penalty for an offence of this nature is 20 years' imprisonment. 45 The seriousness of the present offences is reflected in the fact that the appellant fired a firearm from a moving vehicle at a pursuing police car in which two officers were located. The appellant fired the weapon through the rear windscreen of the car he was driving. In doing this, he intended to frighten the police officers and deter them from continuing their pursuit. The discharge of the weapon in the direction of the police officers was inherently dangerous. The appellant intended to endanger the safety of the police officers. There was an obvious risk that one of the officers or their vehicle could be hit by the bullet, or that, in taking evasive action, they could have crashed the vehicle, causing injury to themselves or to other members of the public. The sentencing judge's assessment of this offending as being very serious was entirely appropriate. 46 The nature of the intent to harm is a relevant consideration. However, whilst the appellant did not intend to do bodily harm to the officers, or to endanger their lives or health, his intent to endanger their safety was extremely serious. He may not have intended to hit the officers or cause them injury, but that was an obvious and real risk. The appellant pointed the gun in the general direction of the police car because he wanted to scare the officers and cause them to give up the pursuit. In the circumstances of this case there was nothing about the appellant's intent that placed this offending into a lesser category of seriousness. 47 There was little by way of mitigation. The only significant mitigating factor was that the appellant had pleaded guilty, albeit at a very late stage, and was entitled to a 10% discount. However, the 18 Hinkley v The State of Western Australia [2014] WASCA 122 [18]; Popal [72]. -- 13 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 14 appellant did not have the benefit of youth or good character. The sentencing judge only found that the appellant had shown some remorse and insight, and that it was belated. His prior record, whilst not an aggravating factor, heightened the need for personal deterrence. That record demonstrated a history of similar offending and a wilful disregard of lawful authority. 48 General deterrence was plainly a very significant factor in this case. The use of firearms against police officers performing their lawful duties must be firmly denounced. Penalties for such behaviour should reflect the need to deter others from engaging in conduct of this type. 49 The comparable cases referred to by the appellant do not support a conclusion that the sentence in this case was disproportionate to the overall offending. 50 In Penny, the offender struggled with two police officers whilst in possession of a concealed shotgun. He discharged the weapon close to one officer's face, and then pointed it in the face of the other officer. The offender was shot in the stomach by the second officer when he would not release the gun. Neither of the police officers was injured. The offender was convicted after trial of one offence contrary to s 304(2). The offender believed that the safety catch was on and, on appeal, it was held that it was not open to find that the offender intended to endanger the life, health or safety of the police officer with whom he struggled. The offender was dealt with on appeal on the basis that his only intent was to hinder the doing of an act that the person was lawfully entitled to do. McLure P said that regard could be had to the potential consequences of the offender's conduct. Her Honour also said that the offending was aggravated by the fact that the victim was a police officer acting in the course of his duties. On appeal, the original sentence of 9 years' imprisonment was set aside and the offender was resentenced to 6 years' imprisonment. 51 In Popal, the offender discharged a handgun multiple times into a number of vehicles, with intent to do harm. He was convicted of 11 offences, of which two were offences contrary to s 304(2). The offending occurred whilst the offender was in a methylamphetamine-induced psychosis. No physical injuries were caused, though several of the victims suffered psychological trauma. The offender had a good work history, no prior criminal history, and was at minimal risk of reoffending if he abstained from drugs. He -- 14 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 15 entered guilty pleas at a relatively early stage and received a 15% discount. He had made efforts towards rehabilitation, including drug and alcohol counselling. On a State appeal, the offender was resentenced to a total effective sentence of 8 years 6 months' imprisonment. The individual sentences on the two s 304(2) offences were increased to 5 years' imprisonment and 6 years' imprisonment respectively. 52 In Cheeseman, the offender drove a vehicle whilst a co-offender fired a firearm at other cars on two separate occasions. The offender pleaded guilty to eight counts, of which three were s 304(2) offences. An appeal against a total effective sentence of 7 years 9 months' imprisonment was dismissed. The individual sentences on the three s 304(2) offences of 2 years 6 months' imprisonment (reduced for totality) and 4 years 6 months' imprisonment for the other two offences were unaffected. This court said that the danger in discharging a firearm was magnified by occurring on an open road, where there was potential for injury to both the victims and other road users. 53 In Tulloch, the offender pursued another man and shot him through an open window, striking him in the arm. The offender was on bail for other offences at the time of the offence. The offender entered early pleas of guilty to six offences, of which one was a s 304(2) offence relating to the firing of the gun. He received a 25% discount for those pleas. On a State appeal, the total effective sentence was increased from 5 years 6 months' imprisonment to 7 years 6 months' imprisonment. The individual sentence for the s 304(2) offence was increased from 4 years 6 months' imprisonment to 6 years 2 months' imprisonment. 54 The present case has some similarities with Penny in that it also involved a firearm used against police officers performing their duties. Whilst the potential for harm in Penny was greater given that the gun discharged at close range, this is more than offset by the fact that the offender in that case believed that the safety catch was on and did not intend to endanger the life, health or safety of the officers. This has to be contrasted with the appellant, who deliberately shot in the direction of the police while in the course of a pursuit. The fact that the offender in Penny did not plead guilty whereas the appellant pleaded guilty and received a 10% discount is more than accounted for by the fact that the offender in Penny received a higher sentence. -- 15 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 16 55 The offending in Popal involved multiple shots at a number of cars, but did not have the aggravating feature of a shot being fired at police officers performing their lawful duties. The offender in Popal also had better antecedents, better prospects of rehabilitation, and was given a larger discount for pleading guilty. When those factors are all taken into account, Popal affords no assistance to the appellant. 56 Cheeseman was an appeal focussed on totality where other offences were also included in the mix. To the extent that the individual sentences for the s 304(2) offences are useful, they provide no assistance to the appellant. 57 Tulloch involved actual harm from a gun shot at close range, but it did not include the aggravating feature of being a shot fired at police officers performing their lawful duties. The offender in that case entered early pleas of guilty and received a 25% discount, as contrasted with the 10% allowed for the appellant. The higher sentence imposed for the s 304(2) offence in that case does not assist the appellant. 58 In addition to the cases referred to by the appellant, we have also considered Quirk v The State of Western Australia;19 Vander Waide v The State of Western Australia;20 and Forrest v The State of Western Australia.21 Similarly, those cases provide no assistance to the appellant. 59 The application to adduce additional evidence is misconceived. An appeal that alleges a breach of the totality principle must be determined on the materials that were before the primary judge. Ordinarily, evidence will not be admitted of matters that were known to the appellant at the time of sentence but not put before the sentencing judge. The reason for this is that, absent proof of error, an appeal does not provide an opportunity to present a different plea in mitigation based on information that was available but not relied on at the time of sentencing. To permit such a course would obliterate the distinction between original and appellate jurisdiction.22 60 The prison conditions under which the appellant had served his time on remand up until the time of sentencing were referred to in sentencing submissions. The appellant's affidavit provides greater 19 Quirk v The State of Western Australia [2019] WASCA 76. 20 Vander Waide v The State of Western Australia [2019] WASCA 148. 21 Forrest v The State of Western Australia [2019] WASCA 172. 22 Wellstead v The State of Western Australia [2019] WASCA 130 [91] - [93]; Rinaldi v The State of Western Australia [2007] WASCA 53 [84] (Steytler P, with Wheeler & Pullin JJA agreeing). -- 16 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 17 detail as to those conditions, but this is information that was plainly available at the time of sentencing and was not relied on. In any event, there is nothing to suggest that the conditions constitute a hardship that exceeds that which any other prisoner in the appellant's position would suffer.23 61 As the appellant rightly concedes, the other material in the affidavit, that relating to conditions since the time of sentencing, could only be relevant in the event that the appeal was allowed and the appellant was resentenced. 62 Having regard to the maximum penalty, the seriousness of the offence, the personal circumstances of the appellant, and the guidance afforded by comparable cases, it is not reasonably arguable that the total sentence imposed in this case was unreasonable or plainly unjust. Leave to appeal should be refused and the appeal dismissed. Orders 63 We would make the following orders: 1. The application to adduce additional evidence is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. 23 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [151] - [157] (Buss JA, with Mazza JA agreeing on the distillation of these principles). -- 17 of 18 -- [2026] WASCA 70 JUDGMENT OF THE COURT Page 18 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RD Associate to the Honourable Justice Hall 27 MAY 2026 -- 18 of 18 --