File No : IND 628B of 2004, IND 249 of 2008

Criminal law - Sentencing - Multiple offences of aggravated burglary, stealing and destroying property by fire - Voluntary disclosure of guilt where guilt unlikely otherwise to have been discovered - Comparable cases - Totality principle

Application for an extension of time to apply for leave to appeal dismissed

AD v The State of Western of Western Australia [No 2] [2007] WASCA 207

Barnes v The State of Western Australia [2004] WASCA 258

Barr v The Queen [2003] WASCA 55

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Casbolt v The State of Western Australia [2005] WASCA 41

Furey v The Queen (Unreported, WASCA, Library No 940011, 14 January 1994)

Howorth v The State of Western Australia [2007] WASCA 78

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Karolides v The State of Western Australia [2006] WASCA 240

Lancaster v The Queen [1989] WAR 83

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; 1988) 166 CLR 59

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Abboud [2005] NSWCCA 251

R v Ellis (1986) 6 NSWLR 603

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

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Schriever v The State of Western Australia [2008] WASCA 133

Sulejmani v The State of Western Australia [2005] WASCA 95

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

1 OWEN JA: I agree with Buss JA that the proposed ground of appeal lacks merit and that, accordingly, the appellant's application for an extension of time within which to apply for leave to appeal should be refused.

2 BUSS JA: The appellant was convicted in the District Court of Western Australia, on his pleas of guilty, of 40 offences contained in an indictment, 20 offences in a notice under s 32 of the Sentencing Act 1995 (WA), two breaches of a suspended imprisonment order and two breaches of an intensive supervision order.

3 On 25 January 2008, Martino DCJ sentenced the appellant to a total effective term of 8 years' immediate imprisonment. His Honour back-dated the sentence to 10 August 2007, and made a parole eligibility order.

4 The last date for the appellant to apply for leave to appeal against sentence was 15 February 2008. He did not file his appeal notice until 29 October 2008.

The application for an extension of time to appeal

5 The appellant's solicitor, Peter Ben Cassidy, swore an affidavit on 29 October 2008 in support of the appellant's application for an extension of time to appeal. Mr Cassidy deposed in par 6 that:

this affidavit is not intended to explain the delay of approximately eight months in filing the Appeal Notice, but is filed to save any further delay whilst material to support and explain the delay is gathered.

Mr Cassidy annexed to his affidavit copies of correspondence, including correspondence with the appellant's counsel, Mr Simon Watters, in relation to the appellant and the sentences imposed on him. All of this correspondence occurred on or after 31 July 2008.

6 On 3 December 2008, the appellant swore an affidavit in support of his application for an extension of time. The appellant deposed, in par 9, to the effect that after he was sentenced by the learned sentencing judge, his then solicitor, Mr Paul Roth, informed him that he should be 'happy' with the total effective sentence. According to the appellant, Mr Roth did not inform him that he had a right to apply for leave to appeal. The appellant said that he did not become aware of this right until early July 2008, as a result of discussions with other prisoners. He then spoke with Mr Watters. An application was made for a grant of legal aid. By letter

dated 21 August 2008, the Legal Aid Commission of Western Australia informed the appellant's new solicitor that a grant of legal aid had been made for the purpose of enabling the appellant to obtain advice as to the likelihood of his being granted leave to appeal against sentence. Advice was given to the effect that 'an appeal had merit'. Another application was then made for a grant of legal aid to fund the cost of applying for an extension of time and, if an extension was granted, an application for leave to appeal. A grant of legal aid for this purpose was approved on 12 November 2008.

7 On 28 November 2008, Wheeler JA ordered that the application for an extension of time, and the application for leave to appeal, be heard together with the appeal.

8 It is settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time, unless it is established that there will be a miscarriage of justice if an extension is not granted. See Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v The State of Western of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing).

The salient facts of the counts in the indictment

9 The indictment comprised 18 counts of aggravated burglary contrary to s 401(2)(a) of the Criminal Code (WA), two counts of burglary of a dwelling contrary to s 401(2)(b) of the Criminal Code, 12 counts of stealing a motor vehicle contrary to s 371A and s 378 of the Criminal Code, seven counts of destroying property by fire contrary to s 444(a) of the Criminal Code and one count of stealing contrary to s 378 of the Criminal Code.

10 The salient facts of these offences were as follows:

Count 1: Between 10:30pm 3 March 2000 and 4:00am 4 March 2000 the appellant entered a house in Claremont via an unlocked door and stole property valued at approximately $1,045. The appellant was in company with others and was aware the premises were occupied.

Count 2: Using the keys stolen from the burglary in count 1 the appellant put the stolen property in the complainant's Toyota Corolla Sedan and drove the vehicle from the premises. The vehicle was valued at $9,000.

Count 3: Between 10:00pm 6 August 2000 and 8:00am 7 August 2000 the appellant entered a house in Peppermint Grove via an unlocked door in the kitchen area and stole property valued at approximately $10,351. The appellant was in company with others and was aware the premises were occupied.

Count 4: Using the keys stolen from the burglary in count 3 the appellant put the stolen property in the complainant's Toyota Landcruiser and drove the vehicle from the premises.

Count 5: The appellant drove the vehicle stolen in count 4 to a remote location and set fire to it. The vehicle was completely destroyed. The vehicle was valued at $34,000.00.

Count 6: Between 10:00pm 10 September 2000 and 7:45am 11 September 2000 the appellant entered a house in Mosman Park via an unlocked window and stole property valued at approximately $14,422. The appellant was in company with others and knew the premises were occupied.

Count 7: Between 11:00pm 18 January 2004 and 3:00am 19 January 2004 the appellant entered a house in Cottesloe via an unlocked door and stole property valued at approximately $2,880. The appellant was in company with others and knew the premises were occupied.

Count 8: Using the keys stolen from the burglary in count 7 the appellant put the stolen property in the complainant's Mitsubishi Magna and drove the vehicle from the premises. The vehicle was later recovered in Beechboro.

Count 9: Between 9:00pm 17 July 2005 and 5:30am 18 July 2005 the appellant entered a house in Peppermint Grove via the closed but unlocked garage attached to the dwelling and stole property valued at approximately $30. The appellant was in company with others and was aware the premises were occupied.

Count 10: Between 12:01am and 2:00am 27 November 2005 the appellant entered a house in Cottesloe using a set of keys which had been left in the door and stole property valued at approximately $13,292. The appellant was in company with others and was aware the premises were occupied.

Count 11: Using the keys stolen from the burglary in count 10 the appellant put the stolen property in the complainant's BMW sedan and drove the vehicle from the premises.

Count 12: After using the vehicle stolen in count 11 for his own purposes the appellant drove the BMW to a remote location and set fire to the vehicle. The vehicle was completely destroyed. The vehicle was valued at $50,000.00.

Count 13: Between 11:30pm 22 December 2005 and 6:00am 23 December 2005 the appellant entered a house in Swanbourne via the closed but unlocked garage attached to the dwelling and stole property valued at approximately $3,390. The appellant was in company with others and was aware the premises were occupied.

Count 14: Between 11:10pm 14 February 2006 and 7:00am 15 February 2006 the appellant entered a house in Mosman Park via the garage and into the house via an unlocked door and committed the offence of stealing. At the time the appellant was in company with others and was aware the premises were occupied.

Count 15: Using the keys stolen from the burglary in count 14 the appellant put the stolen property in the complainant's silver Holden Commodore and drove the vehicle from the premises.

Count 16: After using the vehicle for his own purposes the appellant drove the Holden Commodore to a remote location and set fire to it. The vehicle was completely destroyed. The vehicle was valued at $36,000.00.

Count 17: Between 9am and 4:15pm 10 March 2006 the appellant entered a storeroom, attached to a house in Cottesloe and stole property to the value of approximately $11,000, including fishing equipment, scuba diving equipment and electric garden tools.

Count 18: Between 8:30pm 16 March 2006 and 5:20am 17 March 2006 the appellant opened the gates securing a house in Mosman Park and removed a 3.32 metre Sea Doo jet-ski which was on a trailer, 5 life jackets, gloves, goggles, kneeboard and water-skis. The appellant attached the trailer and jet-ski to his vehicle and drove from the house. The property was valued at $32,395.00.

Count 19: Between 8:30pm and 9:30pm 24 May 2006 the appellant entered the closed but unlocked garage attached to a house in Peppermint Grove and stole property valued at approximately $3,430. The appellant was in company with others and was aware the premises were occupied.

Count 20: Between 12:30am and 1:30am 27 May 2006 the appellant entered a house in Mosman Park by unknown means and stole property valued at approximately $300. The appellant was in company with others and was aware the premises were occupied.

Count 21: Between 12:01am and 7:00am 28 May 2006 the appellant entered a house in Mosman Park via an unlocked door and stole property valued at approximately $14,218. The appellant was in company with others and was aware the premises were occupied.

Count 22: Whilst at the premises in count 21 the appellant stole the complainant's Honda XR motorcycle and either the appellant or his accomplice drove it from the premises. The value of the motorcycle was $5,000.00.

Count 23: Using the keys stolen from the burglary in count 21 the appellant filled the complainant's Toyota Landcruiser with the stolen property and he or his accomplice drove the vehicle from the premises.

Count 24: After using the vehicle stolen in count 23 for his own purposes the appellant drove the vehicle to a remote location and set fire to it. The vehicle was completely destroyed. The vehicle was value at $40,000.00.

Count 25: Between 9:00pm and 10:00pm 25 August 2006 the appellant entered a house in Peppermint Grove via an unlocked door in the closed garage and stole property valued at approximately $100. The appellant was in company with others and was aware the premises were occupied.

Count 26: Between midnight and 6:00am 27 August 2006 the appellant entered a house in Cottesloe via the closed but unlocked garage and stole property valued at approximately $11,163. The appellant was in company with others and was aware the premises were occupied.

Count 27: At approximately 5:00am 3 December 2006 the appellant entered a house in Peppermint Grove via an unlocked door and stole property valued at approximately $1,650. The appellant was in company with others and was aware the premises were occupied.

Count 28: Between 7:30pm and 10:30pm 12 January 2007 the appellant entered a house in Mosman Park via an unlocked door to the kitchen and stole the keys to the complainant's vehicle. The appellant was in company with others and was aware the premises were occupied.

Count 29: Using the keys stolen from the burglary in count 28 the appellant stole the complainant's Mercedes Benz and drove the vehicle from the premises. The appellant used the vehicle for approximately one week for his own purposes. The vehicle was recovered with damage to the gear box. The vehicle was valued at $102,000.00.

Count 30: Between 11:50pm 10 May 2007 and 7:00am 11 May 2007 the appellant entered a house in Peppermint Grove via an unlocked door and stole property valued at approximately $3,890. The appellant was in company with others and knew the premises were occupied.

Count 31: Between 11:30pm 17 March 2007 and 12:30am 18 March 2007 the appellant entered a house in Swanbourne via unknown means and stole property valued at approximately $19,250.

Count 32: Using the keys stolen from the burglary in count 31 the appellant loaded the complainant's Holden Barina with the stolen property and drove the vehicle from the premises.

Count 33: After using the vehicle stolen in count 32 for his own purposes the appellant drove the Holden Barina to a remote location and set fire to it. The vehicle was completely destroyed. The vehicle was valued at $5,000.00.

Count 34: Between 12:01am and 7:00am 24 March 2007 the appellant entered a house in Mosman Park via an unlocked sliding door and stole property valued at approximately $14,040. The appellant was in company with others and was aware the premises were occupied.

Count 35: Using the keys stolen from the burglary in count 34 the appellant put the stolen property in the complainant's Nissan Patrol and drove the vehicle from the premises.

Count 36: After using the vehicle stolen in count 35 for his own purposes the appellant drove the Nissan Patrol to a remote location and set fire to it. The vehicle was completely destroyed. The vehicle was valued at $25,000.00.

Count 37: Between 6:00pm 1 July 2007 and 8:20am 2 June 2007 the appellant was at a house in Cottesloe and entered the complainant's Jeep Wrangler and bypassed the immobiliser to start the vehicle. The appellant stole the vehicle and used it for his own purposes.

Count 38: After using the vehicle stolen in count 37 for his own purposes the appellant drove the Jeep Wrangler to a remote location and set fire to it. The vehicle was completely destroyed. The vehicle was valued at $10,000.00.

Count 39: Between 6:30am and 4:30pm 2 July 2007 the appellant forced entry to the locked garage of a house in Tapping and stole a quad motorcycle valued at $10,000. The appellant was in company with others and knew the premises were occupied.

Count 40: Once inside the premises in count 39 the appellant stole another quad motorcycle from the garage. This vehicle and the vehicle stolen in count 39 were on a trailer. The quad motorcycle was valued at $10,000 and the trailer was valued at $5,000.00. The quad motorcycles have not been recovered. The trailer was recovered in Joondanna (AB 38 - 44).

11 The total value of the property stolen (including the property destroyed by fire) was about $500,000. Property to the value of about $15,000 and the motor vehicles referred to in counts 8 and 29 were recovered (although one of the vehicles was damaged). The total value of the property destroyed by fire was about $200,000.

12 The appellant destroyed the stolen motor vehicles, the subject of counts 5, 12, 16, 24, 33, 36 and 38, for the purpose of eliminating any forensic evidence that may connect him to the vehicles.

The offences the subject of the s 32 notice

13 The offences the subject of the s 32 notice comprised 12 charges of stealing, four charges of stealing a motor vehicle, one charge of attempted burglary of a dwelling, one charge of burglary of a dwelling and two charges of aggravated burglary of a dwelling.

14 The two breaches of the suspended imprisonment order and the two breaches of the intensive supervision order related to offences of reckless driving and aggravated burglary.

The structure of the sentences imposed by the learned sentencing judge

15 The structure of the sentences imposed by the learned sentencing judge is as set out in the schedule to these reasons.

16 As I have mentioned, the total effective sentence was 8 years' immediate imprisonment with eligibility for parole.

The learned sentencing judge's sentencing remarks

17 The learned sentencing judge said in his sentencing remarks, relevantly:

The offences constitute serious, organised and planned criminal behaviour over a lengthy period of time.

On 9 August 2007 you were taken into custody on another matter and you immediately volunteered the information that has led to these prosecutions. It is by that method that these prosecutions have commenced. You are aged 28 and you have three children to whom you are very attached.

You have pleaded guilty at the first possible opportunity and your conduct in entering those pleas and in volunteering to the police all the information about these prosecutions demonstrates a willingness to facilitate the course of justice, acceptance of responsibility for your offending behaviour and remorse.

You have a record that includes other offences of burglaries and dishonesty. All of your offending behaviour is related to your use of drugs and alcohol. In your childhood you were exposed to substance abuse and violence and you were the victim of serious crimes. As a result, you were not given the support that a child needs. You were not given the opportunity to develop appropriate personal skills to manage the challenges of adult life and you were vulnerable to drug abuse.

You have decided to give up crime and you have decided to give up drugs and alcohol abuse. I have read your letter. It is a very well written letter. You have obviously given it a lot of thought. You are obviously an intelligent person. I say that having regard to the letter but also to matters in your past as set out in the reports that I have read.

I have also read the letters from your girlfriend and her mother and they show not only their own good qualities and loyalty to you but also obviously they see in you the good qualities that you have that warrant that support.

I accept unreservedly that you are determined to give up crime and drugs. I accept that you sincerely have that intention and I mean no disrespect to you when I say that you have said it before and I accept that before you have meant it sincerely. I accept that you are motivated not to reoffend but your history alone shows that not to reoffend on your release will not be easy for you, but it is important for your own sake as well as for the sake of the community that you do not offend on your release from prison.

If you return to a life of substance abuse, you will inevitably commit crimes and the need for the protection of the community will mean that you spend lengthier and lengthier periods in prison.

The sentences I impose must punish you and deter you from reoffending and also act as a general deterrent. Offences such as these are serious crimes and serious punishments must be imposed for them.

It is clear that the offences are so serious that terms of imprisonment to be served are the only appropriate sentence. In arriving at the length of the sentences I have borne in mind the changes to the sentencing legislation in 2003 and I have given you full credit for your pleas of guilty at the first opportunity under the fast-track system.

I have also borne in mind the totality principle to ensure that the total effective sentence bears a proper relationship to the overall criminality of your offending behaviour and to ensure that the sentence does not remove any reasonable expectation of a useful life after your release from prison (ts 63 - 65).

18 The appellant's sole ground of appeal is that the total effective sentence imposed by the learned sentencing judge infringed the totality principle, having regard to the overall criminality involved in the various offences when viewed in their entirety and all the circumstances of the case. The appellant refers specifically to the disclosure of unknown guilt, his early pleas of guilty, his antecedents, and all the circumstances of the offending.

The ground of appeal: the appellant's submissions

19 The appellant submitted that the total effective sentence of 8 years immediate imprisonment was severe, but would ordinarily be within an appropriate sentencing range. However, according to the appellant, it was apparent from the appellant's disclosure of unknown guilt and other mitigatory factors that the learned sentencing judge must have made an inadequate discount for the disclosure and, in the circumstances, the total effective sentence was disproportionately high and did not bear a proper relationship to the overall criminality of the offences.

20 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender 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, 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). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. See, generally, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

21 Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66; Vlek, (10) (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J); Carr [7] (McLure JA).

22 It is plain, from the decision of the High Court in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 624, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]; R v Abboud [2005] NSWCCA 251 [36].

23 The learned sentencing judge, correctly in my view, described the offences committed by the appellant as involving 'serious, organised and planned criminal behaviour over a lengthy period of time' (ts 63). In particular:

(a) the appellant committed a significant number of offences;

(b) the offences occurred over a considerable period of time;

(d) the appellant destroyed several motor vehicles to endeavour to avoid detection;

(e) the burglary offences were committed on dwellings;

(f) the burglary offences were committed primarily at night and while the dwellings were occupied, with the consequent risk of a confrontation; and

(g) most of the burglary offences were committed while in company.

24 The appellant was a recidivist offender with a significant and lengthy criminal history. His prior record of convictions included seven burglary offences, five breaches of court orders, four offences of stealing motor vehicles, one offence of stealing a motor vehicle and driving it dangerously, one receiving offence, two other stealing offences and one count of criminal damage. The appellant had also been convicted previously of offences relating to illicit drugs and alcohol.

25 The learned sentencing judge took into account the following factors which the appellant's counsel contended, at the sentencing hearing, were, at least to some extent, mitigatory:

(b) the appellant entered pleas of guilty to all offences at the earliest opportunity;

(c) the appellant cooperated with the police and made voluntary disclosure of the offences;

(d) the appellant suffered abuse, trauma and violence as a child;

(e) the appellant had a difficult relationship with his family, in particular his mother, and in consequence had little family support; and

(f) the appellant had suffered from alcohol and illicit drug abuse (ts 63).

26 The principal mitigatory factors were the pleas of guilty at the earliest opportunity, the appellant's cooperation with the police and his voluntary disclosure of the offences. The appellant was not a young man when many of the offences were committed, and his age therefore carried very little mitigatory weight. His difficult relationship with his family and his history of alcohol and illicit drug abuse provided some explanation for his offending, but did not diminish the seriousness of the offences in question.

27 As the learned sentencing judge noted, the pleas of guilty at the earliest opportunity demonstrated a willingness to facilitate the course of justice, an acceptance of responsibility for his criminal behaviour and remorse for his offending. The appellant also professed a desire (which his Honour accepted as genuine) to rehabilitate himself and avoid substance abuse. His Honour noted, however, that the appellant's past efforts at rehabilitation had been unsuccessful.

28 There is no doubt that the voluntary disclosure of offences which may remain undetected, but for the offender's disclosure and cooperation with the police, can be a significant mitigating factor. See R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt & Allen JJ agreeing); Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] - [13] (McHugh J); Schriever v The State of Western Australia [2008] WASCA 133 [22] (Steytler P). In the present case, it appears to have been unlikely that the appellant would have been apprehended for and charged with the counts on the indictment or the s 32 offences, without his voluntary disclosure and cooperation.

29 Counsel for the appellant referred to several authorities which he submitted were 'comparable cases': Karolides v The State of Western Australia [2006] WASCA 240; Casbolt v The State of Western Australia [2005] WASCA 41; Barr v The Queen [2003] WASCA 55; Howorth v The State of Western Australia [2007] WASCA 78; Furey v The Queen (Unreported, WASCA, Library No 940011, 14 January 1994).

30 When considering the application of the totality principle it is useful to refer to comparable authorities. They may provide broad guidance as to whether the total effective sentence imposed in the particular case under review offends the totality principle or not. It is essential, however, to remember that the utility of referring to other cases is limited in that there may be significant differences in the circumstances of the offending and the offenders in those cases which, on the face of it, bear some similarity to the case in question. See Roffey v The State of Western Australia [2007] WASCA 246 [27] (McLure JA); Shriever [27].

31 In Howorth, the offender pleaded guilty to three counts of burglary, six counts of stealing a motor vehicle and three counts of stealing. All of the offences occurred between 18 November 2000 and early April 2001. The offender was part of a 'highly organised racket' involving the theft of motor vehicles, fuel and goods. His precise role in the 'racket' was unclear. He was, at the material time, in the grip of a heroin addiction and an amphetamine habit, and he committed the offences for the purpose of paying for drugs or repaying drug debts. The offender was about 30 years of age at the time of the offences. He had a lengthy criminal record. Most of his offending in his earlier years was for traffic-related offences. There was also some other minor anti-social behaviour, dishonesty and drug-related offending. In 1995, he was convicted of stealing motor vehicles and other property. His last recorded offence was in April 1996, and he appeared not to have offended between that date and the commission of the offences in question in late 2000 and early 2001. The sentencing judge imposed a total effective sentence of 7 years 4 months' imprisonment.

32 Steytler P, Wheeler and Pullin JJA, in their joint reasons, noted:

... there is a particular difficulty involved in cases of multiple offending such as burglary, or stealing motor vehicles, or simple stealing. Generally speaking, in such cases the offences are discrete offences committed on discrete occasions, so that cumulative sentences would ordinarily be appropriate. Further, the criminality of an offender who offends on a number of occasions is plainly greater than the criminality of an offender who has offended but once, all other circumstances being equal, and the impact on the community of a number of distinct offences would ordinarily be greater than the impact of but one offence, assuming the circumstances of the offences to be broadly similar [20].

See also Sulejmani v The State of Western Australia [2005] WASCA 95 [22] (Wheeler JA).

33 Steytler P, Wheeler and Pullin JJA then reviewed various cases, including those relied on in the present case by counsel for the appellant. Their Honours classified the cases into three categories, as follows:

The first category contains three cases in which the offenders received (prior to the transitional provisions) sentences longer than that imposed on the appellant. Their criminality was plainly, however, more serious, since in each case there were not just stealing and/or burglary offences, but were also one or more of aggravated robbery, stealing and driving recklessly, or armed robbery. The next category of three cases involved sentences of, or equivalent to, 9 or 10 years prior to the transitional provisions. Two of those also involved one or more armed robbery offences. The final two cases involved sentences which, when allowance is made for the transitional provisions, were significantly shorter than those imposed upon the appellant. They involved a greater number of offences. We summarise these cases in order of decreasing sentence length. All involved, as does this case, pleas of guilty. They either predate the transitional provisions or, where they do not, we have notionally converted them [21].

34 It is worthwhile reproducing in these reasons the review of the cases carried out by Steytler P, Wheeler and Pullin JJA, and their Honours' conclusions based on that review:

The longest sentences

R v Roworth [2003] WASCA 120 was a sentence of 12 years 6 months, increased on a Crown appeal from one of 9 years and 6 months. That offender had committed 12 offences of various kinds. Some involved the stealing of a motor vehicle, but there were seven armed robberies. Further, the offender had an appalling record and some of the offences were committed whilst he was on bail. He had, however, entered a fast-track plea of guilty.

Haylock v The Queen [2000] WASCA 287 was a sentence of 12 years imposed in respect of 12 offences. Seven of those were either stealing a motor vehicle, stealing, or burglary/aggravated burglary. However, there were four counts of armed robbery and one of aggravated assault. The offender was 21 years of age, and had an extensive record. However, mitigating factors included a poor upbringing, involving foster care from the age of 12 years, and the taking of steps to overcome his drug addiction while in prison.

Karolides v The Queen [2006] WASCA 240 was a sentence of 7 years 9 months (equivalent to 11 years 7½ months prior to the transitional provisions) imposed in respect of 20 counts of different types of offences. Most of them involved stealing or attempted stealing of a motor vehicle (six counts) or burglary (six counts). However, there were also counts of aggravated robbery, stealing and driving recklessly (this accounting for 3 years of the sentence), reckless driving, driving under suspension and failing to stop. The offender was 30 years of age, with a long criminal history. He was at high risk of reoffending. The mitigating factors included a very deprived childhood, with exposure to violence and child abuse.

The 9 to 10-year sentences

Power v The Queen, unreported; CCA SCt of WA; Library No 950438; 23 August 1995 involved a sentence of 10 years imposed in respect of 24 offences. Most were either stealing a motor vehicle or aggravated burglary, but two were of armed robbery. The offender had some criminal history. However, he had grown up with family violence and had an addiction to amphetamines and heroin. It may be that, having regard to the date of that case, the total sentence should be regarded with some caution for the purposes of comparison, since sentences have 'firmed up' somewhat in relation to burglary and stealing of motor vehicles since that date (see Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997).

Little v The Queen [2001] WASCA 87 was a sentence of 9 years imposed in relation to five offences. Three were of stealing a motor vehicle, and one of aggravated burglary. However, the fifth count was one of armed robbery. Although the offender was only 22 and had pleaded guilty on the fast-track, he had been released to parole but one month prior to committing these offences. He was hardly of good character, having some 257 prior convictions. The 9-year sentence was one arrived at on appeal, a sentence of 10 years having been imposed by the sentencing Judge at first instance.

Casbolt v The State of Western Australia [2005] WASCA 41 was a sentence of 6 years (equivalent to 9 years prior to the transitional provisions). That was described by the Court as 'well within' an appropriate range. The offender's personal circumstances were somewhat similar to the present appellant's, in the sense that he had been drug-dependent, but during a period in custody prior to being sentenced, and while on bail, he had freed himself from his drug addiction.

However, he had been serving an intensive supervision order when he committed some of the offences for which he was sentenced, and he had committed a significantly greater number of offences than the appellant, consisting of 29 counts of either aggravated burglary, burglary, or attempted aggravated burglary, 17 counts of receiving, nine counts of stealing a motor vehicle, six counts of stealing, and one count each of wilful damage, assault and of threat. Even allowing for the scale of the present appellant's offending in this case, involving as it did substantial vehicles and quantities of other property, one's first impression is that this appellant should not receive a longer sentence than that imposed upon Casbolt.

The shortest sentences

Barr v The Queen [2003] WASCA 55 involved a sentence of 7 years imposed in respect of 25 offences, including seven counts of aggravated burglary, seven of stealing a motor vehicle, and numerous serious driving-related offences (including reckless driving) dealt with by way of a s 32 notice. The offending in that case consisted essentially of the offender breaking into houses in order to steal a car so as to commit acts of reckless driving. Although he was but 18 years of age, he had an extensive and relevant juvenile history, was addicted to heroin, and showed little interest in abstaining from drug use.

Furey v The Queen, unreported; CCA SCt of WA; Library No 940011; 14 January 1994 involved a sentence of 6 years imposed in respect of 13 offences, they being nine of stealing a motor vehicle and four of burglary on non-residential premises, along with four additional charges dealt with pursuant to the former s 656A of the Criminal Code (WA). The circumstances of some of the offences are closest to the offending of the present appellant. On one occasion, Furey had stolen a van from the holding yard at business premises and then used the van in order to steal from a building site some $25,000 worth of tools, resulting in one count each of burglary and stealing a motor vehicle. On another occasion, he went to a City of Subiaco office and stole power tools, electrical equipment and money to the value of approximately $24,000 and loaded those items into a utility owned by the City of Subiaco, which he also stole, resulting again in one count of burglary and stealing a motor vehicle. Furey was 27 years of age. He had a significant criminal record and an addiction to amphetamines. Were it not for the age of this case, one would regard it as the most appropriate comparator for the appellant. However, as we have noted, sentences for both burglary and stealing a motor vehicle have 'firmed up' somewhat since 1994. Even so, we would note that the sentence of equivalent to 11 years prior to the transitional provisions which the appellant received is close to double that imposed upon Furey, and a discrepancy of that magnitude cannot be accounted for simply by 'firming up', especially in the light of this appellant's rehabilitation.

Conclusions

There are no hard and fast rules in relation to sentencing for multiple offending of this kind. Having regard to the very great variations in the number of possible offences, and in the possible combinations of offences, comparison is difficult. However, as a general rule, it does appear that in cases of burglary or motor vehicle theft sentences exceeding 10 years (prior to the transitional provisions) have been considered appropriate only where those multiple offences include one or more offences of a very serious nature (eg armed robbery, or stealing a vehicle and driving it recklessly) or where there is a very significant number of offences. Where there are no offences of that kind and where there are some mitigating factors in addition to the plea of guilty, then appropriate comparators, even in cases involving a dozen offences or thereabouts, appear to be of the order of 9 years prior to the transitional provisions, or less [22] - [30].

35 In Howorth, Steytler P, Wheeler and Pullin JJA decided that the offender had demonstrated that the total effective sentence imposed on him breached the totality principle. The court re-sentenced him to a total effective sentence of 5 years 4 months' imprisonment.

36 In my opinion, the cases relied on in the present case by counsel for the appellant as comparable cases are distinguishable.

37 Karolides is distinguishable in that the appellant in the present case committed a significantly greater number of offences over a significantly greater period of time. Also, the value of the property stolen and destroyed by the appellant appears to have been much greater than the value of the property stolen in Karolides.

38 Casbolt is distinguishable in that the appellant in the present case committed his offences over a significantly greater period of time. The offences in Casbolt occurred between 29 May 2002 and 8 August 2002. Although the offences in Casbolt involved 'a substantial amount of property damage and property loss' [17], no actual or estimated value of the property stolen, damaged or lost is set out in the reasons of the court.

39 Unlike the appellant in the present case, the offender in Barr was only 18 years of age at the material time, and his youth was a powerful mitigating factor. Also, the appellant in the present case committed a significantly greater number of offences over a significantly greater period of time. Further, the value of the property stolen and destroyed in the present case was much greater than the value of the property stolen in Barr.

40 For the reasons given in Howorth, the decision in Furey appears to be anomalous, for comparative purposes. In any event, the appellant in the present case committed a significantly greater number of offences over a significantly greater period of time. The offences in Furey occurred between 11 October 1992 and 13 May 1993. Also, the value of

the property stolen and destroyed by the appellant appears to have been much greater than the value of the property stolen in Furey.

41 In my opinion, the appellant's offending, in the present case, was very serious and required a severe sentence, notwithstanding the mitigatory factors; in particular, his disclosure of unknown guilt, his cooperation with the police and his pleas of guilty at the earliest opportunity. I am satisfied that the learned sentencing judge took these matters into consideration and gave them appropriate weight in determining the total effective sentence. The sentencing outcome did not exceed the upper limit of the range open to his Honour on a proper exercise of the sentencing discretion.

42 The total effective sentence was proportionate to the overall criminality involved in the numerous offences committed by the appellant, viewed in their entirety and in all the circumstances of the case, including those referable to him personally. Further, the total effective sentence cannot be characterised as 'crushing', in any relevant sense.

43 The proposed ground of appeal does not have a reasonable prospect of success. I would therefore refuse the appellant's application for an extension of time to apply for leave to appeal.

SCHEDULE

Sentence Structure

Attempted burglary - ss401(1)(b), 552 Criminal Code

No punishment s11 Sentencing Act

Stealing Motor Vehicle - ss371A, 378 Criminal Code

Stealing Motor Vehicle - ss371A, 378 Criminal Code

Stealing Motor Vehicle - ss371A, 378 Criminal Code

No punishment - s11 Sentencing Act

$250 fine (default payment to be served concurrently)