File No : IND BUN 26 of 2011, IND BUN 28 of 2011

Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Assault occasioning bodily harm - Whether total effective sentence infringed the first limb of the totality principle

Criminal Appeals Act 2004 (WA), s 27(2)

Ashworth v The State of Western Australia [2006] WASCA 36

Bellissimo v The Queen (1996) 84 A Crim R 465

Ditri v The State of Western Australia [2006] WASCA 283

Moody-Jackamarra v The State of Western Australia [2007] WASCA 7

Moore v The State of Western Australia [2006] WASCA 121

Nguyen v The State of Western Australia [2007] WASCA 114

Papertalk v The State of Western Australia [2011] WASCA 229

Phillips v The State of Western Australia [2011] WASCA 69

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

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an application for leave to appeal against sentences imposed by Wager DCJ on 7 October 2011.

3 The appellant entered, in effect, early pleas of guilty to offences contained in two indictments. Indictment BUN 28 of 2011 alleged 11 counts of offering to sell or supply a prohibited drug to another. Indictment BUN 26 of 2011 alleged one count of aggravated burglary and one count of assault occasioning bodily harm.

4 In respect of indictment BUN 28 of 2011, her Honour imposed a sentence of 15 months' imprisonment on count 1 and 2 years' imprisonment in respect of each of counts 2 - 11. She ordered that the sentences on counts 1 and 6 be served cumulatively.

5 In respect of BUN 26 of 2011, her Honour imposed 12 months' imprisonment for the offence of aggravated burglary and 6 months' imprisonment for the offence of assault occasioning bodily harm. She ordered that these sentences be served concurrently with each other, but cumulatively on the sentences imposed on BUN 28 of 2011.

6 The total effective sentence imposed upon the appellant was 4 years and 3 months' imprisonment with eligibility for parole.

7 The appellant does not challenge any of the individual sentences that were imposed. The single ground of appeal upon which he relies is that the total effective sentence infringed the first limb of the totality principle.

8 This court cannot grant leave to appeal unless it is satisfied that the proposed ground has a reasonable prospect of succeeding (s 27(2) of the Criminal Appeals Act 2004 (WA)). The relevant principles applicable to appeals against sentence need not be repeated. They are conveniently set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].

9 There is no dispute as to the circumstances of the appellant's offending.

10 In August 2010, police officers placed the appellant under telephone and physical surveillance. On 11 occasions, between 25 August and 8 September 2010, the appellant offered to sell to others illicit drugs such as methylamphetamine, cannabis and cocaine. For some of the offences, the precise nature and quantity of the prohibited drug were not known.

However, it is clear that the appellant was dealing in drugs, at least in part, for profit, but not at a high level: ts 70.

11 The offences of aggravated burglary and assault occasioning bodily harm occurred at about 1 am on 9 September 2010. The appellant, in company with two men named O'Connor and Bell, went to a house to confront two of the occupants about a drug debt and some threats that had allegedly been made towards O'Connor's family. The appellant and his co-offenders entered the premises, without consent, via a garage door which had been lifted by one or more of them. The appellant and his co-offenders then entered the garage. At this point, her Honour found that the appellant intended to commit an assault, although not a serious assault. As it turned out, a man named Lockyer was punched in the face and sustained a black eye: ts 67.

12 The appellant was, at the time he was sentenced, 32 years of age. He had a good work history. Her Honour found that he began using methylamphetamine at the age of 30, however, his criminal history indicates that he was using the drug a little before then. Whatever the position, his illicit drug use escalated quickly and eventually, he was unable to work. Once his savings dwindled he could not finance his habit and consequently, he turned to drug dealing.

13 The appellant had a minor criminal history, including convictions for possession of prohibited drugs in 2008 and 2009. However, the present offences were a considerable escalation upon his previous offending. To the appellant's credit, her Honour accepted that while the appellant had been in custody on remand he had used the time to improve his qualifications and had assisted other prisoners with literacy and numeracy: ts 70.

14 As the appellant is not alleging any express error by her Honour, there is no need to set out, in any detail, her Honour's sentencing remarks. However, it is relevant to observe that she made appropriate reference both to the seriousness of the appellant's offending and the need to apply the totality principle. In relation to the totality principle, her Honour said:

... in relation to the eleven count indictment [BUN 28 of 2011], in my view, a sentence of 2 years' imprisonment for each charge is appropriate. I then need to consider how I am going to structure that charge and, in my view, count 1 and count 6 should be cumulative. Then I am going to have a last look at that because I am going to impose a further cumulative term.

So in relation to count 1, I am reducing that term to one of 15 months' imprisonment and that is to be cumulative on count 6, which is the 2 years. So that then gives you a term of 3 years and 3 months in respect of the indictment ...

I now turn to the aggravated burglary and assault occasioning bodily harm. And I repeat that I take into account all of the matters that I have spoken of, but because of the serious nature a cumulative term must be imposed. And I am going to make that, in the circumstances, taking into account issues of totality, a term of 1 year in respect of count 1 and 6 months in respect of count 2. The 6 months is to be served concurrently, but the 1 year is cumulative: (emphasis added) ts 70 - 71.

15 It is plain from the parts I have emphasised that her Honour applied the totality principle. Despite this, the appellant submits that the total effective sentence imposed upon the appellant was too much, having regard to his overall criminality. The appellant's principal argument was that the sentences imposed upon each of the two indictments were at the upper end of the range and, in combination, was too much. The appellant sought to illustrate the alleged excessive sentence by reference to the circumstances of Phillips v The State of Western Australia [2011] WASCA 69.

16 The totality principle is well known and was accurately and concisely stated in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]:

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

17 The appellant's overall offending was serious. Drug dealing for profit, whether by user dealers or not, will ordinarily result in the imposition of a significant term of immediate imprisonment. This is because the major consideration for offences of this type in respect of dangerous drugs of addiction is general and personal deterrence: Bellissimo v The Queen (1996) 84 A Crim R 465, 471. Matters personal to such an offender will usually be given reduced weight to accommodate these considerations. In addition to his drug offending, the appellant, without consent, entered the complainant's house at night accompanied by others with the main intention of enforcing a drug debt. In the process, one of the occupants was unlawfully assaulted and sustained a black eye. This too is conduct which must be deterred.

18 I have considered, in respect of the drug offences, cases such as Moore v The State of Western Australia [2006] WASCA 121; Ditri v The State of Western Australia [2006] WASCA 283; and the case relied upon by the appellant, Phillips v The State of Western Australia. In respect of the aggravated burglary offence, I have considered cases such as Ashworth v The State of Western Australia [2006] WASCA 36; Nguyen v The State of Western Australia [2007] WASCA 114; Moody-Jackamarra v The State of Western Australia [2007] WASCA 7; Papertalk v The State of Western Australia [2011] WASCA 229.

19 In the end, the critical question is whether the total effective sentence was excessive, having regard to the appellant's overall criminality. Because of the large number of offences involved, the dealing in different drugs of addiction over a period of two weeks and the separate count of aggravated burglary, some accumulation of the sentences was appropriate. Her Honour applied the totality principle. Notwithstanding the appellant's pleas of guilty and the other mitigatory factors, the total effective sentence of 4 years and 3 months does not offend the first limb of the totality principle. I regard it as having a proper relationship to the appellant's overall offending having regard to all the circumstances, including his personal circumstances.

20 The proposed ground of appeal does not have a reasonable prospect of success. I would not grant leave to appeal. The appeal should be dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.