File No : IND 463 of 2004, IND 1534 of 2005

Criminal law - Application for leave to appeal against sentence - Whether reasonable prospects of succeeding - Totality principle - No parole eligibility - Whether reduction in sentence should be made - Turns on own facts

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

Offenders Probation and Parole Act 1963 (WA), s 37A(1)

Sentencing Act 1995 (WA), s 6(3), s 6(4), s 89(1), s 89(4)

Application for leave to appeal against sentence dismissed

Hubbard v Fisher [2001] WASCA 182

Mill v The Queen (1988) 166 CLR 59

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

R v Shaw (1989) 39 A Crim R 343

R v Swain (1989) 41 A Crim R 214

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Howell v The Queen (1989) 2 WAR 60

McLean v The Queen [1999] WASCA 209

Readhead v The State of Western Australia [2005] WASCA 191

Rigby v The State of Western Australia [2005] WASCA 134

Slowiak v The Queen [2004] WASCA 112

The State of Western Australia v Anderson [2004] WASCA 157

Verschuren v The Queen (1996) 17 WAR 467

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1 STEYTLER P: This is an application for leave to appeal against sentence.

2 On 8 December 2005 the applicant was convicted, on his own plea of guilty, on six charges of aggravated burglary, two charges of attempted aggravated burglary, one charge of stealing a motor vehicle and one charge of aggravated robbery. One of the offences of aggravated burglary was committed on 12 April 2003. The rest of the offences were committed by the applicant between 29 March 2005 and 30 May 2005. These offences were committed whilst the applicant was on parole. He had been released on parole on 23 February 2005.

3 The sentencing Judge rightly described the aggravated burglary and attempted aggravated burglary offences as having been brazen, all of them having been committed when the applicant knew or ought to have known that the inhabitants of the places burgled were at home. He said that those committed during 2005 were aggravated by the fact that the applicant was then on parole.

4 Apart from the fact of the applicant's pleas of guilty, there was little to be said in his favour by way of mitigation. He was then 33 years old and he had what can fairly be described as an appalling criminal record encompassing a number of counts of burglary and stealing motor vehicles. While the applicant suffered from a deprived background, the sentencing Judge rightly said that this could be given only limited effect, given the age of the applicant and his lengthy criminal record. He also said that the applicant showed a lack of empathy and respect for his victims and a reluctance to change his offending behaviour. He said that the only mitigating factors of real weight were the applicant's pleas of guilty, all but one of these having been made at the earliest opportunity.

5 The sentencing Judge imposed terms of 16 months' imprisonment in respect of each of the counts of aggravated burglary, save for that committed on 12 April 2003 in respect of which he imposed a term of 2 years' imprisonment. He imposed terms of 12 months' imprisonment in respect of each of the attempted aggravated burglaries, a term of 8 months' imprisonment in respect of the motor vehicle theft and a term of 2 years' imprisonment in respect of the aggravated robbery. He ordered that three of those sentences be served cumulatively, being the sentences imposed in respect of the aggravated burglary committed on 12 April 2003, an aggravated burglary committed on 30 March 2005 and the aggravated robbery (which was committed on 15 April 2005). The sentences imposed were otherwise ordered to be served concurrently. This gave rise to a total term of 5 years and 4 months' imprisonment. The sentencing Judge declined to order that the applicant be eligible for parole.

6 The applicant raised three grounds of appeal, only two of which are pressed, being grounds 2 and 3. I will deal with each in turn, applying the test provided for by s 27(2) of the Criminal Appeals Act 2004 (WA) in accordance with the judgment of this Court in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

7 By ground 2 the applicant contends that the sentencing Judge erred in law in not reducing the total sentence imposed by reason of the applicant declining a parole eligibility order.

8 By his counsel, the applicant had told the sentencing Judge that he did not want to be released on parole. The sentencing Judge said, in that respect, that this was not a matter which bound him but that he considered it to be relevant that the applicant did not have any confidence in his own ability to comply with a parole order. He referred, in any event, to s 89(4) of the Sentencing Act 1995 (WA), which provides that a court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least two of the following four factors:

"(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant."

He said that each of the first three factors was present in this case and also that there were other reasons for refusing parole, including the applicant's lack of empathy, his inability to change his behaviour and, in effect, his attitude towards parole. He added that he could see no reason why there should be an order for parole eligibility. There is not, and nor could there be, any challenge to the sentencing Judge's approach in this respect.

9 However, and as will be apparent from what I have already said, the applicant submits that the sentencing Judge should have reduced the total term of imprisonment imposed by him on account of the fact that parole was to be denied.

10 This Court has held, in the context of s 37A(1) of the Offenders Probation and Parole Act 1963 (WA), that a judge should not reduce an otherwise appropriate sentence by taking into account an intention not to make a parole order: R v Swain (1989) 41 A Crim R 214 at 216, 217 and 220. Section 37A(1) of the Offenders Probation and Parole Act then provided that:

"Where a Court sentences a person convicted of an offence to a term of imprisonment the Court may, if it considers that the making of an order under this subsection is appropriate, order that the convicted person be eligible for parole."

Malcolm CJ, with whom Brinsden J agreed, said, at 216, that the operation of the provision was triggered by the Court sentencing a person to a term of imprisonment and, in effect, that it was only when that was done that eligibility for parole fell to be considered.

11 However, counsel for the applicant submits that the position is different under s 89(1) of the Sentencing Act. That section reads as follows:

"A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order."

He submits that, under that section, once the sentencing Judge has decided to impose a term of imprisonment, but before deciding upon the length of the term, the issue of parole eligibility can be considered. He submits that, consequently, if the sentencing Judge decides against making an order that the offender is to be eligible for parole, that is a factor which should be taken into account in determining the length of the sentence to be imposed. He relies, in particular, upon the fact that in this case the offender had made it known that he did not wish to be considered for parole.

12 In my opinion that contention has no reasonable prospect of succeeding. The issue was considered by McLure JA in Hubbard v Fisher [2001] WASCA 182. Her Honour said, at [16], that s 89(1) of the Sentencing Act, when read with s 6(3) and s 6(4) thereof, meant that the sentencing decision is made before, and triggers the discretion in relation to, eligibility for parole and that there should consequently be no direct relationship between the length of the term of imprisonment and whether or not a person is to be made eligible for parole. Her Honour went on to say that it is not permissible to reduce or increase a sentence of imprisonment by reference to whether or not a person is to be made eligible for parole, referring to R v Shaw (1989) 39 A Crim R 343. She added that considerations which are relevant to the exercise of the discretion to grant eligibility for parole, such as the seriousness and nature of the offence and the circumstances of the commission of the offence, are also relevant in the exercise of the sentencing discretion. While this last comment was relied upon by counsel for the applicant in support of his submission, it is obvious from what was said by McLure JA that this did not alter the conclusion at which she had arrived to the effect that there should be no direct relationship between the length of the term of imprisonment and the answer to the question whether there should be eligibility for parole.

13 In my respectful opinion McLure JA was right in the conclusions at which she arrived and no sustainable basis has been shown for challenging them.

14 Ground 3 is to the effect that the sentencing Judge did not apply the totality principle, or, if he did, that he erred in the manner in which he applied it. That principle requires a sentencing judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences imposed for each is a just and appropriate measure of the total criminality involved: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 309, per McHugh J. The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence that is inappropriately long, having regard to the course of criminal conduct viewed as a whole: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, per Anderson J.

15 There is no doubt that the sentencing Judge had regard to and applied the totality principle. He said so expressly.

16 In contending that the principle was misapplied, counsel for the applicant points to the following passage in the reasons of the sentencing Judge. He said:

"I must, in addition, have regard to and apply the totality principle. I also must have regard to issues of concurrency and cumulacy. In fact I have to have regard to that issue before I have regard to the totality principle. Finally, I have to adjust sentences to take into account the transitional provisions of the Sentencing Legislation Amendment and Repeal Act."

Counsel for the applicant submits that this approach was erroneous and that the sentencing Judge ought to have fixed the terms that he considered to be appropriate for each offence, then decided whether they should be cumulative or concurrent, then reduced each sentence having regard to the transitional provisions and then determined whether or not the overall sentence offended totality principles by having, as he put it in the course of his oral submissions, a "last look" at the sentence imposed. He also submits that the sentencing Judge erred by applying the totality principle only in respect of the question whether the sentences were to be served cumulatively or concurrently and that it is not clear where or when he applied the transitional provisions.

17 I am not at all persuaded that it is reasonably arguable that the sentencing Judge erred in the approach which he took. It is plain from what he did that he fixed individual sentences for each offence and then had regard to questions of concurrency or cumulation, taking into account the totality principle. He said, in that respect, that separate offences committed at separate times would normally demand cumulative sentences but, for reasons of totality, he would make some of these concurrent. It is settled that, where the totality principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate. Indeed, in Mill v The Queen (1988) 166 CLR 59 at 63 the Court said that, where practicable, the former is to be preferred. His Honour's approach was consequently entirely appropriate and nothing further was required of him.

18 It also seems to me to be plain enough that the sentencing Judge took into account the transitional provisions in the course of fixing the sentences arrived at by him. He said in the course of his reasons that he was required to do so and, after sentencing the applicant, he confirmed that he had done so, in answer to a question posed by the prosecutor. There was nothing else that he was required to say or do in that regard and there is no apparent error in the approach which he took. This ground consequently has no reasonable prospect of succeeding.