Court of Appeal (WA)|2002-10-15|Before: Barker J

Dixon v Scott [2002] WASCA 280 (15 October 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIXON -v- SCOTT [2002] WASCA 280

Criminal law - Appeal against sentence for burglary - Whether sentence excessive - Sentence of 2 years' imprisonment for single offence cumulative on existing sentence for various offences including burglary - "One transaction rule" - Totality principle - Whether sentence for single offence effectively involved review of exercise of sentencing discretion on two earlier occasions - Whether sentence should have been discounted for guilty plea

Term of imprisonment reduced and made concurrent with existing term of

Attorney-General (SA) v Tichy (1982) 30 SASR 84

Cable v The Queen [2001] WASCA 390

Coyne v The Queen, unreported; SCt of WA; Library No 2325; 1 May 1978

Jarvis v The Queen (1993) 20 WAR 201

Little v The Queen [2001] WASCA 87

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Pop v The Queen [2000] WASCA 283

Waterman v Oliver (1911) 13 WALR 109

1 BARKER J: This is an appeal against sentence pursuant to the Justices Act 1902.

2 On 14 June 2002, the appellant appeared before Mr Brown SM in the Court of Petty Sessions of Western Australia at Perth and pleaded guilty to one charge of "burglary and commit offence in dwelling" contrary to s 401(2)(b) of the Criminal Code. The learned Magistrate, after hearing submissions as to sentence, sentenced the appellant to 2 years' imprisonment with eligibility for parole, to be served cumulatively upon a total effective sentence of 18 months' imprisonment the appellant was then serving.

3 The appellant says that the sentence so imposed upon him was manifestly excessive in all the circumstances of the case, having regard to the antecedents of the appellant and in particular having regard to the totality and concurrency of the offences in time and place to the previous offences for which the appellant was then serving a term of imprisonment.

4 The appellant also says that the learned Magistrate erred in failing to apply the "one transaction rule" when making the sentence cumulative upon the sentence the appellant was then serving.

5 The background to the appeal and circumstances in which the learned Magistrate imposed the sentence appealed against are as follows. Between March and May 2001, the appellant committed a number of burglary and other offences. However, he was not convicted of all such offences at the one time in the one court.

6 First, on 5 June 2001, the appellant was convicted in the District Court on indictment on his plea of guilty of a charge of aggravated burglary in company. Sentencing was adjourned to 22 June 2001 to allow the appellant to bring various summary matters to the District Court for sentence by way of a notice issued under s 32 of the Sentencing Act 1995, namely, three counts of stealing, seven counts of fraud, two counts of breach of bail, one count of burglary, one count of giving a false name and address and one count of possession of cannabis. All of the offences on the indictment and the s 32 notice were committed between 10 March 2001 and 17 March 2001.

7 The appellant was sentenced by the Chief Judge of the District Court on 22 June 2001 to 12 months' imprisonment for the aggravated burglary on the indictment, and 3 months' imprisonment for all of the summary matters, the latter to be served concurrently with the sentence for the indictable matter.

8 Secondly, on 14 January 2002, the appellant was convicted in the Court of Petty Sessions of Western Australia at Perth on his pleas of guilty of three counts of burglary, one count of fraud, one count of breach of bail and two counts of driving under suspension. The burglary offences were committed on 24 April 2001 and 13 May 2001.

9 The appellant was sentenced by Ms Wager SM to 12 months' imprisonment for each of the three burglaries, all to be served concurrently; 6 months' imprisonment for the fraud, to be served concurrently with the sentence for the burglaries, 6 months' imprisonment for each of the two charges of driving under suspension, to be served concurrently with each other, but cumulative on the sentences for the burglaries, and 3 months' imprisonment for the breach of bail, to be served concurrently with the other sentences.

10 Accordingly, the total sentence imposed on 14 January 2002 by her Honour was 18 months' imprisonment with eligibility for parole. The sentences were backdated to 20 December 2001 to take into account the time the appellant had already spent in custody.

11 It was in those circumstances that, on 14 June 2002, the applicant appeared before the learned Magistrate in the court below and pleaded guilty to the offence of burglary on a place ordinarily used for human habitation and received the sentence that is the subject of this appeal.

12 The offence the subject of the sentence was committed on 16 May 2001. The learned Magistrate imposed a term of 2 years' imprisonment to be served cumulatively upon the sentence already being served by the appellant - that imposed by Ms Wager SM. The appellant was made eligible for parole.

13 The learned Magistrate, having regarded the two earlier sentencing occasions, considered a number of sentencing factors and referred to various authorities, remarked as follows:

"Now when I look at the sentences that have been imposed on this young man, it's clear that they have been extremely lenient. In my view, looking at the totality of his offending at the time and noting the growing concern in the community, about the volume and scale of burglary offences - and all the distress that cause to victims - generally, hard-working citizens who go out trying to earn a living, and come home and find their property and life interrupted in this despicable manner.

I've looked at the total criminality of his actions during the period March to May 2001; and in particular in regard to the burglary offences; noting that all but one of those were committed whilst on bail.

In my view a total outcome of 4 years is about right. That in my view, is not a crushing sentence. It means that I am satisfied that today a 2 year sentence should be imposed for this single offence. And I direct that it be served cumulatively on any existing sentence now being served.

I'm not satisfied it's an appropriate case for suspension of the sentence, noting that perhaps he would wish to be reunited with his child and his family and other supporters.

But I don't believe that this is an occasion where there is any justification for imposing a suspended sentence.

However, given his age and the fact that there must always be some prospects for rehabilitation, I do make him eligible for parole."

14 The respondent, by counsel, acknowledged that the reference by the learned Magistrate to a "total outcome of 4 years" was incorrect in that the learned Magistrate appears to have concluded as a result of his earlier assessment of the background and existing sentences, that Ms Wager SM had sentenced the appellant to a term of imprisonment of 2 years. In fact, as noted above, on 14 January 2002, the total sentence imposed was 18 months' imprisonment with eligibility for parole. In the light of this fact, the total sentence actually imposed as a result of the learned Magistrate's sentence on 14 June 2002 was 31/2 years' imprisonment, comprising the sentence of 18 months' imprisonment imposed by the learned Magistrate on 14 January 2002 and the 2 years' imprisonment imposed by the learned Magistrate on 14 June 2002, which is the subject of this appeal.

15 In my opinion, the approach to the sentencing process evinced in the sentencing remarks of the learned Magistrate was, with respect, inappropriate. The learned Magistrate, in effect, reviewed the sentences imposed by the Chief Judge of the District Court and Ms Wager SM in relation to the offences that occurred in the period March to May 2001, divined that they were "extremely lenient", determined that a more appropriate outcome would have been 4 years' imprisonment and so calculated that, in order to achieve this outcome, it was necessary for him to impose a 2-year sentence for the "single offence" before him.

16 In so doing, it cannot be said, as counsel for the respondent contended at the hearing of this appeal, that the learned Magistrate on 14 June 2002, truly directed his attention to what was the appropriate sentence for the particular offence before him before determining whether such sentence should be cumulative or concurrent with the existing sentence the appellant was serving, and the relevance of the totality principle in such circumstances. Rather, he impermissibly focussed on the leniency of sentences imposed by earlier judicial officers, which he plainly considered to be inadequate and, by an inductive method of reasoning, calculated the term of imprisonment that was required on this occasion in respect of the single offence.

17 In approaching the sentencing process in the way he did, the learned Magistrate, in my opinion, failed properly to regard the relevant principles of sentencing. The primary principle is that set out in s 6(1) of the Sentencing Act 1995, that a sentence imposed on an offender "must be commensurate with the seriousness of the offence".

18 Section 6(2) of the Sentencing Act provides that the seriousness of an offence must be determined by taking into account -

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

19 Section 6(3) of the Sentencing Act provides that subs (1) does not prevent the reduction of a sentence because of any mitigating factors or any "rule of law as to the totality of sentences".

20 Section 6(4) provides that a Court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

21 Section 7(1) provides that aggravating factors are factors which, in the Court's opinion, increase the culpability of the offender. Section 7(2) sets out matters which do not aggravate an offence.

22 Section 8(1) of the Sentencing Act provides that mitigating factors are factors which, in the Court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. By s 8(2), a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or an indication is given that it will be made, the greater the mitigation.

23 The "totality principle", which appears to be recognised by s 6(3)(b) of the Sentencing Act, was summarised by McHugh J in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved (see Mill v The Queen (1988) 166 CLR 59 at 63). In Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536, at 541, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi (Unreported; Court of Criminal Appeal of SA; 20 April 1988):

'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged (R v Holder [1983] 3 NSWLR 245, at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences (Holder [1983] 3 NSWLR 245, at 260).

Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing Judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.

The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon ((1994) 71 A Crim R 459, at 466):

'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the Judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.' "

24 As Kennedy J noted in Sikaloski v The Queen [2000] WASCA 387, that passage must now be read in the light of Pearce v The Queen (1998) 194 CLR 610, in which McHugh, Hayne and Callinan JJ said, at 623 - 624:

"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59)."

25 In Sikaloski v The Queen, the Court of Criminal Appeal applied these statements of principle of the High Court. Kennedy J, with whom Wallwork and Parker JJ agreed, found that in the circumstances of the case, the learned sentencing Judge failed to have regard to the sentences which the applicant was already serving. He, therefore, failed to apply the totality principle to all the sentences, to those presently being served as well as to those about to be imposed.

26 In the instant case, the single offence before the learned Magistrate was that of burglary in a dwelling. Burglary is a significant offence. The Court of Criminal Appeal has, on a number of occasions over the last number of years, held that the sentence imposed for such offences should reflect their seriousness and the community's abhorrence and frustration with the prevalence of the offence. For example, in Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997, Malcolm CJ (with whom Wallwork and White JJ agreed) found that a term of imprisonment was appropriate for such an offence and stated:

"The number and seriousness of the offences committed by the applicant meant that imprisonment was inevitable. It is now clear that the prevalence of the offence of burglary is very great, particularly in the case of burglaries which are being committed for the purpose of obtaining money to buy drugs. That may mean that the range of sentences commonly imposed, which was dealt with by this Court is Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989, may need to be reconsidered and sentences firmed up in the manner referred to by Burt CJ in the context of armed robbery in The Queen v Peterson [1984] WAR 329 at 331 - 332."

27 Nonetheless, in Little the Chief Justice found that a total sentence of 4 years' imprisonment was manifestly excessive, having regard to a plea of guilty in relation to three of the counts on the indictment that following his voluntary disclosure of those offences to the police and the totality of the sentence which was imposed.

28 Little, therefore, suggested that there may need to be a "firming up" of the sentences imposed for such burglaries, and, indeed, may be taken as indicating a step in that direction.

29 In Pezzino v The Queen, unreported; CCA SCt of WA; Library No 970308; 19 June 1997, the Court of Criminal Appeal completed to the firming-up process commenced in Little. Franklyn J at p 4 of his reasons referred to the range of sentences discussed in Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1989 and the firming-up forecast in Little v The Queen and then expressed the view that:

"In my opinion, a penalty of 18 months' imprisonment for the present offence in its particular circumstances is towards the lower end of the range of penalties appropriate, even for a youthful offender, where imprisonment is appropriate. The upper extent of the range will vary depending on the particular circumstances of the case."

Franklyn J thereby can be taken to have suggested that firming-up was required. His view was that 18 months' imprisonment for the burglary offence was "towards the lower end" of the range of penalties appropriate, even for a youthful offender. His Honour declined from specifying the upper extent of the range, rightly, with respect, noting that it will vary depending on the particular circumstances of the case.

30 White J, whose reasons were said by Kennedy J to "generally express my own reasons for joining in the order refusing leave to appeal", also referred to Cheshire and Little and stated at p 11 that it is apparent that the range of sentences referred to in Cheshire "are no longer an appropriate guideline to the sentences that should be imposed for burglary at this time". His Honour considered that the sentence imposed in Pezzino was:

" ... well within the range of sound sentencing discretion and that it gave full effect to the mitigating factors of the applicant's youth, his personal circumstances and his plea of guilty."

The sentence in question comprised 18 months' imprisonment in respect of each of two offences of burglary, made cumulative, that is, 3 years' imprisonment in total.

31 In the instant case, the learned Magistrate, in imposing sentence, had regard to both Little and Pezzino and expressed the view that Pezzino "took the view that the starting-point would be 18 months and upwards" for such offences. In my view, as a result of Pezzino, it may be stated more accurately that a sentence of 18 months' imprisonment for a burglary offence, especially one committed for the purpose of obtaining money to buy drugs, as explained by the Chief Justice in Little, is towards the lower end of the range of penalties appropriate, even for a youthful offender, as Franklyn J stated in Pezzino. Or, as White J stated, a term of imprisonment of 18 months may be considered "within the range of sound sentencing discretion". In Pezzino it was not said that 18 months is the "starting-point" or the minimum for such an offence, as the learned Magistrate stated.

32 Nonetheless, having regard to the firming-up process undertaken in Pezzino, and having regard to the seriousness of the offence in the manner specified in s 6 of the Sentencing Act, it is open to contend that a sentence of 2 years' imprisonment for a subsequent offence of burglary of the type here is within range of the appropriate sentence, subject to other sentencing considerations. If the learned Magistrate had addressed the issue in this way, he should then have had regard to any aggravating factors and mitigating factors before considering questions of cumulation or concurrence, as well as questions of totality. Such an approach would have reflected the approach suggested by the Court of Criminal Appeal in Sikaloski v The Queen (supra). I am not satisfied that that is what the learned Magistrate in fact did on this occasion.

33 For example, the learned Magistrate did not then proceed to consider (nor did he consider at any other time) whether the appellant's plea of guilty to the single offence should be considered a mitigating factor that should result in a substantial discount of the sentence.

34 Counsel for the respondent effectively conceded that the learned Magistrate erred in failing to apply any reduction for the plea of guilty. I consider the concession was well-made.

35 It is now well-established, as counsel for the respondent accepted, that in the absence of some particular circumstances militating against such a decision, an early plea of guilty should attract a substantial discount in sentence. It seems that this principle should apply whether or not an early plea is made under the "fast-track" system in the District Court or the Supreme Court, or whether the plea is made in the less formal pleading circumstances of the Court of Petty Sessions.

36 Over a number of years, the Court of Criminal Appeal has stated that not only should there be a discount on sentence for an early plea of guilty, but that the discount should usually be within a fixed range: Foster v D'Anna (1992) 59 A Crim R 14; Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 per Kennedy J; Heryadi (1998) 98 A Crim R 578 per Ipp J at 584; Little v The Queen (supra) per the Court at 13. Most recently, the Court of Criminal Appeal in Radebe v The Queen [2001] WASCA 254 made it plain that the discount in such circumstances should usually be at least 25 per cent following the plea of guilty. McKechnie J (with whom Malcolm CJ and Anderson J agreed), having considered the relevant authorities, noted at [18] that:

" ... an early plea of guilty should always be rewarded, not because of any virtue in the individual, but as an acknowledgement that the early plea of guilty has a beneficial effect in an overcrowded criminal justice system."

"Where an offender is caught red-handed, it is tempting to make little reduction for a subsequent plea of guilty even if made at the first available opportunity. Nevertheless, the matters of high policy essential for the effective operation of the criminal justice system demand a substantial reduction. Following Little, it is likely to be an unusual case where a sentence for a fast-track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty."

37 In my view, the same principle should apply to pleas of guilty made in the Court of Petty Sessions, where the same matters of "high policy" are at play.

38 If this principle had been applied in this case, the 2 years' imprisonment initially considered as appropriate by the learned Magistrate would have been discounted by at least 25 per cent, thereby reducing the sentence to one of 18 months' imprisonment.

39 If the learned Magistrate had continued to follow the approach suggested by Sikaloski, he would have, after considering any aggravating and mitigating factors, also considered the question of the totality principle. He would have noted that the appellant was presently serving a sentence of an effective total of 18 months' imprisonment (not the 2 years he appears to have calculated). He would then have regarded the principle in Mill v The Queen (1998) 166 CLR 59, referred to in Sikaloski.

40 In Mill v The Queen, the appellant had committed three armed robberies, two in Victoria and one in Queensland, within a 6-week period in December 1979 and January 1980. In September 1980, he was sentenced in respect of the Victorian offences to 10 years' imprisonment with a non-parole period of 8 years. On his release on parole in Victoria, he was arrested and returned to Queensland, where he was convicted of the Queensland offence and sentenced to imprisonment for 8 years, with a recommendation that he be considered for parole after 3 years in recognition of the fact that he had already served 8 years for the Victorian crimes.

41 It was held by the High Court that, in deciding what was the appropriate sentence for the Queensland offence, the Judge should have considered what effective head sentence would have been likely to have been imposed if the accused had committed all three offences in one jurisdiction and had been sentenced at the same time. The Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) applied the totality principle as discussed in R v Todd [1982] 2 NSWLR 517 at 519 - 520, where Street CJ said:

" ... it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences ...

... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time been offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

"In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the appellant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to 8 years on the first count, 8 years with 6 years of it concurrent on the second count, and 8 years cumulative on the third count, making an aggregate head sentence of 18 years. That, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of 8 years with 5 or 6 years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either 12 or 13 years. An appropriate non-parole period may well not have been much more than the 8 years actually imposed by the Victorian court."

43 Their Honours then went on to note that, in the particular circumstances in Mill v The Queen where the additional offence had occurred in a different State from that in which the appellant had first been sentenced:

"Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence than reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries."

The statutory authority difficulty is, of course, not relevant in the present case.

44 These principles required the learned Magistrate, in properly exercising his sentencing discretion, to take into account the existing total effective sentence of 18 months' imprisonment which the appellant was at that time serving. He was required to do this, to adapt the words of Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459, so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.

45 If the learned Magistrate had adopted this approach, he would have recognised that, leaving aside the matters for which the appellant had first been sentenced in the District Court, Ms Wager SM had sentenced the appellant to a total effective sentence of 18 months' imprisonment on three counts of burglary, one count of fraud, one count of breach of bail and two counts of driving under suspension, where the burglary offences had been committed on 24 April 2001 and 13 May 2002 - very close in time to the single offence for which he was required to sentence.

46 As it transpires, in assessing the "total criminality" of the appellant's conduct, the learned Magistrate also took into account the offences for which the appellant had first been sentenced in the District Court that were committed between 10 March 2001 and 17 March 2001, comprising the three counts of stealing, seven counts of fraud, two counts of breach of bail, one count of burglary, one count of giving a false name and address and one count of possession of cannabis. For these various offences as noted above, the appellant had been sentenced to an effective total of 12 months' imprisonment.

47 While it may have been that, if the second sentencing exercise concluded by Ms Wager SM had not intervened, the learned Magistrate might have been entitled to adopt the view that the single matter for which he was obliged to sentence the appellant indicated a degree of seriousness not previously taken into account in the sentencing process (which I would doubt), the facts here were that Ms Wager SM sentenced the appellant on the second occasion knowing full well what sentence had been imposed by the District Court on the first occasion, and had found that an effective total sentence of 18 months' imprisonment for the various offences listed above, was appropriate.

48 In those circumstances, to adapt the words of the Court in Mill v The Queen (supra), it is most unlikely that the appellant would have been sentenced to an effective total sentence of 18 months' imprisonment on the various offences for which Ms Wager SM sentenced the appellant on the second occasion on 14 January 2002, including 12 months' imprisonment for each of three burglaries, and then have sentenced the appellant to a further term of imprisonment of 2 years (or 18 months if a 25 per cent discount had been applied) for burglary on this single offence cumulative on the sentence for the other three burglaries, particularly in circumstances where the last-mentioned single burglary offence occurred on 16 May 2001 and the other burglary offences had occurred on 24 April and 13 May 2001.

49 Rather, as suggested by the Court in Mill v The Queen the "notional exercise" which the Court had described would, if applied in this case, tend towards a conclusion that a sentencing court dealing with all of these burglary offences at the same time would have dealt with the single offence that came before the learned Magistrate in a similar manner. In my view, the learned Magistrate on 14 January 2002 would have been extremely unlikely to have imposed any additional term of imprisonment to the 12 months' imprisonment for each of the three burglaries that she then imposed, or the total effective 18 months' imprisonment she then imposed.

50 This view is also supported by an understanding of an aspect of the totality principle referred to by Kirby J in Postiglione (supra) at CLR 340. Kirby J explained that the totality principle has a dual aspect, as explained recently in the Supreme Court of Canada in R v M (CA) (1996) 105 CCC(3d) 327 at 319. Having recited D A Thomas, "Principles of Sentencing", 2nd ed, (1979) at p 56, Lamer CJ at 349 said:

"The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender."

Kirby J added, however, that there is a second task for the totality principle to perform and that is that stated in Ruby, "Sentencing", 4th ed, (1994) pp 44 - 45 as follows:

"The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate 'just and appropriate'. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects."

51 Certainly in a case such as this, where the aggregate sentence imposed by the learned Magistrate was thought by him to be 4 years (in fact, 31/2 years), it may be seen that such sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved. Not in the District Court, not before Ms Wager SM and not before the learned Magistrate was it ever thought that any one of the particular offences for which the appellant was sentenced merited a term of 4 years' imprisonment, or 31/2 years' imprisonment. This is an additional reason why, in the circumstances of this case, the sentencing discretion should be considered to have miscarried.

52 In those circumstances, it appears to me that the learned Magistrate, with respect, adopted an impermissible approach to the exercise of the sentencing discretion. While, with respect, he correctly commenced the sentencing exercise by beginning to consider the seriousness of the offence and by asking himself what the appropriate sentence would be for the single offence of burglary, as the remarks of McHugh, Hayne and Callinan JJ in Pearce v The Queen (supra) cited above suggest should be done before questions of cumulation or concurrence, as well as questions of totality, are considered, the learned Magistrate soon wavered from that approach. The transcript of the learned Magistrate's sentencing remarks shows that, while he considered the starting-point for a term of imprisonment "would be 18 months and upwards", he did not then form a concluded a view as to what sentence for the single offence was appropriate before considering the other relevant sentencing principles. He did not then formulate the view that 2 years' imprisonment was appropriate and proceed to consider a discount for a plea of guilty. Rather, he immediately had regard to what sentences had been imposed to this point and expressed the view that "it's clear that they have been extremely lenient". The learned Magistrate then regarded the "totality of his offending" and noted the "growing concern in the community about the volume and scale of burglary offences". In that context, he formed the view that a "total outcome of 4 years is about right". He considered that not to be a "crushing sentence". The difficulty with this approach, is that the learned Magistrate was not, on this occasion, called upon to sentence for anything but the single offence. His approach was to have regard, in my view, retrospectively, for what in his view the "total criminality" of the appellant's actions during the period March to May 2001 should have reflected by way of a term of imprisonment and then, having regard to the sentence actually imposed for which the appellant was still serving a sentence, calculated that a "2 year sentence should be imposed for this single offence".

53 The result of the approach taken by the learned Magistrate, in my view, is that he, in effect, reviewed the earlier sentence imposed by Ms Wager SM, determined that it was inadequate, "topped it up", to put it colloquially, and then calculated what additional cumulative sentence was required in respect of the single offence before him in order to impose a sentence that, in total, reflected the "growing concern of the community about the volume and scale of burglary offences".

54 To put the matter bluntly, the learned Magistrate, in taking this approach to sentencing, inverted the recommended sentencing approach laid down in the Sentencing Act and confirmed by such authorities as Pearce v The Queen (supra).

55 Counsel for the respondent submitted that the decision of Wheeler J in Dowson v Youldon [2001] WASCA 369 supported the sentencing approach taken by the learned Magistrate in this case. I do not think it does. Rather, it confirms the correct approach to be adopted. In Dowson v Youldon, the Court considered an appeal from decisions given in the Court of Petty Sessions on 9 January 2001 and 5 June 2001. On the first occasion, a total effective sentence of 12 months' imprisonment without eligibility for parole was imposed on the defendant, while on the second occasion he received a total of effective sentence of 15 months' imprisonment with eligibility for parole. It was contended on appeal, inter alia, that on the totality principle the sentence imposed on the second occasion was excessive.

56 The facts disclose that on the first occasion, sentences were imposed in respect of 11 different offences involving stealing, receiving, fraud and various traffic offences. On the second occasion, however, there were some 42 offences involving receiving, fraud and stealing in respect of which the sentences were imposed. Wheeler J at par [21] rejected a submission that the learned Magistrate failed to have regard to the totality principle on the second occasion and stated:

"In this context, I would wish to make one observation. While I accept that, as this Court has on a number of occasions pointed out, it will often be the case that not as much emphasis is required in passing a second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case (Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, Jarvis v The Queen (1998) 20 WAR 201) it is the issue of proportionality between the total sentence imposed and the totality of the offending which is of principal importance. It may be, on occasion, that the offences for which the offender is sentenced on a later occasion reveal that a relatively lenient sentence has been imposed on the earlier occasion or occasions, because the offender may have had the advantage of presumptions which are not correct. In this instance, for example, it seems clear enough that the appellant presented before Hammond CJDC as a person who, whilst he had a significant history of offending, had committed only one offence at about the relevant time. The prospect for his successful rehabilitation, and no doubt the genuineness of his remorse, were assessed against that background. The offences which later came before her Worship reveal that he had been about the relevant time engaged in extensive - indeed for a short period almost continuous - criminal conduct. When one considers the total sentence imposed of some 45 months for 42 offences to which I have referred, it does not seem to me that the submission that her Worship disregarded the totality principle can be made out."

57 In short, Dowson v Youldon was a case where a large number of offences, which plainly had not been taken into account in the earlier sentencing process, were considered on their own merits and an appropriate sentence imposed having regard to their overall seriousness. In such circumstances, the totality principle did not deny the appropriateness of a total effective sentence of 15 months' imprisonment with eligibility for parole, additional to the earlier total effective sentence of 12 months' imprisonment.

58 However, the appeal before me does not involve a set of facts of such a kind. On the occasion of the sentence appealed from, there was only one offence, not 42. In this case, the more numerous offences, including those of burglary, had already been the subject of the sentence imposed by Ms Wager SM on the second occasion. It is not surprising that, in Dowson v Youldon, the learned Magistrate should have considered that the additional 42 offences, given their nature and number, merited a cumulative sentence by way of imprisonment. If those matters had been raised on the first occasion, it would not have been surprising if a separate effective total period of imprisonment had been imposed cumulative upon or partly concurrent only with the first sentence by way of imprisonment. Wheeler J appears to me to have accepted that view.

59 As to the appellant's further ground that, in the exercise of the sentencing discretion, the learned Magistrate failed to apply the so-called "one transaction rule", I do not consider that that principle has application in the circumstances of this case.

60 The general rule, as counsel for the respondent on the appeal accepted, is that where a number of offences arise out of the same transaction, the sentence imposed should usually be made concurrent. In Ruane v R (1979) 1 A Crim R 284, Brinsden J referred to Thomas, "Principles of Sentencing", 1st ed (1970) and said:

"The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident, 'if they are essentially different in character and involve different subject matter' at p 53 by the same author, it is stated 'where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive'. That is because he offences, when taken together, constitute a single invasion of the same legally protected interest. But the fact that offences are committed simultaneously, or close together in time, does not necessarily mean they amount to a single transaction."

See also Pieri v The Queen [2001] WASCA 357 per Einfeld AJ at 13 and Roberts-Smith J at 6 and 8.

61 In this case, it cannot be said that the single offence for which the learned Magistrate was obliged to sentence the appellant was one of a number of offences which, when taken together, constituted a single invasion of the same legally protected interest.

62 Nonetheless, it is generally accepted that, in circumstances such as the present, where the offence is closely related in nature and in time to a number of other offences for which a sentence is being served, proper consideration should be given to making the sentence for the offence concurrent with that imposed for the other offences. Of course, the question whether a sentence should be made concurrent or cumulative depends on individual judgment: see The Queen v White [2002] WASCA 112 per McKechnie J at 5.

63 In the event, for the reasons set out above, I find that the sentence imposed was excessive. In short, not only was a 2-year term of imprisonment excessive for the single offence of burglary by reason of the failure of the learned Magistrate to accord a discount on sentence on account of the guilty plea, but also the order that the sentence be imposed cumulatively on the existing sentence of 18 months' imprisonment the appellant was serving at the time of the appeal, offended the totality principle and was excessive in the circumstances.

64 Accordingly, I would allow the appeal. I consider the appropriate sentence should have been a sentence of no more than 18 months' imprisonment to be served concurrently with the total effective sentence of 18 months' imprisonment for which Ms Wager SM sentenced the appellant on 14 January 2002, backdated to commence on 21 December 2001, and I would substitute the sentence imposed by the learned Magistrate with a sentence in these terms. I will, however, hear from counsel for the appellant and the respondent as to the precise terms of the substitute sentence, having regard to the existing sentences being served by the appellant at the time of the hearing of this appeal.

Dixon v Scott [2002] WASCA 280

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Judgment (104 paragraphs)

Dixon v Scott [2002] WASCA 280 (15 October 2002)

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Cases Cited (9)