Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality principle.

Wise v R [1965] Tas SR 196; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Harland-White v R A1/1998, applied.

Judgment Number: [2004] TASSC 120

1 The applicant seeks a review of orders made in a court of petty sessions that he be sentenced to six months' imprisonment, cumulative to the sentence he was then serving, and that he be disqualified from holding or obtaining a drivers licence for 18 months following his release from prison. Those orders were made upon the applicant's pleas of guilty to:

* four charges of breach of bail, contrary to the Bail Act 1994, s5(4);

* one charge of receiving stolen property, contrary to the Criminal Code, s258;

* one charge of being in unlawful possession of $300, contrary to the Police Offences Act 1935, s39(2);

* one charge of using controlled plants or its products, contrary to the Misuse of Drugs Act 2003, s25; and

* one charge of possessing a thing used for administration of a controlled drug, contrary to the Misuse of Drugs Act, s23.

2 All these offences were committed between December 2002 and February 2003. The complaints by which the applicant was charged also charged him with a large number of crimes which were also committed between December 2002 and February 2003. These crimes were dealt with in this Court upon the applicant's pleas of guilty, prior to the subject offences being dealt with in a court of petty sessions. The learned sentencing judge imposed a sentence of three years' imprisonment to date from 21 February 2003 when he was taken into custody. There was no order for eligibility of parole. At the time of imposing sentence, the learned sentencing judge said:

"Dale Andrew Draper pleaded guilty to 23 counts of burglary, 21 counts of stealing and one count of receiving.

With one possible exception, the crimes were committed in a two month period between December 2002 and February 2003. The value of property stolen or damaged in the course of committing them exceeded $110,000. About half of the crimes concerned thefts from parked cars and the balance were from commercial premises. The public were eventually protected from him with his arrest on 21 February 2003, and since then he has been in custody.

The cost and inconvenience to the public that has been caused by his crimes have been enormous. His motivation was to obtain money for gambling and drugs. In other words he was purely selfish and has no thoughts for the feelings of others.

He was aged 21. Prior to these crimes he already had a bad criminal record in this State, which I infer commenced shortly after he arrived here from Queensland. He had over 70 crimes and offences of dishonesty on his record, among others, one of which was arson. He had not taken advantage of community service orders and suspended imprisonment. He had spent much of his time in prison. He twice had the benefit of release on parole and he breached it on both occasions. He had only just come out of prison when he commenced this series of crime.

Apart from his admissions and plea of guilty there are no mitigating factors. I was told that he is under protection in prison and that life there will be harder for him than for most others. I suspect that he has himself to thank for that, but I do not know. He says he wants to reform. Only time will tell as to that, but his sentence will not be reduced because of that statement.

I regard it as offensive that he should become eligible for parole having regard to his failures to comply with parole conditions on the two occasions he has had its benefit."

3 There were some links between the offences which are the subject of this motion to review and the crimes in respect of which the applicant was sentenced to three years' imprisonment:

* he was sentenced for stealing some property from one of the motor vehicles he "stole";

* one of the motor vehicles which he "stole" was used to commit two burglaries for which the applicant was sentenced in the Supreme Court;

* it may be also noted that two of the counts of driving whilst disqualified relate to driving whilst he was using the motor vehicles that he had stolen.

4 All four of the breaches of the Bail Act, s5(4), were committed when the applicant was absent from his home between 7pm and 8am contrary to a condition of his bail. The first of these breaches was committed just three days after bail had been granted.

5 The applicant has, as the learned sentencing judge noted, a bad criminal record with over 70 convictions for crimes and offences of dishonesty. Nineteen of those 70 convictions were for motor vehicle stealing. In addition, the applicant has two prior convictions for failing to attend for community service orders, two prior convictions for possessing and using cannabis, and one prior conviction for possessing a smoking implement. On 17 January 2003, the applicant was convicted on three charges of breaching a condition of bail. On 27 January 2003, he was again given bail. The applicant was back in the court of petty sessions on 7 February 2003 and there convicted of four offences of breaching a condition of his bail. Notwithstanding that appearance and those convictions, the applicant continued to offend by breaching a condition of his bail on 21 February 2003. This breach was one of the four breaches that is subject to this motion to review.

6 Apart from the pleas of guilty, there are no mitigating circumstances surrounding the commission of the offences or the offender.

7 The motion to review asserts that the learned magistrate erred "in fact and law" by making the period of imprisonment cumulative to, rather than concurrent with, the sentence of three years' imprisonment. Plainly that order was not an error of either fact or law. This ground should be read as a particular of the first ground which asserts that the penalty is manifestly excessive. That was how Mr Tucker, who appeared for the applicant, argued the motion to review.

8 The "totality principle" is well established. It is stated by D H Thomas in Principles of Sentencing, 2nd ed, 57 - 58, in the following terms:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'."

9 This principle has long been recognised in this State. In Wise v R [1965] Tas SR 196, Neasey J said, at 209:

"That is not to say that a judge imposing sentence in respect of multiple offences need pay no regard to the total sentence where the element of repetition in the sense referred to therein is absent. Generally I would think it would be his duty to do so, in order to see that the total of individual sentences does not become out of proportion to the totality of the offences, having regard to the many considerations a judicial officer imposing penalty for crime must take into account."

That passage was approved in Bruce v R [1971] Tas SR 22 at 36.

10 The totality principle applies to a person who, like the applicant, is already serving a sentence of imprisonment when the impugned sentence is handed down. See Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Harland-White v R A1/1998. In Postiglione, Dawson and Gaudron JJ said, at 304:

"... the totality principle serves to ensure that an offender is not subjected to 'a crushing sentence' not in keeping with his record and prospects ... see Thomas (supra) at 57 - 58".

11 The learned magistrate was alert to the totality principle, for he said, in his comments on passing sentence:

"But I note that there are three charges of motor vehicle stealing to which you have pleaded guilty and on two of the occasions when you stole motor vehicles you drove whilst disqualified and again on two - and on an occasion in relation to one of those motor vehicles you used it to burgle two premises I am told. The only matter for consideration in my view is whether his Honour's sentence of three years should be added to. Whether by adding to that sentence you would receive a sentence that would be too crushing.

In my view these offences I've just referred to, together with your contraventions of bail being absent from curfew conditions and the charges of receiving stolen property and unlawful possession, having regard to your record are all deserving of imprisonment and in a general sense in my view the offences you face here today should be met with a term of not less in any event than something of the order of 12 months' imprisonment. I have regard to the fact that you have three years to face. It may be that 12 months might add just a tad too much to that sentence."

12 A total sentence of 3½ years without parole for the totality of the criminal conduct is not, in the circumstances of these offences, and in the circumstances of this offender, excessive or crushing. The applicant's record shows that he is already a confirmed recidivist. Punishment and incapacitation are significant factors in the proper exercise of the sentencing discretion. Not to impose any extra effective time in custody for three offences of motor vehicle stealing, one offence of attempted motor vehicle stealing, and four blatant breaches of bail curfew conditions, imposed no doubt to curb further unlawful conduct, would not give proper weight to those factors. There were no contrary indicators such as remorse or a prospect of rehabilitation. In these circumstances, I am of the view that a sentence of six months' imprisonment, to commence at the expiration of the sentence of three years, was well within the proper exercise of the learned magistrate's sentencing discretion. The motion to review is dismissed.