[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
39 Although the three offences in charges 3-5 technically had a common element of driving, they were dealing with different circumstances surrounding the applicant's driving. The offence of take and use, was concerned with driving a vehicle without the consent of the owner. Charge 4 was concerned with the fact that the applicant was driving while disqualified. Charge 5 was concerned with the manner of driving. The applicant was not being punished three times for driving. In fact there is no offence of "driving a vehicle" and he was not being punished for that activity. The offences were distinct and separate acts of criminality that arose from the fact that he was driving a vehicle. I do not believe that the passage in Pearce quoted above required that the sentences be at least partly concurrent. There was no element of double punishment involved.
40 It was further argued that the offences involved "one course of conduct which gave rise, in effect to only one victim". With respect I do not understand the submission. There was one victim insofar as the owner of the vehicle was concerned. But that says nothing about whether the offences could, or should, be dealt with by concurrent sentences. In my opinion his Honour was entitled to make what orders he thought were appropriate so far as concurrence or accumulation was concerned provided that at the end of the day the overall sentence was appropriate to the total criminality involved in the three offences. In my opinion there was no error in making the sentence for count 3 cumulative upon the sentences for charges 4 and 5. The only error was that the sentences for charges 4 and 5 were made concurrent.
41 Although there was no separate ground that the sentences imposed were manifestly excessive, I am concerned at one aspect of his Honour's sentences. There is an increase in the term imposed for each of the take and use offences as well as some accumulation in the sentences. There was no difference between the offences of take and use in terms of their objective seriousness. There are very few variations in the manner in which the offence of take and use can be committed. It will be a relatively rare situation that one example of the offence can be more serious than another. In any event there was nothing in the facts in counts 1 and 2 that indicated that the penalty for count 2 should be higher than for count 1. Nor could the inclusion of the offence of receiving, having regard to the facts of that matter, nor the fact that the applicant was on bail have resulted in a penalty for count 3 that was so much greater than count 1. It is not appropriate in my opinion to increase the penalty for an offence because it is a second offence and then make that offence partly cumulative with the first offence.
42 In the pre-Pearce sentencing regime it was not uncommon for sentences for similar offences to be increased, offence by offence, so that the last offence carried the penalty for all offences because all the sentences were made concurrent. But that is no longer an appropriate way of achieving totality. It is erroneous for sentences for individual offences of the same type to be increased, simply because they happen to be a second or third offence and then for them to be made cumulative upon one another, as his Honour did, because in effect it results in double counting.
43 His Honour imposed a sentence of 22 months 15 days for the first take and drive, 2 years and 3 months for the second and 3 years for the third taking into account the matter on the form 1. As I have indicated I do not understand how the sentences for the three offences could differ except so far as the third charge took into account the receiving and the fact it was committed on bail. But those factors could not justify a sentence of 3 years having regard to the maximum penalty of 5 years and a discount of 25 per cent.
44 In my opinion the overall sentence is manifestly excessive and that is largely due to the increasing sentences for the take and drive offences. His Honour determined that the total sentence should be 6 years 6 months. But that had to be the overall sentence after the application of a 25 per cent discount for the pleas of guilty. It is difficult to determine what the starting sentence was before the application of the discount, a matter that raises some concern about how the sentences were determined. It was somewhere between 8½ years and 9 years. Such a starting point was manifestly excessive in my opinion.
45 It is important to note that, when sentencing for multiple offences, the discount has to apply to the overall sentence imposed and not just the individual sentences. This of course may be difficult when there are different discounts applicable to different sentences. A rigid application of Pearce means that the sentence for each offence, including any applicable discount, is determined and then attention paid to the issue of totality. But in considering totality the sentencer must not lose sight of the discount that has to apply to the total sentence and not just the individual sentences. Where all sentences are made concurrent, of course the problem does not arise. But where individual sentences are accumulated, either in whole or part, the discount can be eroded.
46 In my opinion the appropriate end point is an overall sentence of 6 years reduced by 25 per cent to give a total sentence of 4 years. The sentence takes into account the fact that the applicant's custody may be somewhat harsher by reason of his protective status. The Judge found special circumstances, with hesitation. I doubt that this decision was justified in light of his findings as to the likelihood of re-offending and lack of motivation to reform. However, I am not prepared to find special circumstances generally as in my opinion the applicant should spend at least 3 years in custody for the offences he committed. A parole period of 12 months is adequate for the applicant to receive some assistance by way of supervision. In coming to this view I have taken into account the applicant's affidavit filed in this Court.
47 I am imposing fixed terms for all offences except count 3. These sentences are the equivalent of a non-parole period in each case. A fixed term is chosen because of the sentence to be imposed on count 3 that will include a parole period. I have found special circumstances in fixing the non-parole period in count 3 by reason of the accumulation of sentences. The question of cumulation and concurrency has been driven by what is required having regard to totality. The discount for the plea has been taken into account in the over-all sentence imposed rather than the individual sentences. The sentences correspond with the order in which the Judge sentenced the applicant.
48 I propose the following orders: