House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Lenton v The Queen [2001] WASCA 392

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

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

Mill v The Queen (1988) 166 CLR 59

Novak (1993) 69 A Crim R 145

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

1 MURRAY J: This is an application for leave to appeal against sentence. On 29 October 2002, after a seven day trial before a Judge of the District Court and a jury, the applicant was convicted of four offences -

(1) on 5 February 2000, an aggravated burglary upon the premises of the Department of Training and Employment. The circumstance of aggravation was that the applicant was in company with another, one O'Grady,

(2) on or about 8 March 2000 a fraud committed upon one Tamara Gavrilovic by inducing her to pay $10,000 to a car dealer,

(3) between 19 March and 2 June 2000 receiving a stolen television and video equipment and

(4) on 27 April 2000 a further fraud committed upon Ms Gavrilovic by obtaining $20,000 from her.

2 Her Honour the trial Judge ordered a pre-sentence report, a psychological report and a medical report in relation to physical injuries previously received by the applicant. Those reports and no less than eighteen references and reports concerning the applicant's de facto wife were before her Honour when, on 5 December 2002, her Honour sentenced the applicant to imprisonment for 1 year for the burglary offence, to imprisonment for 1 year cumulative for the first of the fraud offences, to 18 months imprisonment concurrent for the receiving offence and to a further 2 years imprisonment cumulative for the second fraud offence. The total term was therefore one of 4 years imprisonment. Her Honour ordered eligibility for parole and backdated the sentences to 29 October 2002 when, upon his conviction, the applicant was first taken into custody.

3 The applicant applies for leave to appeal against those sentences on five grounds. Grounds 1 and 5 may be taken together. They allege that there was a lack of parity between the sentences imposed upon the applicant and those imposed upon O'Grady, whose role, the applicant contends, was wrongly downgraded in comparison to his. Ground 2 alleges that all the sentences should have been permitted to be served concurrently. Ground 3 may be regarded as a related ground. It alleges that her Honour failed to properly apply the totality principle. And finally by ground 4 it is contended that her Honour failed to properly take into account the mitigating circumstances applicable to the applicant's case.

4 The facts as found by the trial Judge show that the offences arose out of the applicant's relationship with O'Grady. They had been friends since their schooldays. O'Grady was employed by a business college. He used college money for private purposes. It was discovered and he was required to repay the sum of about $6000. O'Grady repaid the money, but to make it appear that it had been repaid by the person who had received it, he obtained the applicant's cooperation to pose as that individual and pretend to the college that the applicant had repaid the funds, explaining how the money had come to be received without fault on the part of O'Grady, so that he could keep his job.

5 The applicant saw this as a means by which he might defraud O'Grady. He told O'Grady that the plot had been discovered by a third party who was blackmailing them, demanding $25,000 not to inform the college. O'Grady did not have $25,000. The applicant falsely told O'Grady that he would pay the sum demanded by the blackmailer. The applicant told O'Grady that he had raised money by taking a loan from a "loan shark" at a usurious rate of interest. The sum requiring to be repaid was said to be escalating rapidly. The whole story was false, but O'Grady believed it.

6 By this time O'Grady had changed his employment and was working with the Department of Training and Employment. He knew that on the premises there was a safe which contained about $20,000. O'Grady and the applicant arranged to break and enter the premises and steal the safe. This was the burglary of which the applicant was convicted.

7 The two men were unsuccessful in taking the safe away. Later, it seems, the safe was opened on the premises by the use of its combination lock. $20,000 was stolen from it and $10,000 of that sum was deposited in the applicant's bank account. He was acquitted of involvement in those offences of which, on his own plea, O'Grady was convicted, together with the burglary of which the applicant was convicted.

8 Her Honour then dealt with the fraud offences committed upon Ms Gavrilovic from which the applicant benefited to the amount of $30,000. Gavrilovic was a schoolteacher who at one stage was involved in a relationship with O'Grady and who remained friendly with him after that relationship ended. O'Grady shared her house.

9 The first of the fraud offences was to obtain $10,000 to assist to repay the debt allegedly said to have been incurred when the applicant supposedly raised the loan to help O'Grady out of his original predicament. Ms Gavrilovic was willing to pay the $10,000, but only by cheque. The applicant told O'Grady that his girlfriend had obtained a loan to buy a car. The applicant said that he would use the loan money to pay off the debt incurred and thereby to meet the demands of the extortionist. It was arranged that Ms Gavrilovic would make her cheque payable to the car dealer. The money was paid to that dealer and the applicant obtained a motor vehicle.

10 However, it appears that the applicant kept up the pressure on O'Grady, continuing to assert that the people from whom he had obtained the loan for O'Grady's benefit were threatening him and that his life was in danger and O'Grady's life was in danger while their demands remained unmet. This pressure was conveyed to Ms Gavrilovic who in the end paid the applicant a further sum of $20,000.

11 The $30,000 thus obtained from Gavrilovic was found by her Honour to be only part of the money received by the applicant as a result of his deception. Her Honour found that O'Grady gave the applicant a much greater sum, some of which he raised when he was overseas in Indonesia and India in the course of his employment and some of which O'Grady obtained from a Ms Down, with whom O'Grady had shared a house before he moved in with Ms Gavrilovic.

12 It was Ms Down's property which was the subject of the receiving offence of which the applicant was convicted. It appears that the property had been taken from her house. Apparently the offender gained entry using a key. O'Grady had a key to Ms Down's house, but he denied any implication in a burglary and stealing committed upon her house. Nonetheless, the property was found in the applicant's possession and, as has been seen, he was convicted of receiving it knowing it to have been stolen although, in his defence, he said that he had purchased the items from O'Grady who had told him they were not stolen.

13 I turn to matters personal to the applicant. I have mentioned the reports and references which her Honour had before her when she came to sentence the applicant. Of course, her Honour also had the benefit of observing the applicant during the course of the trial. The applicant's criminal history involved previous convictions for five offences of fraud, two offences of attempted fraud and one offence of stealing as a servant in respect of which the applicant was before the Court of Petty Sessions on one occasion on 21 January 1997. He was fined the sum of $6000 for all those offences. He had no other previous convictions.

14 From the information before the Court it appeared that the current offences were committed, as the applicant admitted, to pay off gambling debts and to fund a gambling habit. At the time of sentencing, the applicant's de facto wife was pregnant. It would be their first child, but the applicant told us that she has since miscarried, to his great distress. But, of course, that is not a matter which can be used either to test the appropriateness of the sentences imposed or to affect in any other way the outcome of the application for leave to appeal.

15 Matters which were before her Honour to which the applicant asserts her Honour paid no or insufficient regard were that imprisonment would be more onerous for him because of the after-effects of neck injuries sustained in a motor vehicle accident in 1990, the sequelae of a stabbing incident in which the applicant suffered multiple wounds in September 2000, as a consequence of which he suffers migraines and depression, and the impact upon the applicant of discovering a woman in a room of an hotel at which he worked. The woman had attempted suicide by overdosing on drugs.

16 Of more significance no doubt in relation to the sentencing process were two psychological reports, both coincidentally dated 1 December 2002, which referred to the complex nature of the applicant's psychological makeup. It was suggested that his treatment would require regular and protracted individual counselling. Not the least of his problems is a long-standing pathological gambling problem which, although it does not excuse the commission of the offences, provides an understandable motivation for their commission. The sentencing Judge said she was encouraged to see that the applicant was prepared to address these problems. It is clear that her Honour thought that, unless the gambling problem in particular was successfully dealt with, the risk that the applicant would offend again would remain high. Nonetheless, as has been seen, eligibility for parole was ordered.

17 It is true that her Honour did not devote a lot of time in her sentencing remarks to discussing the applicant's personal circumstances, but it is equally clear that her Honour focused her attention upon the content of the psychological reports, which were the documents principally of significance in relation to sentence. As to the references, her Honour said that they seemed to indicate that the applicant was really two people; one seen by friends as being kind, conscientious and willing to help others, and the other who would do anything at all to get money to further the gambling. I am not persuaded that her Honour overlooked or afforded too little weight to any matter before her in respect of the applicant's relevant personal circumstances. To my mind, ground 4 was not made out.

18 I have mentioned that grounds 1 and 5 may be taken together. They are concerned with a parity argument comparing the case of the applicant with that of O'Grady. In essence, the submission is that her Honour reacted too favourably to O'Grady's involvement and treated the applicant too severely in the comparison. It is, of course, abundantly clear that her Honour thought the applicant was the person who involved O'Grady. Her Honour dealt with the applicant on the basis that he drove the matter forward by his deception of O'Grady and others to obtain funds for his own benefit.

19 She thought that O'Grady was incredibly naïve. Perhaps that was so, but it seems to me to matter little from the point of view of an evaluation of the sentencing process so far as the applicant was concerned, whether O'Grady was sensible, having regard to their long association, in regarding the applicant as a truthful and honourable person, as indeed it seems he did.

20 Her Honour was clearly aware of the basis upon which a brother Judge of her Honour's Court had dealt with O'Grady. He pleaded guilty to an indictment charging him with the offence of aggravated burglary, which was the same offence as that of which the applicant was convicted, a further offence of burglary, an offence of conspiracy to defraud and an offence of conspiracy to steal. He also pleaded guilty to a number of unrelated offences by way of a notice under the Sentencing Act, s 32. The offences on the notice were one of fraud, an attempt to defraud, a stealing offence and two offences of burglary. In view of the fact that only one offence is common to O'Grady and the applicant, I do not propose to relate their facts although the offences the subject of the indictment against O'Grady were offences he committed relative to the scheme to repay the debt supposedly incurred by the applicant to a loan shark at a usurious rate of interest.

21 When he came to be sentenced O'Grady was 28. He had one prior conviction for the simple possession of cannabis. Prior to the commission of the offences which brought him to the court it was accepted that he was a person of good character who had led a blameless life. When he came to be sentenced he had spent between 7 and 8 months in custody on remand, having voluntarily relinquished his bail. The sentencing Judge accepted that he had destroyed what appeared to be a very promising career. Sentences aggregating a total of 5 years imprisonment were imposed, but having regard to all the circumstances his Honour exercised his discretion to suspend service of that term for a period of 2 years.

22 I note that O'Grady was sentenced to 2 years imprisonment for the burglary offence committed with the applicant, an offence for which, as I have already said, the applicant was sentenced to imprisonment for 1 year, a decision no doubt reflecting the difference in the criminal culpability of the two offenders in respect of the commission of that offence, rather than in respect of the criminal enterprise as a whole.

23 The law in respect of what is described as the parity principle as it applies to the sentencing process is conveniently restated in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. It is unnecessary for present purposes to state the content of the principle at any length. In my view, her Honour is not established to have misconstrued the respective roles and involvement of the applicant and O'Grady, either in respect of the one offence which they committed in common or generally. The cases concerning the two men were different. Their personal circumstances were different. O'Grady pleaded guilty and gave evidence for the Crown at the applicant's trial. His evidence was accepted by the trial Judge. In my opinion there is nothing to establish a marked disparity in the way the applicant was dealt with when his case is compared to that of O'Grady. He can, I think, have no justifiable sense of grievance in that regard. Grounds 1 and 5 were not, in my opinion, made out.

24 Ground 2 complains about the fact that all the sentences imposed on the applicant were not ordered to be served concurrently. The principles governing the way in which that decision is made were recently discussed by this Court in R v White [2002] WASCA 112 in the judgment of McKechnie J, with which Wallwork J and I agreed. The rules are not hard and fast, but speaking generally, where it is possible having regard to totality considerations, custodial sentences for offences which may properly be regarded as part of the one transaction or criminal enterprise may be permitted to be served concurrently whereas sentences for offences which are committed against separate legally recognised interests are usually the subject of an order for their accumulation.

25 In this case the offences committed were quite separate attacks upon, or infringements of the proprietary interests of, the victims. That is so, in my opinion, in relation to the two separate fraud offences committed against Ms Gavrilovic. None of the terms of imprisonment are suggested to be individually too long and all might have been imposed cumulatively. The fact that the sentence for the receiving offence was permitted to be served concurrently is, I think, only a reflection of the operation of the totality principle. I can discern no error of principle in that regard and I turn then to ground 3 which raises the application of the totality principle in this case.

26 That principle is discussed in Postiglione and the decision of this Court in Jarvis v The Queen (1993) 20 WAR 201 may be mentioned. Very recently this Court gave judgment in Herbert v The Queen [2003] WASCA 61, 26 March 2003. In that case at [10] - [74] Malcolm CJ considered at length the content of the totality principle and comprehensively reviewed all the significant authorities decided by this Court.

27 For present purposes it seems to me that no more need be said than that the application of the totality principle involves a court, when passing sentence for a number of offences or passing a sentence in the context of the fact that the offender is already serving another term of imprisonment, in considering the total effect of what has been done before finally parting with the case. Although the individual terms imposed will have been determined to be duly proportionate, in the judgment of the court, to the criminality involved in the particular offences, the question is whether the aggregate term imposed, in its total effect, is properly proportionate to the total criminality of the offending, having regard to the fact that the severity of a sentence increases exponentially with its duration. If the final judgment of the court is that the total term is too long to properly serve the principles of sentencing then the Judge will be required to reduce its length. In a case where a number of sentences have been imposed it will be preferable to do that by sacrificing an otherwise appropriate accumulation of terms in preference to reducing the length of individual terms.

28 The question for this Court then is whether, measured against the application of that principle, it can be seen that the exercise of discretion by the sentencing Judge has miscarried. In my view that is not established. The commission of these offences represents a course of criminal conduct on the part of the applicant. They are serious offences in the way that they were committed. The applicant was the moving force in their commission. They required punitive sentences, in their total effect, for deterrent purposes. To suspend their service could not be justified and

to my mind her Honour was not required to reduce the aggregate term imposed.

29 In my opinion the application for leave to appeal should be dismissed.

30 WHEELER J: I have had the advantage of reading in draft the reasons to be published by Murray J. I agree with those reasons and have nothing further to add.

31 MCLURE J: I have had the advantage of reading in draft the reasons for decision published by Murray J. I agree with them and have nothing to add.