Criminal law - Application for leave to appeal against sentence - Offences committed while applicant subject to intensive supervision orders and sentences of suspended imprisonment - Re­sentenced for prior offences - Whether total sentence manifestly excessive and crushing in light of attempts to rehabilitate - Totality principle - Where previous leniency - Turns on own facts

Kaye v The Queen [2004] WASCA 227

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

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

R v Holder [1983] 3 NSWLR 245

Casbolt v The State of Western Australia [2005] WASCA 41

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

Jarvis v The Queen (1993) 20 WAR 201

Magee v The Queen [1980] WAR 117

Michael v The Queen [2004] WASCA 4

O'Bryan v The State of Western Australia [2005] WASCA 43

1 STEYTLER P: This is an application for leave to appeal against sentence. The application concerns sentences imposed upon the applicant in respect of 11 different offences committed by him between October 1999 and September 2003.

2 On 9 October 2001 the applicant pleaded guilty to five of those offences. These were charged under indictment 852 of 2000. The first of these was a charge of robbery committed on 24 October 1999. On that day the applicant snatched $1750 from a till at a hardware shop in O'Connor, pushing the till drawer into the stomach of a shop assistant in the process. The second and third charges related to the theft, by the applicant, of a motor vehicle on each of 24 October 1999 and 26 October 1999. The last two offences charged under indictment 852 of 2000 were stealing offences. The first of the stealing offences, committed on 23 October 1999, involved the snatching of $2530 from a till at a Dewsons store in Myaree. The second, committed on 26 October 1999, involved the stealing of $2400 from a till belonging to an Action supermarket in Spearwood.

3 On 30 November 2001 the applicant pleaded guilty to a further two offences, charged under indictment 698 of 2000. Those charges related to a burglary committed by the applicant at a Red Dot store in Spearwood in early November 1999, in the course of which the applicant caused $1000 damage to a safe and took $3700 in cash from it, and to a conspiracy, in early December 1999, to burgle the same store a second time. The conspiracy took place while the applicant was in Hakea prison.

4 The applicant was sentenced in respect of all seven of these offences on 12 February 2002. He was then 25 years old, but already had a long list of previous convictions. Most of the offences on his prior record had been committed while he was a juvenile, although he had, by then, committed a significant number of offences as an adult. These included offences of burglary, receiving stolen property and car theft. The sentencing Judge, Kennedy CJDC, described his record of previous convictions as "terrible". She also noted that the applicant had, by then, spent a great deal of time in custody. He had a continuing problem with amphetamines and she said that this had been the cause of his offending. She also mentioned that the applicant had been very badly injured while in prison in May 1999 and that, after this, he had begun to take steps to turn his life around. She said that a number of matters had caused her to contemplate an alternative to imprisonment. The applicant had reconciled with his family, who were responsible and law-abiding people. He had a secure job. He had attended extra training courses. He was no longer taking drugs. He had ongoing psychological treatment and a positive report had been received in respect of him. Kennedy CJDC consequently imposed non-custodial sentences.

5 In respect of the burglary charged under indictment 698 of 2000, she imposed an intensive supervision order on the applicant for a period of two years, involving 240 hours of community service. In respect of the conspiracy to commit burglary charged under that indictment, she imposed a term of 2 years' imprisonment, suspended for 18 months. As to the charges brought under indictment 852 of 2000, she imposed intensive supervision orders, in the same terms as that earlier mentioned, in respect of each of the counts of car theft and stealing and a term of 2 years' imprisonment, cumulative, but suspended for 18 months, in respect of the robbery. After imposing the terms of suspended imprisonment, she told the applicant that, if he should "sneeze the wrong way", he would be required to serve those terms.

6 On 26 February 2002 the applicant pleaded guilty to, and was sentenced in respect of, a further charge of aggravated burglary, charged under indictment 493 of 2001. He and others had gone to a SupaValue store in Woodlands on 15 September 2000, smashed the window of the store, entered it and stolen some cigarettes. The applicant was sentenced (again by Kennedy CJDC) to a term of 2 years' imprisonment, suspended for 18 months, to be served concurrently with the sentences imposed on 12 February 2002. Kennedy CJDC repeated what she had said earlier, when sentencing the applicant on 12 February 2002.

7 On 7 December 2004 the applicant pleaded guilty to two counts of aggravated burglary and one of receiving stolen property. All three counts were charged under indictment 997 of 2004. On 12 April 2003, the applicant and a co-offender had gone to a set of business premises in Hilton, taking with them a sledgehammer and a screwdriver. They mounted the roof of the premises, causing it to collapse. They then broke into a shop and stole $200 from a till. The collapse of the roof caused $3200 worth of damage. This was the first count of aggravated burglary. The second count of aggravated burglary arose out of the fact that the two men then used the sledgehammer to smash a hole in the wall of the shop to gain entry into the shop next door. There they tried to smash open a safe with the sledgehammer, but fled when an alarm was activated. The offence of receiving stolen property was committed between 26 September 2003 and 1 October 2003. Two associates of the applicant had stolen a safe. The applicant and his de facto wife went to the home of one of them. They had with them a large angle grinder. They assisted in opening the safe, using the angle grinder. The contents of the safe included $11,903 in cash, $4692 in "scratch and win" lottery tickets, $7587 in multi-rider transport tickets and $3984 in telephone cards. The applicant received, for his efforts, a sum of money and some of the lottery tickets.

8 The Judge who sentenced the applicant in respect of the offences charged under indictment 997 of 2004, Mazza DCJ, said that the two aggravated burglaries charged were made more serious by the fact that the applicant was then still subject to the intensive supervision orders and suspended imprisonment which had earlier been imposed by Kennedy CJDC. The applicant's explanation for his commission of these burglaries was that he had run out of work and did not have enough money to pay for his living expenses. He said that he did not have sufficient life experience to resort to a legitimate way of relieving his financial pressures. The receiving offence was said to have been motivated by misguided loyalty.

9 The sentencing Judge also mentioned that the applicant was then 27 years old, in a de facto relationship and the father of a small child. He was still employed. His employment record, since August 2001, had been favourable and Mazza DCJ was prepared to accept that the applicant was "by and large drug-free" and that illicit drugs no longer posed a problem for him. Mazza DCJ also took into account the fact that, until he re-offended, the applicant had done "pretty well everything" that had been required of him in terms of reporting pursuant to the intensive supervision orders which had been made. He also took into account the fact that the assault which had been perpetrated on the applicant while he was in jail in 1999 had left him with lasting physical effects and with post-traumatic stress syndrome.

10 However, after taking all of these matters into account, as well as the fact of the applicant's early pleas of guilty, the sentencing Judge said, in effect, that the offences were so serious, and the need for general deterrence so great, that sentences of immediate imprisonment were required. Allowing for the operation of the totality principle, he imposed a total term of 4 years and 8 months' imprisonment. In respect of indictment 997 of 2004, he imposed terms of 2 years' imprisonment on each of the aggravated burglary charges, to be served concurrently with each other, and a term of 12 months' imprisonment to be served cumulatively, in respect of the receiving charge. He then turned to the matters in respect of which the applicant required to be re-sentenced. He imposed, in respect of the aggravated burglary charged under indictment 493 of 2001, a term of 8 months' imprisonment to be served cumulatively. In respect of the burglary charged under indictment 698 of 2000, he imposed a sentence of 12 months' imprisonment to be served cumulatively. In respect of each of the other offences in respect of which there had been either an intensive supervision order or a suspended sentence, he imposed a term of 8 months' imprisonment to be served concurrently with the other terms imposed. The applicant was declared to be eligible for parole.

11 By his grounds of appeal, the applicant contends that the sentence imposed upon him was manifestly excessive and "crushing". He submits that it is outside the range of a proper exercise of the Court's sentencing discretion. In supporting these grounds, counsel for the applicant relied primarily upon two matters.

12 The first of these is that, until he committed offences in 2003, the applicant had made significant progress in his attempts to rehabilitate himself. These attempts had commenced before he was sentenced by Kennedy CJDC in February 2002. I have said that his efforts in this regard had encouraged her to give to the applicant what was effectively a last chance by deciding not to impose an immediate custodial sentence, notwithstanding the seriousness of the offences committed by him and his prior criminal record. I have earlier mentioned that Mazza DCJ similarly acknowledged the progress which the applicant had made at rehabilitating himself. Mr Raymond Flynn, a senior community corrections officer who gave evidence in the course of the sentencing proceedings before Mazza DCJ, had informed the Court that there had been a number of positive indicators that "things seem to be going reasonably well in ... [the applicant's] life", including the fact that urine tests during 2003 had been "clean for everything". Counsel for the applicant submitted that this background, taken together with the fact that the applicant did not re-offend for some 14 or so months after the imposition of the suspended sentences, strongly militated in favour of a lenient outcome.

13 The second matter relied upon by counsel for the applicant is the application of the totality principle. This requires a 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: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 309 per McHugh J. The practical effect of this principle, in a case in which it has operation, is ordinarily that the aggregate sentence that is ultimately arrived at will be less than that which would have been arrived at if terms that are appropriate to each offence

looked at on its own had been imposed and then added together: R v Holder [1983] 3 NSWLR 245 at 260 per Street CJ. Counsel for the applicant submitted that the imposition of three cumulative sentences, in the way in which that was done by Mazza DCJ, resulted in an aggregate that was disproportionate and excessively long, even taking into account the whole of the appellant's criminal behaviour and recognised sentencing objectives. He submitted that this is especially so when regard is had to the significant progress that the appellant has made in rehabilitating himself. He suggested, in effect, that the total sentence of 4 years and 8 months' imprisonment will "crush" the appellant and put an end to his attempts to turn his life around, whereas a more lenient penalty will encourage further attempts at rehabilitation, especially in circumstances in which the applicant has shown himself able to hold down employment, has formed a stable relationship, has a young child and is drug-free.

14 Each of the matters now raised by counsel for the applicant was taken into account by Mazza DCJ, whose exercise of discretion must be respected: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672. In my opinion it was undoubtedly open to him to form the opinion that the seriousness of the offences was such, notwithstanding these matters, as to justify nothing less than a sentence of immediate imprisonment and to impose the sentences, and the total term of imprisonment, ultimately arrived at by him. He made no error of fact or law in the course of his reasons and nor may it be inferred, in all of the circumstances, that the overall result is unreasonable or unjust: Kaye v The Queen [2004] WASCA 227 at [61] per McLure J. The offences were serious and the applicant was fortunate not to have been made the subject of a lengthy custodial term of imprisonment when he was sentenced in February 2002. While he did stay out of trouble for over a year after that time, the fact that he re-offended in April 2003, and the seriousness of the re-offending at that time (even putting to one side the receiving charge) meant that the sentencing Judge had little option other than to impose a significant period of imprisonment in respect, not only of those offences, but also the others in respect of which the applicant was to be re-sentenced. The applicant's overall criminality was more than sufficient to justify the total sentence imposed, even allowing for the operation of the totality principle and the applicant's attempts to rehabilitate himself.

15 I would refuse the application for leave to appeal.