Herbert v The Queen [2003] WASCA 61

Herbert v The Queen [2003] WASCA 61 - WASCA 2003 case summary — Zoe

[50]

"Where the series of offences are so closely connected in nature, time and circumstance as to be properly regarded as one transaction or one spree or one continuing criminal operation, the totality principle may, and perhaps should, be given effect to by allowing the sentences to run concurrently: Brown v Lynch (1982) 5 A Crim R 404 at 407. It is less imperative to do that where the crimes are unconnected and quite separate in point of time. A fortiori where they are also different in nature, such as, for example, a rape and a robbery committed many months apart. However, even in such cases, mitigating devices are employed. See, for example, Vaitos v R (1981) 4 A Crim R 238. Usually, but not always, this will be by reducing the later or second sentence or sentences rather than by allowing the second lot to be concurrent or partially concurrent with the first lot. The practical effect will often be the same but it does seem more in accord with general sentencing jurisprudence to order accumulation and lower the cumulative sentences, rather than to allow concurrency, especially where there is a wide separation in time and circumstances between the offences. In my opinion there is ample justification and precedent for this approach. The justification is not necessarily to be found, however, merely by reference to the so-called totality principle or to that limb of it represented by the caveat against imposing 'crushing' sentences. A sentence may, of course, offend the totality principle without being 'crushing'. In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished (which is to apply the totality principle) the aggregate may be seen to be inappropriately long even although it is not so long as to bring about 'the destruction of any reasonable expectation of useful life after release' (the definition of 'crushing' given in Yates v R [1985] VicRp 3; [1985] VR 41 at 48) or so long that all desire for rehabilitation is likely to be extinguished."

[69]

"And so it is in my opinion, that where there is a multiplicity of offences and sentences to be passed, the totality of the sentence must be proportionate to the totality of the criminal behaviour involved, whether or not there was any link between the commission of individual offences beyond the identity of the offender and the fact that he must at the one time serve the sentences. In that regard, I would with respect expressly concur in the view of Ipp J that the explanation for the fact that to apply the totality principle in such circumstances will generally effect a reduction in the total term, is to be found in the fact that 'the severity of a term of imprisonment increases exponentially as it increases in length.'

In my view, that has long been recognised and underlies the reasoning expressed in cases such as Magee v R [1980] WAR 117, 119 where Wickham J, with whom Burt CJ and Wallace J agreed, spoke of the need to ensure that the total term was no longer than necessary to meet the various purposes of criminal punishment and to avoid the possibility that too long a term might be harmful 'in that the prisoner might become hopeless, aggressive or otherwise intractable, and thus one of the purposes of punishment will be defeated through making it more rather than less likely that he will eventually offend again.' As his Honour put it, whilst persuasive authority warned a sentencing Judge against being 'weakly merciful', it was just as easy to make the mistake of being 'weakly severe'.

Magee was referred to by this Court in Mickelberg v R (1984) 13 A Crim R 365 where the court considered whether or not a reduction was required in a very long aggregate term simply as an exercise of mercy. It is that basis for the application of the totality principle as a reflection of the search for appropriate proportionality of sentence which in my opinion explains its application in relation to the imposition of fines: Sgroi v R (1989) 40 A Crim R 197, 203.

It was Wickham J in Thomson v R, unreported; CCA SCt of WA; 19 March 1973 who first expressed the totality principle in the phrase 'enough is enough' which seems to me to succinctly express the final result to be achieved in terms of proportionality of the aggregate penalty to the total criminality to which it is to be applied. In my opinion there is no other or additional content to the principle, and when, as it is sometimes put, it is expressed in terms that what is to be avoided is the achievement of 'a crushing result', that is simply to refer broadly to one test by which it may be considered whether the aim of proportionality has been achieved or whether undue severity has been employed. What is to be considered is the impact of the total term having regard to the various ways in which it may be thought to have become unduly punitive and positively harmful to the achievement of the proper aims of the imposition of sentence."

[194]

121 Turning now to the indictment, the charge on which he stood his trial was a charge of armed robbery in company. At about 8.00 am on Monday, 14 May 2001 the applicant and his brother Jason went to the Caltex Starmart at Ranford to rob it. The applicant's brother was armed with a rifle. The applicant remained outside on watch while his brother went into the Starmart to confront the proprietor. The applicant and his brother would have known that the retail premises had been open for trading the previous day and that it was more than likely that that day's takings (it having been a non-banking day) would still be on the premises. This turned out to be so. The proprietor was in fact engaged in counting the previous day's takings amounting to some $7,500 and this money was on the desk in his office. He had left the office to speak to mechanics in the workshop and as he returned to the office he was met by the applicant's brother who pointed the rifle at him and told him to go into his office. The proprietor obeyed and the applicant's brother, whilst threatening the proprietor with the rifle, picked up all the money on the desk and put it in a jacket pocket. He then demanded more money and was told that there was no more money. He then picked up a coin bag with $50 worth of $2 coins in it which was also on the desk. He then demanded that the proprietor hand over his wallet and open his briefcase. There was no wallet and he took nothing from the briefcase. He then demanded that the proprietor give him "whatever is in your top pocket" and the keys to the proprietor's car. The proprietor handed over some business cards from his top pocket but told the applicant's brother that his car was not at the premises. The applicant's brother then demanded the keys to the console or cash register and demanded that the proprietor call in the console operator. The proprietor did so but the console operator did not respond. The applicant's brother then ordered the proprietor to leave his office and walk towards the console area, all the while pointing the rifle at the proprietor. Under direction from the applicant's brother and with the rifle pointing at him the proprietor told the console operator to take money from the till. The applicant's brother then ordered both the proprietor and the console operator back into the office and, with all of the money, made his escape with the assistance of the applicant. None of the money was recovered.

[257]

171 In my view the sentences of 5 years' imprisonment imposed in each of the four cases of burglary of a place of habitation were well within the range of sentences that could have been imposed. In the light of what was said by Malcolm CJ in R v Ward about the need to firm up sentences for the offence of burglary committed on people's homes, it is difficult to see how a sentence of 5 years' imprisonment, representing only a little under 30 per cent of the maximum penalty that could have been imposed, can be said to be manifestly excessive. In my view the sentences of 5 years' imprisonment were well within the range that could have been imposed for each of the offences of burglary and each properly demanded a sentence of that length. The value of the property taken in each instance may have varied, but this was purely fortuitous, as the appellant was clearly determined to steal whatever was there for the taking. I need only add that the theft of jewellery in two of the cases was particularly serious, as the loss to women householders of their jewellery is often one of the hardest things for them to bear in burglaries. Invariably (as here), the jewellery is never recovered and includes items of irreplaceable value. Although it is true that these were offences that could have been dealt with summarily, in which event the maximum term of imprisonment that could have been imposed was 3 years, this is irrelevant where a superior court is sentencing for the offence in question: Rafferty v The Queen [2002] WASCA 312. Indeed, this case effectively disposes of the particular of the second ground of appeal which contends that the learned trial Judge erred in imposing sentences available on indictment when the offences were the subject of a s 32 notice. Murray J (at [15] with whom Anderson J and Burchett AUJ agreed) dealt with the matter by pointing out that s 33(2) of the Sentencing Act gives to this Court a sentencing power equated with the jurisdiction of the Court in respect of a charge of an offence otherwise before the Court on indictment. If an offender chooses to have matters dealt with in this way, that is the result at law.

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Judgment (265 paragraphs)

Herbert v The Queen [2003] WASCA 61 (26 March 2003)

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Cases Cited (26)