Crimes Act 1914 (Cth), Pt 1B, s 16A

Criminal Law (Sentencing) Act 1988 (SA), s 18A, s 10

Firearms Act 1973 (WA)

Sentencing Act 1995 (WA), s 32, s 33, s 143(1), s 143(3)

Weapons Act 1999 (WA)

Cameron v The Queen [2002] WASCA 81

Comstive v Van Lierop and Babich [1999] WASCA 288

Hayes v The Queen [2002] WASCA 56

Haylock v The Queen [2000] WASCA 287

McKenna v The Queen (1992) 7 WAR 455

Murphy v The Queen, unreported; CCA SCt of WA; Library No 990126, 9 February 1999

1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 21 June 2002 the applicant was sentenced in the Supreme Court by White AUJ to a total term of imprisonment of 15 years in respect of a total of 33 offences committed between 15 September 2000 and 31 May 2001. Had the sentences been made cumulative on one another, they would have aggregated a total of 58 years and 1 month. In addition, the applicant was fined a total of $1700 for a number of other offences. Some of the sentences of imprisonment were made concurrent on account of the totality principle and the number of cumulative sentences was limited to bring about the aggregate of 15 years. The details of the sentences imposed and the offences which gave rise to them are set out in the reasons for judgment of Anderson and Miller JJ, which I have had the advantage of reading in draft.

2 As Anderson J has pointed out, the primary contention made on behalf of the applicant was that the sentences imposed for the various burglary offences were excessive. In this context, it is of considerable significance that in 1996 Parliament increased the maximum sentence for burglary from 14 years to 18 years' imprisonment. This was a consequence of the increasing prevalence of the offence. In this context, I agree with the comments made by Anderson J, including, in particular, what his Honour said in Heferen v The Queen [1999] WASCA 81 at [35] regarding the duty of the courts to give effect to the legislative policy behind the amendments to the Criminal Code.

3 So far as the relevant offences are concerned, I also agree with Anderson J that the two offences of threat to injure, in respect of which a sentence of imprisonment for 2 years was imposed on each of the two counts, fully justified such sentences. In my opinion, these offences were both very serious and close to the top end of the range. I am quite unable to accept that they were excessive, let alone manifestly excessive. I agree with Anderson J that a sentence approaching the maximum was warranted, subject to taking account of any circumstances of mitigation, including the pleas of guilty.

4 I also agree with Anderson J that the submission that, taking into account the "totality principle", an aggregate sentence of 7 years for the various offences, the subject of the notice under s 32 of the Sentencing Act 1995 (WA) ("Sentencing Act") was not manifestly excessive. Section 32 enables a superior court, namely, the Supreme Court or the District Court, to sentence an offender, both in respect of indictable offences and in respect of summary offences brought before it. By s 33(3) of the Sentencing Act, a sentence imposed under ss 32 and 33 is to be regarded as a sentence imposed following conviction on indictment.

5 The primary contention advanced on behalf of the applicant was that the sentences imposed for the offences of burglary were manifestly excessive. According to the Crime and Justice Statistics of Western Australia: 2001 published by the Crime Research Centre of the University of Western Australia in November 2002 ISSN 1037 -6941, the rate of unlawful entry of premises in Western Australia was the highest in Australia in the calendar year ended 31 December 2001 at 3250.9 per 100,000 of the population, compared with New South Wales 2480.6, Victoria 1678.4, Queensland 2031.9, South Australia 2332.8, Tasmania 1967.6, Northern Territory 3243.6 and the ACT 1885.9. The rate for Australia as a whole was 2246.9 per 100,000. I agree with Anderson J that it would appear that to date there has not been any significant degree of firming up of sentences for burglary. However, in light of the increased penalties provided by Parliament, it is necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for the offence by reason both of its prevalence and the increased level of community concern as a result.

6 In this context, while it may be acknowledged that the offences of burglary in this case were not in the worst category in terms of the amount and value of the property stolen, they were serious examples of the kind which have become prevalent in recent years. They involved forced entry, a search of premises, constituting a gross invasion of the space and privacy of the occupants, leaving them with a great sense of insecurity and characterised by the removal of everything of value that could be carried away without too much difficulty.

7 In my opinion, having regard to the maximum now available, the sentences of 5 years imposed by the learned Judge in this case were, by no means, manifestly excessive. As Anderson J said in Heferen v The Queen (supra) at 13, after referring to the increase in the maximum sentence:

"It is of course the duty of the courts to give effect to the policy behind this change."

8 It was submitted on behalf of the applicant that the sentences of 2 years on each of the two counts of threat to injure, after allowing a discount of 25 per cent for the pleas of guilty to all of the offences the subject of the notice under s 32 of the Sentencing Act, were manifestly excessive. It was said that the end result indicated a starting point of 32 months, which was much too close to the maximum of 3 years for each such offence, having regard to the circumstances. As Anderson J has demonstrated, these offences were very serious examples of such threats. In my opinion, sentences approaching the maximum were appropriate, having regard to the circumstances. The first threat involved the use of a knife to inflict terror. The second involved entry onto the premises of the occupiers, in company, and an unambiguous threat of serious personal harm if the matter was reported.

9 Finally, it was submitted that an aggregate sentence of imprisonment for 7 years in respect of all of the offences comprised in the s 32 notice was manifestly excessive. I agree with Anderson J that there was in fact no separate sentencing exercise to be undertaken with respect to the offences the subject of the notice. The learned Judge was involved in sentencing the applicants in respect of all of the offences of which they had been convicted. It was quite proper for the learned Judge to proceed to deal with the offences the subject of the s 32 notices separately, but in conjunction with the sentences for the burglary offences. The issue raised by the appeal is whether the total of the sentences imposed of 15 years' imprisonment was excessive, having regard to the totality principle in the context of the whole of the course of criminal conduct involved, in the context of all other relevant circumstances.

The Totality Principle and Jarvis v The Queen

10 In this context, reliance was placed upon the totality principle and, in particular, a passage in the judgment of Ipp J in Jarvis v The Queen (1998) 20 WAR 201 at 207 where his Honour said:

"While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos [Vaitos (1981) 4 A Crim R 238] at [301] by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista and Laporte, unreported; CCA SCt of WA; Library No 920051; 30 January 1992) v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312.

What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."

11 In the present case, it was submitted on behalf of the applicant that the total sentence of 15 years imposed in this case was too long and, therefore, offended the totality principle. Counsel specifically relied upon the rationale of the totality principle stated by Ipp J in the passage which I have mentioned, namely, that "the severity of a term of imprisonment increases exponentially as it increases in length", as the reason why courts are required to exercise restraint with respect to lengthy sentences.

12 The precise meaning of the expression "the severity of a term of imprisonment increases exponentially as it increases in length" does not appear to have been previously explained in any detail. According to the Shorter Oxford Dictionary, the term "exponential" is related to mathematics, being something which involves "the unknown quantity or valuation of an exponent, i.e. a symbol denoting the power of an index" such as: 62 or 6 to the power of 2. This is known as an exponential quality or function. A similar meaning is given in the Oxford Illustrated Dictionary as involving the "unknown quantity or valuation of an exponent, i.e. a symbol denoting the power of an index." A similar mathematical meaning is given in the Macquarie Dictionary. The colloquial meaning is also given, namely, something that is "marked by a rapid increase in magnitude, number, etcetera". In my opinion, the term was not used by Ipp J in any technical or mathematical sense, but to suggest that the increase in length of a sentence is perceived as increasingly greater severity than the actual length of the sentence. Thus, for example, the doubling of a sentence may be perceived as being more than twice as severe, in the sense that the severity is compounding by a factor more than simply the additional length of the sentence. As Ipp J himself said in Jarvis at 207, immediately following the proposition in question:

"Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."

13 This passage was preceded by two quite important passages in Jarvis at 204 and 205. First, Ipp J noted at 204 that it was accepted on behalf of Jarvis that both the sentence of 8 years and the sentence of 7 years imposed in that case, when looked at in isolation, fell within an acceptable range. Secondly, at 205 his Honour noted that in Mill v The Queen (1988) 166 CLR 59 at 62 - 63 the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) upheld the description of the totality principle in Thomas, Principles of Sentencing (2nd ed 1979) at 56 as follows:

"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'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

14 In R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262 at 263, the Court of Appeal of New Zealand held that cumulative sentences should not result in an aggregate term wholly out of proportion with the gravity of the offences when viewed as a whole. This implies that the severity of a combination of individually appropriate sentences for a series of offences to be served concurrently is greater than the total length and may be excessive because the severity increases at a greater rate than the sum of the individual sentences.

15 In R v Stickland [1989] 3 NZLR 47 at 50, the Court of Appeal of New Zealand adopted and applied the approach of the High Court in Mill (supra), including the requirement that a Court having imposed a series of appropriate sentences for each offence, separately considered, whether a series of cumulative sentences or a combination of concurrent and cumulative sentences, must review the overall sentence to ensure that the total is not excessively harsh or grossly disproportionate to the general level of gravity of the individual offences.

16 In Thomas, Current Sentencing Practices, August 2001 at par A5-3AOI, reference is made to R v Barton, unreported; Court of Criminal Appeal (Eng); 6 October 1972 in which Lawton LJ said:

"If one does the arithmetic the totality of all the sentences which could reasonably have been passed upon him far exceeds four years. But the Court is minded that when these cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

17 See also: R v Reeves [2000] EWHC 567; (1980) 2 Cr App R(S) 35; R v Hamilton (1980) 2 Cr App R(S) 229; R v Millen (1980) 2 Cr App R(S) 357; R v Stevens (1997) 2 Cr App R(S) 180; R v Brown [2008] EWCA Crim 1480; [1999] 1 Cr App R(S) 47, and McL v The Queen [2000] HCA 46; (2000) 74 ALJR 1319 at [14] - [21] per Gleeson CJ, Gaudron and Callinan JJ

18 In Evangelista v The Queen, unreported, CCA SCt of WA; Library No 920051; 30 January 1992 Murray J (with whom Owen J agreed) said:

" ... where there is a multiplicity of offences for which sentence must be passed the application of that basic principle with respect to individual offences must give way to what used to be called the limitation that 'enough is enough' and has come to be called the 'totality principle'. And it is quite clear that where there is a multiplicity of offences for which sentence is to be passed it may not be possible without achieving a crushing result to apply proportionate sentences with respect to each individual offence. What then must be considered is the overall effect in aggregate to see whether the result finally to be achieved is proportionate to the series of crimes which have been committed: Mill v R (1988) 166 CLR 59 at 62-63."

19 Ipp J went on to say in Jarvis (supra) at 205 - 207 that:

"It has often been said that where the overall sentence for two or more crimes is 'crushing', that overall sentence should be reduced, even though each of the terms when separately viewed is within an appropriate range. When is a sentence to be regarded as 'crushing', and when is 'enough' to be regarded as 'enough'? It is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release: see Fox and Freiberg, Sentencing, State and Federal Law in Victoria (1985).

According to Thomas op cit [at 57-88] a cumulative sentence may offend the totality principle 'if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects.' The learned author observes at 58 that this represents 'an extension of the practice of mitigation'. At 59 he says that this part of the totality principle 'appears to require a sentencer who imposes a series of consecutive sentences to consider the mitigating factors in relation to the totality of the sentence, even though they have already been considered in relation to the individual component parts.'

Seen in this light, the 'crushing' effect of a cumulative or aggregate sentence is no more a mitigatory factor than the crushing effect of a severe sentence imposed for a single offence. It is always the duty of the sentencing court to be justly merciful and the potentially crushing effect of a sentence should always be taken into account as one of the factors relevant in the sentencing process."

20 Ipp J referred to Vaitos v The Queen (supra) as an example of the application of the principle. In that case, Vaitos had been convicted of several serious offences and a number of the sentences were made concurrent. Nevertheless, the total sentence was imprisonment for 26 years. Vaitos subsequently pleaded guilty to numerous further counts, mainly of burglary. The aggregate of the individual sentences imposed on these further counts was imprisonment for 63 years. Only 2 years of the 63 were ordered to be served cumulatively upon the earlier sentences. The result was a total effective sentence of 28 years with a minimum non-parole of 26 years. The applicant was 33 years of age. The Court of Criminal Appeal in Victoria did not consider the sentences to be either unfair or "crushing": see per Young CJ at 242, Murphy J at 276 and O'Bryan J at 301.

21 In Jarvis (supra) Murray J was also of the opinion that the application should be dismissed. His Honour referred at 211 to the approval by the High Court in Mill v The Queen (supra) of the statement of the totality principle in Thomas, op cit, and added:

"The statement of the principle in that text was not one attended with any great sophistication. It was simply put that where a number of sentences are to be passed and ought to be imposed consecutively, it is not sufficient to simply conclude that each sentence individually is properly proportionate to the gravity of the offence. The court must look, so it is said, at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. That is a statement which refers to the application of the principle when a number of sentences are to be passed on one occasion and so the High Court said at 63:

'Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.'

In this case, as we have already seen, each sentencing Judge sacrificed the cumulative imposition of sentences for individual and separate offences to the need to achieve an appropriately proportionate result in the total. And so it was the case that appropriate individual sentences were imposed but ordered to be served concurrently when, according to the accepted principles, being quite separate offences, they would have been ordered to be served cumulatively."

22 Murray J went on to say that the principle is also to be applied when a court is, or two courts are, required to sentence for a number of offences on different occasions. In each case it is necessary to ask what is the appropriate sentence for the totality of the criminal behaviour?

23 While in dissent in Jarvis, similar views were expressed by Anderson J in his reasons from 215 - 218. His Honour said at 215:

"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."

24 The decision of this Court in Bowman (1993) 69 A Crim R 530, 18 June 1993, was published just five days after the decision in Jarvis (supra). Bowman was convicted on his pleas of guilty to three counts of cultivation of cannabis with intent to sell or supply it to another, two counts of selling a quantity of cannabis to another and one count of possession of cannabis with intent to sell or supply it to another. The crops of cannabis were separate. Bowman was declared a drug trafficker. He was sentenced to imprisonment for 1 year on the first count of cultivation and 2 years on the second count of cultivation, to be served concurrently with a further sentence of 2 years in respect of a count of selling a quantity of cannabis from that crop. These two terms were cumulative upon the sentence for the cultivation of the first crop. He was also sentenced to 4 years on the third count of cultivation. Further sentences of imprisonment for 4 years were imposed in respect of one count of selling a quantity of cannabis from the third crop and a further count of possession of cannabis with intent to sell or supply it. The three sentences of 4 years were directed to be served concurrently with each other, but cumulatively upon the previous sentences so that the total term of imprisonment was 7 years. Bowman was made eligible for parole in respect of each sentence. In this way, the total potential sentence of 19 years was reduced to 7 years.

25 On appeal, it was held by Malcolm CJ (with whom Kennedy J agreed) that the totality principle was not infringed by a total sentence exceeding the sentence imposed for the most serious of the offences in the series. In reaching that conclusion, however, neither Malcolm CJ nor Kennedy J embarked upon any detailed analysis of the totality principle.

26 One of the contentions in the case was that the aggregate sentence was inconsistent with the first limb of the totality principle stated by Thomas, Principles of Sentencing (2nd ed) at 56 - 57 as follows:

"A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal term of sentences for the most serious of the individual offences involved."

27 This argument was rejected by Ipp J who said in Bowman (supra) at 541:

"... the so-called limb of the totality principle does not reflect any of the purposes of punishment. It is an arbitrary rule that has no bearing upon the principle of proportionality. Further it does not reflect the sentencing practice adopted in this state. In my view it does not represent the law in this state."

28 In Sentencing for Multiple Offences in Western Australia, Research Report No 6 of the University of Western Australia Crime Research Centre by Marianne Wells, the learned author commented at 37 that:

"The essence of the first limb is to maintain some recognisable relationship between the total sentence and the most serious offence involved. This limb is formulated somewhat differently to the concept of relative proportionality, in that it requires a comparison between the total sentence and the usual range of sentences for the most serious offence involved, rather than a comparison between different classes of offence. However, the first limb is, perhaps, an attempt to give practical meaning to the concept of relative proportionality. By tying the total sentence to the normal range for one class of offence, there is an implicit recognition that a number of offences of one class of offence may not be as serious as a single instance of a more serious class of offence.

The difficulty, however, lies in selecting the most serious offence as the limitation on the total sentence. If the normal range of sentences is based on single instances of that offence, it is difficult to see why a total sentence for a number of offences would be disproportionate merely because it exceeds the normal range. In addition, if the offences are different in type the most serious offence may not be representative of the conduct."

29 The author went on to discuss the second limb of the totality principle described by Thomas (op cit) at 56 that a cumulative sentence or cumulative sentences may have the effect of imposing "a crushing sentence" not in keeping with the offender's record and prospects. It is in this context that courts will consider whether the aggregate of all the sentences "... is a just and appropriate measure of the total criminality involved": Postiglione (supra) per McHugh J at 307 - 308; Gummow J at 321; and Kirby J at 340; see also Fox and Frieberg, Sentencing (2nd Ed) at 725 - 726. As the learned authors say at 725:

"The result will be an effective sentence that is less than the sum of its parts because some components will have been made concurrent or partially concurrent."

30 The components include not only the sentences then being imposed, but also any sentences which the offender is currently serving: Postiglione (supra) at 308 per McHugh J who expressed the basis for this in terms of "the merciful intervention of the court": Gordon (1994) 71 A Crim R 459 at 466 per Hunt CJ. In other words, although logic may require that unconnected offences may require cumulative sentences, mercy requires a reduction to prevent the overall sentence being crushing or out of proportion to the total criminality involved. The just result is achieved by making sentences which would otherwise be cumulative, concurrent or partially concurrent: see Fox and Frieberg (op cit) at 726 and cf: Mickelberg (1984) 13 A Crim R 365 at 371 per Brinsden J; Holder and Johnston (1983) 3NSWLR 245; Moyse (1988) 38 A Crim R 169 at 170 per Jacobs J; Brett (1987) 140 LSJS 343 at 345 per King CJ; Sheppard (1995) 77 A Crim R 139; and at 145 per Dowsett J.

31 It has been established that instead of reducing the length of a proper sentence to arrive at a just result, the approach should be to direct that some of the sentences be served concurrently, or partially concurrently. When the arithmetic has been done, it is necessary to have a "last look" at the totality of the criminal behaviour and ask whether the overall term contemplated is appropriate for all of the offences committed: Boskei (1970) 54 Crim App R 519. See also: Wicks v R (1989) 3 WAR 372 at 379 - 380 per Malcolm CJ.

32 In the present context, Fox and Frieberg (op cit) at 727 endorsed the "exponential" point as follows:

"In determining an appropriate total sentence, a court should take into account the argument that severity of sentence is an exponential, not a linear function. As Malcolm CJ explained in Clinch [(1994) 72 A Crim R 301, 306; see also Bowman (1993) 69 A Crim R 530]:

'... the severity of a sentence increases at a greater rate than any increase in the length of the sentence.' "

33 As far as the "second limb" of the totality principle described by Thomas, op cit, is concerned, Ipp J noted in Bowman (supra) at 541 - 542 that the limits of this second limb were fully examined in Jarvis (supra). His Honour referred at 541 to the comments which he had made in that case to the effect that the "crushing" effect of a cumulative or an aggregate sentence is no more a mitigatory factor than the crushing effect of a severe sentence imposed for a single offence. It was also said that the "crushing effect" of a sentence was merely one of the mitigating factors to be taken into account in determining whether a particular term of imprisonment is proportionate to the criminality involved. His Honour went on to say at 542:

"In Jarvis I expressed the view (with which Murray J agreed) that the explanation for the phenomenon it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed was that 'the severity of a term of imprisonment increases exponentially as to the length'."

34 In Jarvis (supra) at 213, Murray J expressly dealt with the explanation by Ipp J that in the context of the totality principle, the total sentence imposed must be proportionate to the gravity of the offences. As Murray J put it at 213:

"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."

35 In Jarvis (supra), Anderson J said at 215:

"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."

36 In Jarvis (supra) Anderson J also said at 216:

"I am inclined to think that in this kind of case, where the second sentence for an unrelated, unconnected offence is reduced on account of the earlier sentences, the courts are not solely (if at all) applying the totality principle in the sense in which that principle is expounded."

"Because the offences had been committed in the course of a crime spree of relatively short duration, there was no difficulty in treating the case as falling into the 'continuing episode' category of cases in which it would have been appropriate for a single sentencing court to review the aggregate sentence and consider whether it was proportionate to the whole episode."

"In my opinion, where the case is not of a kind in which it is proper to regard the conduct as one continuing episode and each separate offence as 'part of a whole', the justification for lowering the later sentences may not wholly reside in the totality principle. It is not simply a question of proportionateness (although even in this kind of case it may be said that to commit the same crime twice does not call for double the sentence) but of taking into account the powerful mitigating circumstance that the sentence being imposed is to be a consecutive sentence not capable of taking effect until after the completion of the custodial part of an existing sentence. In my opinion, a sentence which will not take effect for some years is in itself a harsher sentence than one of the same length which takes effect immediately. On this account cumulative sentences were once even thought to be invalid. As Professor Cross observed in 'The English Sentencing System' (Butterworths 1971) 77-78:

'At one time a certain amount of uneasiness seems to have been felt over the question of the validity of consecutive prison sentences, although they were upheld in the 18th Century (R v Wilkes [1770] EngR 32; [1769] 4 Burr 2527 at page 2577). Thus Lord Halsbury once said:

"What earthly right has a judge to say 'You shall be sentenced to 7 years penal servitude, the sentence to begin in 10 years time'? If you cannot do that how does another sentence for another offence justify you in doing it".

There are also other considerations mentioned in R v Todd (at 519). They include fairness to the accused requiring weight to be given to the likely progress that he or she will have made toward rehabilitation during the term of the previous sentence or sentences, and the fact that the crimes, the subject of a cumulative sentence or sentences will be much staler by the time those sentences take effect."

"There is not the same requirement for the [subsequent] sentence to achieve a personal or general deterrent effect because that will already have been achieved (hopefully) by the earlier sentence. In short, in considering the sentence that is to be served at the completion of an existing sentence, there is not as much emphasis required on prevention, deterrence and reform as would otherwise have been the case. I think all of these matters can properly and sensibly lead to a marked reduction in the second lot of sentences without attempting to rationalise the approach by reference to the notions of aggregation or of 'crushing' sentences. After all, as was pointed in Vaitos, a long sentence is not necessarily a crushing sentence and a sentence that might be thought by the prisoner to be a crushing sentence is not necessarily excessive or 'more than enough': Magee v R [1980] WAR 117 per Wickham J at 119. Moreover, this approach does not necessarily demand of the second sentencing court that it should make a rigorous analysis of the facts and circumstances of the first unrelated crimes as is required if the 'totality' of the criminal conduct is to be 'viewed as a whole' for the purposes of the two sets of sentences. This would often be an unreal exercise, especially as the first sentencing court will not have engaged in it relative to the second lot of sentences."

40 The view expressed by Anderson J was that the imposition of a second or subsequent sentence of imprisonment cumulative upon an earlier sentence has a more severe impact upon the offender than if it had been the only sentence imposed. This is because "a sentence which will not take effect for some years is in itself a harsher sentence than one of the same length which takes effect immediately". In other words, there is a compounding effect in terms of severity by which, for example, a doubling of a sentence will have a result which makes the sentence more than twice as severe. It seems to me that this reflects a colloquial use of "exponential" rather than a mathematical use. In commenting on the totality principle, Andrew Ashworth (Vinerian Professor of English law at the University of Oxford) in Sentencing and Criminal Justice (3rd Ed 2000) commented that in the context of the totality principle:

"If the leading principle is to retain some overall proportionality with the seriousness of the type of offence involved, it follows that each extra offence must have a diminishing incremental effect on the overall sentence."

41 This is the converse of the proposition that the severity of a sentence increases exponentially as it increases in length.

42 In Clinch v The Queen, unreported; CCA SCt of WA; Library No 940321; 1 March 1994, the Court of Criminal Appeal held that a declaration and direction made by the learned sentencing Judge that an offender was an habitual criminal under s 661 of the Criminal Code should be set aside. In my judgment (with whom Pidgeon and Seaman JJ agreed) I said at 10 - 11:

"That having been done, the position then is that the applicant remained sentenced to imprisonment for a total of 26 years in respect of which he was eligible for parole in respect of sentences totalling 14 years. In my opinion, for the reasons to be published by Seaman J, the proper application of the totality principle in all the circumstances would result in the totality of the sentences being reduced to 19 years. This case provides a graphic example of the fact that the severity of a term of imprisonment increases exponentially as it increases in length: Vaitos (1981) 4 A Crim R 238; and Jarvis v The Queen unreported; CCA S Ct of WA; Library No 930341; 14 June 1993 per Ipp J (with whom Murray J agreed). In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of 5 years is more than 5 times as severe as a sentence of one year. Similarly, while a sentence of 7 years may be appropriate for one set of offences and a sentence of 8 years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences."

43 Pidgeon J agreed with the reasons of Seaman J. In the course of his judgment at 20 - 21, Seaman J cited with approval the judgment of Ipp J in Jarvis (supra) at 206 - 207 which I have already cited, including the passage in which Ipp J said at 207 that the reason for the reduction of otherwise proportionate sentences for particular crimes was that the severity of a sentence of imprisonment "increases exponentially as it increases in length". Seaman J also cited the passage in the judgment of Murray J in Jarvis at 213 adopting the explanation for the principle that a sentence must be proportionate to the gravity of the crime stated by Ipp J.

44 In Robson v The Queen, unreported; CCA SCt of WA; Library No 940377; 28 July 1994, the Court set aside the sentences imposed on Robson and substituted lesser sentences in the application of the totality principle.

45 Ipp J (with whom Kennedy and Rowland JJ agreed) said at 8 - 9:

"The sentences imposed by the learned sentencing Judge had the effect that the applicant faced an overall term of imprisonment of between 15 and 16 years. Having regard to the totality principle (and that the severity of a term of imprisonment increases exponentially as it increases in length: Jarvis v The Queen ...) I consider that in the particular circumstances of this case, that overall period is excessive."

46 In Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 12 July 1994, the applicant was sentenced to imprisonment for 14 years for attempted murder by stabbing, the subject of one indictment, and a cumulative sentence of 7 years in respect of a serious of violent sexual assaults and deprivation of liberty of a second victim, the subject of a second indictment, together with a direction that he be detained at the Governor's pleasure. The sentences were confirmed by the Court of Criminal Appeal. In a judgment with which Ipp and Scott JJ agreed, I said at 21 - 22 that:

"An attempt was made by counsel for the applicant to argue that this was a case which fell within the principle that where a number of offences arise from substantially the same act or the same circumstances or a closely related series of occurrences, a cumulative penalty should not be imposed: cf Brown (1989) 5 A Crim R 504. It was submitted that the counts in the second indictment 'occurred in close proximity to the attempted murder, the subject of the first indictment and was a direct consequence of that attempted murder.' In my opinion there is no substance in these whatsoever in these submissions. While all the offences occurred on the one night, they involved quite different offences and different victims. The only possible justification for reducing the total of the sentences which would otherwise be justified for the attempted murder, on the one hand, and the sexual assaults on the other, would be the application of the totality principle.

It may be accepted that the total of all the sentences imposed should fairly and justly reflect the total criminality of the offender's conduct. In this context it is not unusual for an overall term of imprisonment to be reduced, even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed. This reflects the fact that the severity of a term of imprisonment increases exponentially as it increases in length: Vaitos (1981) 4 A Crim R 238; Jarvis v The Queen [supra] per Ipp J (with whom Murray J agreed) and Clinch [supra] per Malcolm CJ at 10. In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence."

47 In Woods v The Queen (1994) 14 WAR 341 at 345 - 359, Anderson J undertook an extensive review of the decisions of this Court prior to July 1994 involving multiple prolonged aggravated sexual assaults upon a young child in the family environment involving the taking advantage of a position of trust. His Honour made it clear at 345 that in such cases the law demands the protection of young children so that the dominant sentencing considerations are punishment and general and personal deterrence: R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987. His Honour also reviewed at 345 - 354 the decision in a series of cases including Tihema v the Queen, unreported; CCA SCt of WA; Library No 940137; 17 March 1994; Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305; Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993; Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992; and Podirsky v The Queen (1990) 3 WAR 128 at 140 - 141 per Malcolm CJ, Wallace and Walsh JJ.

48 In "E" v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996, it was held that a total effective sentence of imprisonment for 12 years for 21 sexual offences was not excessive, in the context of the totality principle. Wallwork J (with whom Kennedy J agreed) concluded that the aggregate sentence of 12 years did not offend the totality principle. Neither of their Honours referred to Jarvis (supra). Murray J came to the same conclusion after making a detailed examination of a number of previous decisions. Reference was made by his Honour to Jarvis (supra) at 7, but in the context that the "crushing effect" of a term of imprisonment being a matter to be dealt with, not in terms of the subjective effect of the sentence on a particular offender, but in terms of an objective consideration of the total effect of what is to be done by way of sentencing. At 9 - 10 following a reference to Mill v The Queen (supra), Murray J discussed the totality principle as stated in that case, but made no reference to the "exponential" point.

49 In De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, the applicant was sentenced for multiple sexual offences against his stepdaughters under the age of 16. The totality principle was considered in the context of sexual offences involving more than one child. A total effective sentence of imprisonment for 10 years was upheld. Ipp J said at 12 that:

"As explained in Jarvis ... the sentence should be proportionate to the degree of criminality involved and the severity of a term increases exponentially as it increases in length."

50 Both Wallwork and Owen JJ agreed with the reasons of Ipp J.

51 In R v Ogilvie, unreported; CCA SCt of WA; Library No 960643; 8 November 1996, a Crown appeal, the leading judgment was delivered by Murray J. His Honour said at 17 - 19 that, in accordance with the decision in Jarvis (supra), the "last look" which is given to the proposed sentences, may have the effect of reducing the sentences to be imposed because "the severity of a term of imprisonment increases exponentially as it increases in length". Franklyn J agreed with the reasons of Murray J. Owen J would also have allowed the appeal, but would have imposed a lesser sentence than the majority.

52 In Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996, an aggregate sentence of 4-1/2 years was imposed in the District Court cumulative upon an aggregate sentence of 5-1/2 years previously imposed in the Supreme Court. It was held that the aggregate sentence imposed in the District Court should be reduced to imprisonment for 2-1/2 years on account of the totality principle. Murray J said at 11 that Jarvis (supra) was the "main authority" in which the operation of the totality principle had been discussed by this Court and cited, with approval, the passage in the judgment of Ipp J which explained the reason for the reduction in the overall total sentence was because "the severity of a term of imprisonment increases exponentially as it increases in length". Both Steytler J and I agreed with the reasons and conclusions of Murray J.

53 In Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 9 July 1997, the applicant was sentenced for multiple sexual offences against his two daughters. There was one series of sentences totaling 13 years for one series of offences by one Judge and, later, a subsequent sentence imposed by another Judge of a cumulative sentence of 2 years and 3 months. On appeal, this last sentence was ordered to be served concurrently with the previous sentences. Walsh J at 205 (with whom Kennedy and Franklyn JJ agreed) quoted with approval the passage in the judgment of Jarvis (supra) at 205 - 207, including the explanation that "the severity of a term of imprisonment increases exponentially as it increases in length".

54 In De Luce v The Queen (supra) at 12, Ipp J (with whom Wallwork and Owen JJ agreed) referred to the exposition of Anderson J in Woods v The Queen (supra). In Woods at 358, Anderson J concluded at 33 that:

"Although his Honour did not articulate it in his sentencing reasons, there is every reason to believe that in fixing a term of 5 years, his Honour was accommodating the totality principle. Looked at in the light of the range of sentences commonly imposed in this Court, it obviously contained a significant discount and there is every reason to suppose it was a discount made because of consideration that came into play whenever a cumulative sentence is imposed, as to which see the extensive discussion in Jarvis v R (Ipp, Murray and Anderson JJ)."

55 Seaman and I both agreed with Anderson J concerning the range of sentences commonly imposed in relation to the commission of sexual offences against children and that a series of sexual offences committed over a period of some years, involving digital penetration of the vagina and indecent assaults of various kinds on a single child under the age of 16 by a person in a position of trust can lead to an overall sentence of between 6 and 8 years' imprisonment. Where more than one child was involved, Ipp J at 12 considered that in such a case:

"Anderson J's exposition also demonstrates that where more than one child is involved as a victim, the totality principle may only have a marginal effect in reduction of the overall sentence, particularly where each victim is aware of the degrading or corrupt conduct being perpetrated on the other. As is explained in Jarvis [supra] the sentence should be proportionate to the degree of criminality involved and the severity of a sentence increases exponentially as it increases in length. Where, however, more than one child is subjected to corrupting and degrading criminal behaviour by a person in a position of trust it may well be that the criminality of the conduct increases exponentially by the very fact that serious and long term harm has been caused to more than one child."

56 In Postiglione v The Queen (supra), McHugh J said at 307 - 308:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved . In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."

57 Murray J repeated and applied the exponentially point in Jarvis (supra) in his judgment in R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1999 (with which Walsh and Wallwork JJ agreed). In Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587, 9 October 1998, Murray J (with whom Ipp and Wallwork JJ agreed) said at 24 that:

"As Ipp J noted in Jarvis at p.10 of his reasons the totality principle is effectively concerned with the fact that 'the severity of the term of imprisonment increases exponentially as it increases in length.' "

58 In Wegner v The Queen [1999] WASCA 26 in a joint judgment, Kennedy, Ipp and Wallwork JJ held that the sentencing Judge had failed to apply the totality principle and at [13] cited with approval the passage in the judgment of Ipp J in Jarvis, (supra), at 10 that "the severity of a term of imprisonment increases exponentially as it increases in length". Their Honours resentenced the appellant in that case saying at [15]:

" ... applying the totality principle having regard to the exponential effect of being required to serve the existing 6 year term of imprisonment for the burglary offences, reconsider that the appropriate term of imprisonment for the armed robbery offence would be 6 years."

59 A month later in Mesiti v The Queen [1999] WASCA 76, the Court of Criminal Appeal (Malcolm CJ, Ipp and Steytler JJ) again applied Jarvis (supra). Ipp J (with whom the other members of the Court agreed) repeated the "exponentially" point at [36] saying:

"Thus the sentence of 9 years imposed on Cofaro should properly be regarded as of greater severity than the same sentence imposed on the appellant simply because it was part of the longer overall sentence to be served by Cofaro in respect of ... other offences."

60 The relevant passage in Jarvis (supra) was applied in Vilai v The Queen [1999] WASCA 275 by Murray J (with whom Kennedy J agreed) at [12]. Pidgeon J dissented. His Honour said, however, at [5]:

"It was made clear in Jarvis v R (1998) 20 WAR 201 that the totality of a sentence must be proportionate to the totality of the criminal behaviour. The learned sentencing Judge was very conscious of this by reaching the conclusion that the totality of the criminal behaviour required a sentence of 14 years' imprisonment. This was a judgment open to him on the evidence he heard. His Honour, in making this assessment, ensured that he did not offend the totality principle. I would refuse leave."

61 In "D" v The Queen [2000] WASCA 137, the appellant had been sentenced for a number of sexual offences. One of the grounds of appeal was that the sentencing Judge had misapplied the totality principle. Miller J (with whom Pidgeon and Wallwork JJ agreed) referred at [9] to the review of the cases by Anderson J in Woods, (supra), and also referred with apparent approval to the statement of Ipp J in Jarvis (supra) to the effect that the severity of a sentence of imprisonment "increases exponentially as it increases in length".

62 In Pop v The Queen [2000] WASCA 283 at [26] the relevant statement of Ipp J in Jarvis (supra) regarding the exponentiality point was applied by Wallwork J. In that case, a point arose whether it was open to a sentencing Judge to treat the circumstance of an offence committed by an offender while on bail as an aggravating circumstance. In Pop at [20], Parker J at [33] referred to Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465 at 477 in which Mason CJ, Brennan, Dawson and Toohey JJ said that it was relevant whether the offence was an "uncharacteristic aberration or whether the offender has manifested in his commission of the offence a continuing attitude of disobedience to the law ...". His Honour concluded that it was the latter and held that it was a circumstance of aggravation. A similar conclusion was reached by McKechnie J at [87].

63 In the meantime, in Pearce v The Queen (1998) 194 CLR 610, in a judgment published on 10 September 1995 McHugh, Hayne and Callinan JJ said at [43] - [45]:

"43. The trial Judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

44. Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

45. To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality: Mill v The Queen (1988) 166 CLR 59."

64 In R v Quartermaine [2000] WASCA 341, Wheeler J (with whom Kennedy J agreed) referred to Jarvis (supra) and commented at [31] that in the context of the totality principle:

"... it is necessary to bear in mind that the burden of a sentence of imprisonment increases exponentially as the length increases. For that reason, a sentence imposed in respect of a later offence, where the offender is already in custody for other reasons, may when added to the sentences imposed in respect of those earlier offences, have a 'crushing' effect which it would not have if considered on its own."

65 In Blight v The Queen [2001] WASCA 122, Kennedy J (with whom Wallwork and Murray JJ agreed) concluded at [108] that no error in the approach adopted by the sentencing Judge had been identified. That approach included the following as stated by Kennedy J at [106] - [107] namely:

"[106] Her Honour acknowledged that the severity of a term of imprisonment increases exponentially as it increases in length, referring to Jarvis v The Queen (1993) 20 WAR 201. She indicated that the sentence she imposed was required to reflect community abhorrence of the type of behaviour in which he had engaged. She also indicated that the sentence must punish the applicant and deter him from behaving again as he did towards C. Her Honour might well have added the need for the sentence to serve as a general deterrent to others who might be tempted to act in a similar manner, as to which see R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at 6. There was little by way of mitigation in the circumstances. As her Honour pointed out, one of the tragedies of the case was that a family unit had been destroyed, and the indications were that it was unlikely to be repaired.

[107] The applicant's contention that all the sentences should have been ordered to be served concurrently cannot be accepted. The individual sentences are at the lower end of the scale, and there is no basis for any suggestion that the offences all formed part of the one 'transaction' so as to justify concurrency. It is apparent that the learned sentencing Judge had regard to the principle of totality when fixing the sentence which she did. She did so by carefully directing concurrency when offences occurred close in time to one another so that they could reasonably be described as together comprising a single incident."

66 In Boudville v The Queen [2001] WASCA 133 in my judgment (with which Wallwork and Murray JJ agreed) at [31] it was noted with approval that:

"The learned Judge approached the sentencing task on the basis that the sentences imposed should be proportionate to the degree of criminality involved taking into account that the severity of a term of imprisonment increases exponentially as the criminality increases. This impact, of course, could be tempered by the application of the totality principle, although the criminality of the offender is higher where there is a consistent course of sexual abuse involved: cf Podirsky (1989) 43 A Crim R 404."

67 In that case the Court concluded that the sentences imposed, whether looked at individually or in their totality, were well within the range of the proper exercise of the sentencing discretion.

68 In Ugle v The Queen [2001] WASCA 268, the relevant passage in the judgment of Ipp J in Jarvis (supra) was applied in my judgment (with whom Steytler J and Burchett AUJ agreed) at [44] - [45].

69 In Ricciardello v The Queen [2001] WASCA 416, the appellant was sentenced to imprisonment for 4 years for robbery with violence, 5 years concurrent for deprivation of liberty (kidnapping) and 7 years 9 months cumulative upon a sentence already being served, making a total of 13 years and 9 months without parole. This in turn was cumulative upon a sentence of 6 years and 22 days for breach of parole making an overall total sentence of 19 years and 9 months. None of the individual sentences were held to be manifestly excessive, but the totality principle was not taken into account in relation to the sentence for breach of parole. The total sentence was reduced to 16 years and 9 months on account of the principle.

70 It was argued, during the appeal, that the "exponentiality" point in Jarvis (supra) had not been taken into account. In my judgment, at [19], I concluded that none of the individual sentences were excessive, but that the totality principle should have been taken into account in respect of all of the sentences. Anderson J said at [41] that he agreed with my judgment. His Honour, however, questioned the proposition that the severity of a sentence "increases exponentially as it increases in length", which had been adopted by Ipp J in Jarvis (supra) at 207 with the concurrence of Murray J at 213. Anderson J then said at [43] - [45]:

"43 I would respectfully regard these observations as obiter dicta. They state a proposition which I do not regard as self-evident and, so far as I have been able to discover, cannot be found in the leading texts on the theory of sentencing. With the greatest respect, I cannot subscribe to it.

44 I do not consider it to be the law that Judges must sentence on the basis that the severity of a sentence increases exponentially as it increases in length. The totality principle does not, in my respectful opinion, spring from or depend on any such thesis. The totality principle is, I believe, but an aspect of the sentencing process which recognises that if the sentencing court mechanically hands down successive sentences with respect to a series of offences, the resulting aggregate might punish the offender excessively even if each individual sentence is just. The principle of totality simply requires the court to remember that "the totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with": Larsen v The Queen (1989) 44 A Crim R 121 per Badgery-Parker J at 125. See also R v Todd [1982] 2 NSWLR 517 per Street CJ at 519 - 520; Mill v The Queen (1988) 166 CLR 59 at 63.

45 As Street CJ said in Todd (loc cit) it is probably not possible to lay down the general principle any more specifically."

71 In Abela v The Queen [2002] WASCA 279, the applicant had been convicted on his plea of guilty and sentenced on six counts of manufacturing a prohibited drug. Concurrent sentences of 7 years were imposed for each of the six offences. On appeal, the sentences were varied. The applicant had relied on Jarvis (supra), and, in particular, the "exponentiality" point as noted in my judgment at [48] - [49]. Reference was also made to Greenburg (1993) 68 A Crim R 392 at 408 per Kennedy, Pidgeon and Rowland JJ where their Honours said:

"His Honour imposed, in respect to each individual offence, a moderate sentence clearly with the totality principle in mind. In Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993, Ipp J, when considering the principle of totality analysed recent authority including Mill v The Queen (1988) 166 CLR 59 at 62- 63. Ipp J referred to the rule that in taking "a last look" at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved and that principle is basic to the law of sentencing. An application of the totality principle must not erode this important aspect. We are not persuaded that his Honour was in error in imposing the sentence he did on the first indictment subject to his giving a greater credit to the plea of guilty. His Honour very carefully analysed all factors."

72 While, with the agreement of Wallwork J, I was prepared to restructure the sentences in Abela (supra), the total sentence was not in the end reduced. Wallwork J and Steytler JJ were of the same view.

73 It will be apparent from the course of decisions since Jarvis (supra) that the exponentiality point has been approved and applied in a significant number of cases and adopted on a number of occasions in this Court by me and by Kennedy, Pidgeon, Rowland, Franklyn, Seaman, Walsh, Ipp, Wallwork, Murray, Owen, Scott, Steytler, Wheeler and (at least on the face of it) by Miller JJ, as well as by Burchett AUJ and Einfeld AJ.

74 In my opinion, with all due respect, given that the decision in Jarvis has in the past been approved, adopted and applied by so many members of the Court over a period of some 10 years since it was decided on 14 June 1993, it would not be appropriate for it to be overruled and departed from by a majority decision of a Court of Criminal Appeal constituted by a bench of three Judges. If Jarvis is to be overruled or departed from, I consider that is a step which should be taken, if it is to be taken at all, by a bench constituted by five Judges of the Court.

75 In this context, it is also necessary to consider the implications for Western Australian courts of the decision of the High Court in Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233. This issue was considered in R v Place [2002] SASC 101; (2002) 189 ALR 431 by the Court of Criminal Appeal of South Australia early in 2002 by a bench of five Judges, namely, Doyle CJ, Prior, Lander, Martin and Gray JJ. The Court was unanimously of the opinion that it was not the practice in South Australian courts, when determining the extent of the reduction in sentence for a plea of guilty accompanied by certain considerations, to attempt to separate out one or more of such considerations. However, it was the practice to identify the specific reduction given, taking into account the timing of the plea, contrition, co-operation with and assistance to the authorities: R v Harris [1992] SASC 3624; (1992) 59 SASR 300; R v Wiskich (2000) 207 LSJS 431; R v Wall (2000) 209 LSJS 135.

76 It was further held that the "mathematical" two-stage approach with which the High Court was concerned in Wong was not the process which had been approved and adopted in South Australia with respect to reduction of sentence for guilty pleas. Consequently, the Court of Criminal Appeal of South Australia was not constrained by authority to hold that the existing practice in South Australia was wrong: R v Place (supra) at [80] per Doyle CJ, Prior, Lander and Martin JJ with whom Gray J agreed at [118]. In that case, the sentencing Judge imposed a sentence of 11 years and 6 months with a non-parole period of 7 years and 6 months in respect of six offences of armed robbery, four of failing to comply with bail; three of illegal use of a motor vehicle and two of threatening with a firearm. The appellant appealed on the grounds that (a) tariff sentences had been imposed based purely on the objective circumstances of the offences without regard to the individual circumstances of the offences and the appellant; (b) the application of the totality principle; (c) adopting a "two-stage" process; and (d) identifying specific reductions.

77 It followed that the existing practice in South Australia should continue. It was further held at [90] that the sentencing Judge erred in applying the totality principle to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the guilty plea.

78 In Place the sentencing Judge adopted what has been called the "two-stage approach". In that context, use was also made of s 18A of the Criminal Law(Sentencing) Act 1988 (SA) which enables a single sentence to be imposed in respect of multiple offences. As appears from par [2] of the joint judgment on appeal, the sentencing Judge then said:

"Armed robbery in circumstances such as these normally attracts a head sentence of six to eight years.

In the circumstances of the six offences of armed robbery, together with the matters for which consideration is sought, and the offences of breach of bail charged on complaint, I would start with a sentence of 32 years imprisonment. The principle of totality requires that this be reduced. I consider an appropriate starting point is 22 years imprisonment.

From this you are to receive credit for the matters I have mentioned; your confession, which enabled the solving of several offences and saved significant police and court time, your subsequent immediate pleas of guilty and acknowledgement of the other considerations and your contrition."

79 His Honour allowed a 40 per cent reduction for the plea of guilty and co-operation and said that further credit should be given for the appellant's involvement in the Drug Court programme. These credits resulted in a head sentence of 12 years from which he deducted 6 months for time spent in custody or on home detention bail, resulting in a sentence of 11 years and 6 months' imprisonment. The judgment in Wong (supra) was delivered three days later. As their Honours in the Court of Criminal Appeal of South Australia noted in Place (supra) at [5], the conclusion of the High Court in Wong (supra) was that the guideline judgment went beyond the jurisdiction of the Court of Appeal of New South Wales. The joint judgment in Place (supra) also noted at [5] that Gaudron, Gummow and Hayne JJ had disapproved of the "two-stage approach" to sentencing, saying that it was "wrong in principle". As a consequence, the Court of Criminal Appeal of South Australia considered at [6] that the decision in Wong required the Court:

"... to examine its approach to the fixing of a standard for the crime of armed robbery and to determine whether it is an error for a sentencing judge to identify a specific reduction for a plea of guilty and whether this court has been in error in encouraging sentencing courts to do so."

80 In terms of the fixing of a standard, Gaudron, Gummow and Hayne JJ identified at [56] two steps in the reasoning of the NSW Court of Appeal, namely:

"That the result of sentencing an offender is an aspect of the discretionary decision and that the weight of the narcotic imported is the chief factor to be taken into account in fixing the sentence to be imposed on a person knowingly participating in the importation."

81 Their Honours concluded that this approach was inconsistent with the provisions of Pt 1B of the Crimes Act 1914 (Cth). In particular, s 16A identifies a wide range of matters to be taken into account. The "grid" which comprised the basis of the guideline was regarded by their Honours as:

"... founded entirely on gravity of the offence as measured only by the weight of narcotic concerned."

82 This was a departure from the provision of s 16A which required that the sentencing Judge took into account all of the factors identified in s 16A, which was in similar terms to s 10 of the Criminal Law (Sentencing) Act 1988 (SA).

83 In pars [14] - [20] of the joint judgment in R v Place (supra), their Honours said:

"By way of contrast to the strictures of the guideline under consideration, Gaudron, Gummow and Hayne JJ compared what was said by the majority of the Full Court of this state in Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150. In Cadd the Full Court gave authoritative guidance to magistrates about the type of punishment that should ordinarily be imposed by magistrates when sentencing persons convicted of driving a motor vehicle while disqualified from holding or obtaining a driving licence. The guidance related to actual imprisonment rather than a suspended sentence and no suggestion was made about the length of the sentence that should be imposed. Their Honours observed that the real content of the guidance lay in the reasons which were given for the stated conclusion. Their Honours said (at 249 [63]):

[63] The reasons focused upon the nature of the offence, the consequences of its commission, and the purpose of punishing its commission. Thus, Doyle CJ identified the offence of driving while disqualified as 'erod[ing] disqualification as a means of punishment' [ [1997] SASC 6187; (1997) 69 SASR 150 at 162], especially when regard was had to the fact that a person driving while disqualified would ordinarily be detected only when the attention of police was attracted for some other reason. Reference was made to various other relevant considerations that might bear upon sentencing, such as the offender's character, age, contrition and the like, or the impact of imprisonment on the offender's employment [ [1997] SASC 6187; (1997) 69 SASR 150 at 168], but the detail of the treatment of these matters is not important. Having regard to the nature of the offence, the consequences of its commission, and the purpose of punishing its commission, Doyle CJ concluded that deterrence must predominate in sentencing for the offence [ [1997] SASC 6187; (1997) 69 SASR 150 at 166]. That being so, as Doyle CJ said, [ [1997] SASC 6187; (1997) 69 SASR 150 at 167], 'circumstances justifying suspension [of a term of imprisonment] are unlikely to be found in what are routine or run of the mill aspects of the circumstances of this offence.' What is to be noted is that the court articulated the reasons which it had for disposing of the appeals before it by reference to the principles which informed those dispositions. It is those principles which properly guide future sentencers. [emphasis added]"

84 In Cadd (supra) five Judges of the South Australian Court of Criminal Appeal confirmed the role of the appellate court "in setting standards of penalty". Doyle CJ said at 165:

"It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type."

85 In my opinion, that is an approach which is entirely consistent with the approach adopted by this Court in cases such as Podirsky v The Queen (supra); Woods (supra); Jarvis (supra); Salisbury v The Queen (1994) 12 WAR 452; Hodder v The Queen (1995) 15 WAR 264; Sell v The Queen (1995) 15 WAR 240 (sexual offences); Krakouer v The Queen (1996) 16 WAR 1; Mankovina v The Queen (No 2) (1997) 19 WAR 119; and Heryardi v The Queen (1998) 19 WAR 383 (drug offences); Miles v The Queen (1997) 17 WAR 518; Roser v The Queen (2001) 24 WAR 254 (armed robbery).

86 Unlike the Court of Criminal Appeal in South Australia, this Court is also specifically empowered by s 143(1) of the Sentencing Act 1995 (WA) to give a guideline judgment containing guidelines to be taken into account by Courts sentencing offenders. Such a judgment may be given in any proceeding considered appropriate by the Court giving it, and whether or not it is necessary for the purpose of determining the

proceeding. Section 143(3) provides that a guideline judgment may be reviewed, varied or revoked by a subsequent guideline judgment.

87 In my opinion, this is not an appropriate occasion to deliver a guideline judgment in relation to sentencing for any of the various offences committed in the present case. In my opinion, none of the individual sentences imposed were manifestly excessive. In addition, I consider that the total of all the sentences imposed, namely, a sentence of 15 years, did not infringe the totality principle.

88 I would grant leave to appeal but dismiss the appeal.

89 ANDERSON J: This is an application for leave to appeal against an aggregate sentence of 15 years' imprisonment imposed by White AUJ on 21 June 2002 in respect of a total of 33 offences committed between 15 September 2000 and 31 May 2001. The applicant contends that the aggregate sentence of 15 years is manifestly excessive and that a number of individual sentences are manifestly excessive.

90 The individual sentences added up to 58 years and 1 month and there were fines totalling $1,700. In order to accommodate the totality principle the Judge structured the sentences by ordering part cumulation only, allowing many of the sentences to run concurrently.

91 Because complaint is made about the aggregate of 15 years as well as about the length of some of the individual sentences it is necessary to examine the whole of the applicant's criminal conduct in order to see whether 15 years is too much.

92 First it is convenient to say something about the nature of the proceedings which resulted in the convictions. The original indictment drawn up on 10 December 2001 and presented in this Court alleged 5 offences against the applicant's brother, Jason Robert Herbert, and 3 offences against the applicant of which one was alleged to have been committed in company with his brother. It would appear that there was a successful application to sever the indictment and the applicant was presented for trial alone. Furthermore, he was presented for trial on only one count in the indictment which was the count of armed robbery with threats of violence committed in company with his brother. He was convicted after trial of that offence and immediately indicated a wish to plead guilty to the two other offences charged on the original indictment, one being an offence of armed robbery with threats of violence and the

other being possession of an unlicensed firearm - a double-barrelled shotgun. He also requested to be dealt with in respect of 30 other offences, the charges for which were then pending. In respect to those offences he gave a notice pursuant to s 32 of the Sentencing Act 1995. That section provides that an offender who is to be sentenced by a superior court may request the court to also deal with pending charges, whereupon a list of the pending charges is to be prepared and served. Those charges must then be put to the offender who may plead to them and if the Crown consents he may be sentenced at the same time as sentence is passed in respect of the original offence.

93 As has been mentioned the list which was prepared and served under s 32 enumerated a total of 30 offences, all of which had been committed by the applicant prior to the offences on the indictment. He did of course plead guilty to all of these offences. All of them were pending in the Court of Petty Sessions, some at Perth and some at Joondalup. The facts giving rise to the 30 charges are as follows:

1. Charge No. 26820/01 - No motor driver's licence

3. Charge No. 26819/01 - Failing to provide name

94 On 15 September 2000 the applicant was riding a motor cycle on a suburban street closely behind the vehicle ahead of it. That vehicle slowed to make a right hand turn into a driveway and the applicant ran into the back of it damaging both the motor cycle and the vehicle. At the scene of this accident the driver of the vehicle asked the applicant for his name and address whereupon the applicant became abusive, refused to provide the details requested and left the scene. The applicant did not hold a motor vehicle licence.

95 The maximum penalty for each of these offences was a fine of $600. His Honour imposed penalties of $200, $100 and $200 respectively.

96 On 27 February 2001 the applicant entered through the rear door of Savannah's Restaurant at the Rendezvous Hotel on West Coast Highway, Scarborough. The restaurant had not yet opened but he made his way into the kitchen and the dining room. He was confronted by a staff member and escorted from the premises. A short time later he returned to the kitchen and stole three bottles of spirits valued at $150 and a set of seven Mundial knives which were in a locked carry box and a set of vehicle keys which were in a bag on a bench. The knives were valued at about $400. He then left the restaurant with the stolen property and went to the hotel car park using the vehicle keys which he had stolen to open the vehicle. From the vehicle he stole the removable face to the car stereo and the stereo's graphic equaliser. The total value of this property was about $900. He was seen by a security officer committing this offence and chased to the exit of the car park where he was over-powered by a number of people, who called the police. At the police station he refused to answer any questions or take part in a video record of interview. The set of knives was not recovered but the other property was. The maximum penalty for each of these offences was 7 years' imprisonment. The Judge sentenced the applicant to 4 months' imprisonment on each charge.

97 This charge of an offence against the Weapons Act also arises from the events the subject of the three charges immediately above. As the applicant ran from the car park he drew a pocket knife to intimidate his pursuers and threatened one of the security officers with it, holding the knife up with its blade exposed. The maximum penalty for this offence is $4,000 or 12 months' imprisonment and his Honour imposed a penalty of 9 months' imprisonment.

98 He was released on bail after being charged with the offence immediately above to appear at the Perth Court of Petty Sessions on 1 March. He failed to appear on that date and a bench warrant was issued pursuant to which he was arrested on 22 March and this charge was preferred. The maximum penalty is a fine of $10,000 or 3 years' imprisonment and his Honour imposed a penalty of 9 months' imprisonment.

11. Charge No. 14403/01 - Possession of amphetamine

99 On 2 March 2001 whilst on the bail abovementioned the applicant was travelling on a train from Joondalup to Perth and approached a 19 year old male passenger, punching him numerous times to the side of the head with a closed fist during which he also struck the passenger to the head with his knee.

100 After alighting from the train at the Warwick Station following his attack on the passenger, he was approached by railway special constables due to his behaviour on that platform. This involved loud use of obscene language in the presence of many members of the public waiting for train services. He refused to desist and continued to use obscene language while on the platform including making an offensive gesture towards an officer. After being asked again to desist and refusing to do so he was arrested and taken to the police station. Details of the language which he used would suggest that he was in a disturbed state. The language was foul and would have been highly offensive to the officers attempting to deal with him and to the members of the public nearby.

101 At the police station he was subject to a routine search and a number of small resealable plastic bags were located in his right trouser pocket. Three of the bags contained a quality of white crystalline material that was later confirmed to be amphetamine. He was conveyed to the East Perth Lockup where these three charges were preferred. The maximum penalty with respect to the charge of assault was 18 months' imprisonment or $6,000 or both. The maximum penalty with respect to charge of disorderly conduct was 6 months' imprisonment or $500 or both. The maximum penalty with respect to charge of possession of amphetamines was 2 years' imprisonment or $2,000 or both. His Honour imposed penalties of 6 months' imprisonment, a fine of $100 and imprisonment for 12 months respectively.

102 Sometime between 14 March and 16 March 2001, whilst on bail with respect to the above charges, the applicant obtained possession of an American Express card which had been stolen from a dwelling in Wanneroo. On 16 March he went to a jewellery store at Joondalup and selected a gold chain valued at $629. He produced the American Express card in purchase of the chain. The shop assistant attempted to perform an Eftpos transaction using the card but due to a technical fault it was declined. The assistant then used the card in a manual transaction and the applicant signed the sales voucher as cardholder in the name of the lawful cardholder from whom it had been stolen. When the shop assistant sought authorisation from American Express for the purchase it was declined and the applicant left the store without the gold chain. When he was apprehended by police he refused to co-operate. The maximum penalty for receiving stolen property (the credit card in this case) was 14 years' imprisonment and the maximum penalty for attempted fraud (in this case the attempted use of the stolen credit card) was 31/2 years' imprisonment. The Judge imposed sentences of 4 months and 6 months respectively.

14. Charge No. 25988/01 - No motor driver's licence

17. Charge No. 25987/01 - Failing to report accident

103 On 20 March 2001 while the applicant was on bail with respect to above charges he was driving a motor vehicle in Morley Drive, Dianella when he fell asleep and lost control. The vehicle crashed into trees before rolling over. These facts give rise to the offence of careless driving. His passenger received a compound fracture to an elbow and wrist and a fractured skull and was trapped in the vehicle for some time. The applicant ran from the scene, failing to remain and render assistance to the passenger. He then failed to attend at a police station to report the accident and never did report it. The applicant was not the holder of a driver's licence. In fact, he has never held a driver's licence. All of these offences were punishable by fines ranging from $600 to $2,500 and the offence of failing to render assistance carried a maximum penalty of 12 months' imprisonment. His Honour imposed penalties of $300, $100, $500 and $200 respectively.

104 On 27 March 2001, during the day, the applicant went to a house in Turnatt Way, Wanneroo to commit a burglary. He tried to get into the house first by attempting to force the rear sliding door and then by removing the flyscreen from the bathroom window and attempting to force open that window. Being unsuccessful he then smashed the kitchen window and got into the house and rummaged through all the rooms and cupboards stealing property to a value of $465 before getting out of the house through the kitchen window. When questioned about this offence after his fingerprints were found on the glass of the kitchen window he refused to co-operate and refused to participate in a video tape record of interview. None of the property was recovered.

105 The maximum penalty for this offence is 18 years' imprisonment. His Honour imposed a term of 5 years' imprisonment.

106 Between the evening of 27 March and the morning of 28 March 2001 the applicant stole a cheque book containing three blank cheques from the glove box of a locked vehicle. At about 10.15 am on 28 March the applicant presented one of the cheques for payment at the Bankwest Warwick branch. The cheque was made out to cash for $860 and the bank cashed it. At about 11.00 am on that same day the applicant presented another of the stolen cheques at the same bank, once again made out to cash for $860 and the bank cashed it. At about 10.30 am on the following day, 29 March, the applicant went back to the bank and presented the third stolen cheque made out to cash for $860. By this time the cheque book had been reported stolen and the bank declined to cash the cheque. The applicant was photographed by a security camera before leaving the bank. When he was later spoken to about the offence he refused to co-operate and declined to be interviewed.

107 This episode gave rise to one charge of stealing (the cheque book), two charges of fraud (the successful cashing of two of the three cheques) and one charge of attempted fraud. The maximum penalty for the charges of stealing and fraud was 7 years' imprisonment and for the charge of attempted fraud was 31/2 years' imprisonment. The penalties imposed by his Honour were 3 years' imprisonment for the charge of stealing and 2 years' imprisonment for each of the charges of fraud and attempted fraud.

108 During the morning of 30 March 2001 the applicant went to a house in Jacobs Close, Wanneroo, removed a flyscreen from a side bedroom window and forced open the sliding window. Having got into the house he stole a watch from a bedroom and jewellery and cash from the main bedroom to a total value of $1,225. An examination at the scene produced evidence of the applicant's fingerprint on the window. He was arrested on 5 April and taken to the Wanneroo Police Station where he agreed to participate in a video record of interview but in that interview denied the offence and denied ever having been at the address. He was then charged with the offence. No property was recovered.

109 The maximum penalty for this offence is 18 years' imprisonment. His Honour imposed a term of 5 years' imprisonment.

110 These charges arise out of the applicant's conduct in threatening the occupants of the house which he had burgled in Jacobs Close, a Mr Brand and a Ms Beeton. At about 1.00 pm on Saturday, 31 March (the day following the burglary) the applicant confronted them at a shopping complex in Wanneroo and abused them for reporting the burglary to the police. The applicant's objective in doing so is not entirely clear but I gather that he expected to come under suspicion and resented the fact that he had been implicated. Mr Brand told the applicant that fingerprints had been found at the scene and that if they were not the applicant's fingerprints the applicant had "nothing to worry about". The applicant then produced a folding knife and told both Mr Brand and Ms Beeton that he had used the knife before to injure people and that unless they stopped accusing him he would come to their home and stab them while they slept. Mr Brand did not report this incident to the police for fear of reprisals and being fearful of their safety he and Ms Beeton decided not to spend the night at their home and went home to gather some possessions, intending to spend the night elsewhere. Ms Beeton left to take some articles to another address. While waiting for her to return Mr Brand heard a loud screeching of tyres and saw the applicant and another man walking down the driveway towards the house from a vehicle which was parked at the top of the driveway. Mr Brand was naturally very alarmed. He feared that the applicant had come to carry out his threats and hid in a back room. There was a knock on the door and the applicant shouted "I know you are home. Come and open the door." Mr Brand then heard the sound of someone walking to the rear of the house and returning to the front. He then heard the front security screen being forcibly shaken and the smashing of a widow. He remained in hiding until he heard the vehicle drive off.

111 The applicant's conduct gave rise to two charges of threatening to injure. The maximum penalty for each offence was 3 years' imprisonment. The penalties imposed by his Honour were 2 years' imprisonment on each charge.

112 Some time between 2.30 pm and 5.15 pm on Sunday, 1 April the applicant went to a house at Beelara Way, Wanneroo to burgle it. He removed the flyscreen from the main bedroom window and opened the window, entered the house and rummaged through drawers and rooms gathering jewellery to a total value of $5,000. An examination of the scene revealed the applicant's fingerprints on the inside frame of the bedroom window. When interviewed the applicant refused to co-operate and declined to take part in a video taped record of interview.

113 The maximum penalty for this offence is 18 years' imprisonment. His Honour imposed a term of 5 years' imprisonment.

114 Between 7.30 am and 2.45 pm on 3 April 2001 the applicant went to a house in Negresco Turn, Currambine to burgle it. He first attempted to force the laundry sliding door but was unsuccessful and he walked down the side of the house and pushed against the main bedroom ensuite window which he managed to open. Upon entering through this window he went through the house and stole a Myers credit card and four cheque forms from a cheque book which was on a kitchen counter next to the telephone.

115 On 4 April he went to a Bankwest branch in Joondalup and presented one of the stolen cheques made out to cash for $460 with a forged signature. The bank cashed the cheque.

116 At about 3.55 pm that same day the applicant attended a Bankwest branch in the Whitfords City Shopping Centre and presented another of the stolen cheques made out to cash in the sum of $460 with a forged signature and once again the bank cashed the cheque.

117 Shortly after 10.00 am on 5 April he attended a Bankwest branch in Woodvale and presented a third stolen cheque made out to cash in the sum of $380 with a forged signature, which the bank cashed.

118 When interviewed about these offences the applicant refused to co-operate and declined to take part in a video taped record of interview.

119 The charge of burglary attracted a maximum sentence of 18 years' imprisonment and each of the three charges of fraud attracted a maximum sentence of 7 years' imprisonment. As to the burglary his Honour imposed a sentence of 5 years' imprisonment and as to each of the three frauds, he imposed a sentence of 2 years' imprisonment.

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.

122 The maximum penalty for aggravated armed robbery is life imprisonment and his Honour imposed a sentence of 8 years' imprisonment.

123 The next count on the indictment to which the applicant pleaded guilty after his conviction on the previous count is also a count of armed robbery in company. At about 11.15 am on 28 May 2001 the applicant went to a pharmacy in Lansdale with a co-offender and approached the counter under the pretext of requesting medication. The co-offender remained outside. The applicant then produced a sawn off shotgun which he had concealed under his clothing. He ordered customers to lie on the floor and demanded that a shop assistant give him money. The customers were several women, one of whom had a child in a pram.

124 The shop assistant opened the cash register and gave the applicant a quantity of cash. The applicant then ordered the pharmacist to open a floor safe. He told the pharmacist that the shot gun was loaded and he clipped the mechanism to suggest that it was being cocked. He was given a further quantity of cash to a total of $784. He then left by the front door and was driven away by the co-offender in a stolen car. During the course of the robbery the applicant had kept the weapon pointed at staff. The maximum penalty for armed robbery in company is life imprisonment. His Honour imposed a sentence of 6 years' imprisonment, this lesser sentence (2 years less than for the armed robbery of which he had been convicted after trial) being no doubt to recognise that in respect of this offence the applicant had pleaded guilty.

125 The third count on the indictment is of possession of an unlicensed firearm. On the morning of 31 May detectives from the Major Crime Investigation Team in conjunction with the Tactical Response Group executed a search warrant under the Firearms Act on a unit in Maylands occupied by the applicant and his brother. The applicant was found hiding under a bed in one of the bedrooms and in an adjoining room police located a sawn off double barrelled shotgun hidden under a bed. The shotgun was loaded with two rounds. The applicant was arrested and during the course of a subsequent interview admitted ownership of the shotgun but denied involvement in or any knowledge of the armed robbery offences described above.

126 Examination of the shotgun revealed that it was in a dangerous state in that it might easily have discharged accidentally, killing or maiming people in the line of fire.

127 The maximum penalty for the offence of possessing an unlicensed firearm is 12 months' imprisonment. His Honour imposed the sentence of 3 months' imprisonment.

128 As the sentencing Judge observed the cumulative total of the sentences for all 33 offences came to 58 years and 1 month with fines totalling $1,700. His Honour then said:

"Having regard to the totality principle, I shall structure the sentences of imprisonment in this way:

The sentences of 5 years' imprisonment imposed in respect of the offences of burglary of a habitation are to be concurrent with one another, but cumulative on the sentence of 8 years' imprisonment in respect of the offence of armed robbery in company the subject of count 6 in the indictment. The sentences on the counts of threat to injure are to be concurrent with one another but cumulative upon the sentence in respect of the offence of armed robbery in company and the offences of burglary of a habitation. The sentences of imprisonment on all other counts are to be concurrent with one another and with the other sentences imposed today."

129 Mr Young, who appeared for the applicant, had no complaint about the individual sentences or the aggregate of 8 years imposed with respect to the counts on the indictment. His complaint was that 7 years in the aggregate for the charges on the s 32 Notice was manifestly excessive in itself and contained sentences which individually were manifestly excessive. He further complained that it was wrong to order the aggregate of 7 years to be served cumulatively upon the aggregate of 8 years for the indictment offences.

130 The main complaint concerning the individual sentences was about the sentences imposed on the burglary charges. Mr Young referred to a number of cases in which much lesser sentences had been imposed for burglaries just as serious as these burglaries and it was his submission that a term of 5 years for simple burglary of a habitation is practically unprecedented. As he observed, prior to the case of R v Pezzino [1997] 92 A Crim R 135, the offence of breaking and entering with intent involving the theft of property to a value of less than $10,000 attracted a range of sentences commonly between 12 and 18 months. In none of the burglaries in question in this case was the property stolen valued at anything like $10,000.

131 Whilst in Pezzino this Court held that the time had come to "firm up" sentences of burglary of a habitat, owing to the prevalence of the particular offence, I think it must be accepted that there have been many cases decided since Pezzino in which on a plea of guilty the penalty for burglary (even aggravated burglary) has been much less than 5 years'. Some of these cases are Rose v The Queen [2000] WASCA 238 - 18 months for a single burglary; Fisher v The Queen [1999] WASCA 122 - 2 years for a single burglary; Moro v The Queen [2001] WASCA 44 - 2 years for an aggravated burglary the circumstance of aggravation being that the householders were asleep in the house at the time of the robbery; Scott and Massey v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999 - 31/2 years for aggravated burglary the circumstance of aggravation being that the offenders did violence to the occupant; Williams v The Queen, unreported; CCA SCt of WA; Library No 930045; 2 February 1993 - 18 months for aggravated burglary the circumstance of aggravation being that the offender did violence to the occupant.

132 In Dixon v Scott [2002] WASCA 280 a sentence of 2 years imprisonment for burglary was imposed in the Court of Petty Sessions to be served cumulatively on a current sentence of 18 months for other offences. The sentence for burglary was reduced to 18 months on appeal to this Court. In Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997 an aggregate sentence of 4 years' imprisonment for three burglaries was reduced on appeal to 2 years.

133 I think it must be accepted that the range of sentences in these cases do not reveal in fact any significant firming up; and it is true that the concept of equal punishment and consistency in sentencing has a significant role to play in the sentencing process, generally speaking. This is the foundation for Mr Young's submission that we should hold that sentences of 5 years' imprisonment for each of these burglaries was manifestly excessive. It is a very understandable submission in light of sentencing patterns. However, what must not be lost sight of is that in 1996 Parliament increased the maximum penalty for burglary from 14 years to 18 years. The object in doing so was to bring about an increase in the sentences being imposed for this crime due to its prevalence and the considerable community concern arising from that prevalence. Whilst the burglary offences committed by the applicant were not in the worst category, if regard is had to the amount of property stolen and the level of professionalism (or lack of it) involved, still they were serious burglaries of the very kind which have become so prevalent; that is forced entry by damaging windows and the like, followed by a thorough search of the premises, involving rummaging through bedrooms, cupboards and drawers and the taking of everything of value which could easily be carried away. It seems to me impossible to say that a sentence of 5 years' imprisonment against a maximum of 18 years is manifestly excessive even although it may be significantly higher than sentences imposed in like cases hitherto. I would like to repeat what I said in Heferen v The Queen [1999] WASCA 81 at 13:

"I do not consider it is open to the courts now to regard home burglaries as anything but very serious offences. The courts in this State have recognised for sometime now that the offence has become prevalent and is causing considerable community concern. Quite apart from that, which would itself be a reason for the courts to continue to firm up sentences in home burglary cases, parliament has recently singled out the offence for special treatment. Prior to 1996 the maximum penalty for burglary was 14 years' imprisonment. In 1996 amendments were made which increased the maximum penalty for domestic burglaries by 28.5 per cent from 14 years to 18 years. It is of course the duty of the courts to give effect to the policy behind this change."

134 The other main complaint of the applicant is that the sentence he received for the offences of threat to injure (2 years on each count) "was clearly outside the range of an appropriate discretion". Mr Young pointed out that as the Judge had expressly allowed a discount of 25 per cent for the plea of guilty with respect to all the s 32 Notice offences, a sentence of 2 years' imprisonment indicated a starting point of 32 months which he said was far too close to the maximum of 36 months.

135 Whilst recognising the force of Mr Young's submission, in my opinion his Honour was entitled to regard these two offences as nearly at the top of the range. The threats were made to the occupants of a house which the applicant had recently burgled and it was for the purpose of intimidating the occupants in order that they would not continue with their complaint to the police. The threats were extremely serious in themselves involving in the first instance the wielding of a knife in order to terrorise and in the second instance, coming onto the premises in company with another and pretending to be about to carry out the threat of doing serious personal harm. A sentence approaching the maximum before taking account of mitigatory features such as a plea of guilty could not be said to be a wrong exercise of discretion.

136 I come now to the other aspect of Mr Young's submissions, which is that having regard for the totality principle an aggregate sentence of 7 years' imprisonment for the whole of the episode of offending contained in the s 32 Notice is manifestly excessive.

137 I think this submission involves a misconception. There was in reality no separate sentencing exercise undertaken in respect to the group of offences on the s 32 Notice. Although they were separately mentioned as a group of offences attracting an aggregate of 7 years' imprisonment this was a single sentencing exercise with respect to all of the offences. The only relevant aggregate for totality purposes is the final outcome, that is, 15 years.

138 Mr Young complained that, overall, 15 years is just too long. He relied on what was said obiter in Jarvis v The Queen (1998) 20 WAR 201 at 207 (per Ipp J) and at 213 (per Murray J) to the effect that "the severity of a term of imprisonment increases exponentially as it increases in length".

139 In Ricciardello v The Queen [2001] WASCA 416 I said that I did not consider it to be the law in Western Australia that Judges are obliged to approach sentencing on the basis that the severity of sentences increases "exponentially" with their length. As the Chief Justice's researches have revealed, a large number of judgments in this State contain statements approving of the theory of exponentiality, if I might call it that, and I acknowledge that there is now at least one text book which lends support to it. In Fox and Frieberg, "Sentencing" (2nd ed 1999) at 727 the authors refer uncritically to what they describe as the "argument" that the "severity of sentence is an exponential, not a lineal function". However, I do not think it is a rule of sentencing law. It is merely a postulation (or as Fox and Frieberg put it an "argument") as to the logical basis for the rule of sentencing law in question, namely, the principle of totality. Because it is but an idea, albeit it seems widely accepted in this Court, I think I remain free to express opposition to it without offending the doctrine of stare decisis. My opposition to the idea is that it seems to me to be little more than a statement of subjective opinion unsupported by research and at odds with the explanation given for the principle of totality in other cases of long standing in this Court (to which I will refer in a moment) and because it seems to me to be not in harmony with the conventional wisdom that the hardest part of the sentence for the prisoner to bear is the early part.

140 In my opinion, the touchstone of the totality principle is proportionality. This is fully explained in R v Holder and Johnston [1983] 13 A Crim R 375 in the well-known passage from the judgment of Street CJ at 389:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding-up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order."

141 It was put even more simply by Badgery-Parker J in R v Larsen [1989] 44 A Crim R 121 at 125 when that Judge said:

"The totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with."

142 In Mill v The Queen (1988) 166 CLR 59 the High Court said this of the totality principle at 62 - 63:

"The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing 2nd ed (1979) pp 56 - 57, as follows (omitting references):

'The effect of the totality principle is to require a sentencer who has passed a serious 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'. The principle has been stated many times in various forms: 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.'; 'When ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowing the individual sentence below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

143 There is no hint of the concept of exponentiality in these authorative pronouncements. See also R v Todd [1982] 2 NSWLR 517 at 519-520 where Street CJ observed that it was probably not possible to lay down the general principle any more specifically than in such terms.

144 For myself I do not see the need to search for explanations beyond the explanations given above but if further explanation is required I prefer to say that the reason why a person does not get 16 years for two crimes each worth eight years is that by the time that person has served the first sentence all of the recognised sentencing objectives (protection of the public, deterrence, punishment, retribution, reformation, public denunciation, and so on) will have been achieved for the most part, leaving no purpose in requiring the person to serve another full eight years for the second crime. A case which clearly reveals this to be the logical basis for the principle of totality is Magee v The Queen (1980) WAR 117. The offender had committed two acts of rape 16 days apart. He was sentenced to 7 years' imprisonment in respect to the first and 8 years' imprisonment in respect to the second and an order for cumulation was made resulting in an aggregate term of 15 years with a minimum of 10 years. The Court of Criminal Appeal (Burt CJ, Wickham and Wallace JJ) held that whilst each of the sentences of 7 years and 8 years respectively, when considered separately, was correct, when added together the result was too long. Wickham J (with whose judgment Burt CJ and Wallace J agreed) said at 119:

"[it] in my opinion is longer than is necessary to meet the various purposes of criminal punishment - retribution, deterrence and reformation. A custodial term which is longer than is necessary is too long and is not in the public interest. In addition to the matter of public expense, one of the purposes of sentencing might be frustrated in that the offender might come out of prison worse than he went in and thus be more likely rather than less likely to be a continuing community problem. I have many times repeated in one form or another what I said on 19 March 1973 in Thomson v R (CCA No 45 of 1972, unreported) and I repeat it yet again:

'In the area of sentencing, enough to meet all the various considerations is enough. More than enough is wrong because the excess is not only purposeless but might be harmful ... the problem does not involve questions of leniency or severity, or any other abstract notion, but a hard headed attempt to work out a sentence which in all its aspects is most likely in the long run to afford the greatest public benefit and protection by offering the best hope that the criminal will not offend in a similar way again and that others will be deterred from so offending.' "

145 I take this to mean that an aggregate sentence arrived at by totting up the individual sentences invariably will be too long not because of abstract notions of exponentiality but because the quantity of years in the sentence is more than is fairly necessary to achieve the purposes of punishment.

146 The same ideas emerge in the judgments of Street CJ and Moffitt P in R v Todd [1982] 2 NSWLR 517 especially at 519 and 521 - 522. Street CJ in particular made it clear that in considering the length of the second sentence, "fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence...".

147 So far as I am aware Magee v The Queen (supra) has never been disapproved let alone overruled. In itself it represents a restatement of principles which can be traced back in time to at least 1973 in the judgment of this Court in Thomson v The Queen, unreported; CCA SCt of WA; 19 March 1973.

148 I would add that my preference for this as the main rationale of the principle of totality was stated and explained in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 with which judgment Pidgeon and Ipp JJ expressed their unqualified agreement.

149 So in my respectful opinion the only question is whether a total aggregate sentence of 15 years' imprisonment is disproportionate in its length to the overall criminality in the 33 offences for which the applicant comes to be punished.

150 Mr Young submitted that it was wrong to make the sentences on the indictment offences cumulative upon the sentences with respect to the s 32 Notice offences. This submission involves the misconception to which I have already referred. It invites us to view the case as if the sentences with respect to the offences on the indictment were being passed in a sentencing exercise separate from the sentencing on the s 32 Notice. Mr Young submitted that we should view the case in that way and review the sentences with the principle in cases such as Wegner v The Queen [1999] WASCA 26 in mind, the principle being that when a second sentencing court is dealing with a prisoner who is already serving a term of imprisonment the second sentence must usually be adjusted downwards. The second sentencing court, having arrived at an appropriate aggregate sentence for the crimes which are before it, will usually reduce that sentence where the prisoner is already serving a sentence on which the second sentence must be cumulative. It is a well established principle which was extensively discussed in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 and in Mill (supra). It is, however, but a particular application of the totality principle. The object is to achieve proportionality between the total of the first and second sentences and the total of the criminality involved in all the offences.

151 This is an aspect of the totality principle which does not come into consideration in this case. White AUJ was not acting as a second sentencing court. He was sentencing for all of the offences as a single exercise and in so doing he did what the totality principle obliged him to do. He judged the criminality involved in the whole of the applicant's offending and he adjusted the aggregate of the 33 sentences which it was his duty to impose. There was no obligation upon him to do any more than he did. The aggregate sentence of 15 years was arrived at on the Judge's evaluation of the overall criminality involved in all 33 offences.

152 As I have already said, the question is whether the downward adjustment which he made was sufficient - more accurately, whether it produced a sentence which was disproportionate to the applicant's criminality viewed as a whole. Undoubtedly it is a lengthy sentence from any point of view but I am not persuaded that it is manifestly excessive. There were two armed robberies for which the maximum penalty in each case was life imprisonment. There were four offences of stealing, each carrying a maximum sentence of 7 years' imprisonment. There was an offence of receiving stolen property carrying a maximum penalty of 14 years' imprisonment. There were seven offences of fraud each carrying a maximum penalty of 7 years' imprisonment. There were four offences of burglary each carrying a maximum penalty of 18 years' imprisonment. There were two threats to injure each carrying a maximum penalty of 3 years' imprisonment. In addition, there were sundry other offences some of them not much less serious. The possession of the loaded unlicensed shotgun carried a maximum penalty of 12 months' imprisonment. The offence of assault carried a maximum penalty of 18 months' imprisonment and possession of amphetamines carried a maximum penalty of 2 years' imprisonment. Many of these offences were committed while the applicant was on bail. I think this is sufficient to show that an aggregate term of 15 years cannot be described as manifestly excessive or beyond the exercise of a sound sentencing discretion.

153 Finally, I come to Mr Young's submission that because many of the charges that were on the s 32 Notice might have been dealt with by way of summary conviction in the Court of Petty Sessions whereupon the applicable maximum penalties would have been much less, it is the lesser maximums that fall to be considered in reviewing the severity the sentences passed by White AUJ. I cannot accept this submission. By s 33(3) of the Sentencing Act it is provided that:

"A sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment."

154 That section seems to me to preclude this Court from taking any other approach than that the correctness of the sentences passed by White AUJ is to be judged as if those sentences had been imposed following conviction on indictment.

155 Mr Young argued that this approach is calculated to subvert the policy considerations underlying s 32 in as much as it must work as a disincentive. Offenders are unlikely to use the s 32 procedures to have charges pending in the Court of Petty Sessions and which may be dealt with on summary conviction brought before the superior courts for fear that they will receive much greater sentences in the superior courts than if the charges had remained in the Court of Petty Sessions. These same arguments were advanced in Rafferty v The Queen [2002] WASCA 312 and were rejected by this Court for reasons explained by Murray J at [18].

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

157 MILLER J: On 15 May 2002 the applicant was convicted by a jury of the crime of armed robbery in company. That day he pleaded guilty to further indictable offences, being robbery whilst armed and possession of a firearm which had been altered from the design of its original manufacture. On 17 June 2002 the applicant pleaded guilty to a further 30 offences pursuant to the provisions of s 32 of the Sentencing Act 1995. These offences had been committed during the period September 2000 - April 2001. The indictable offences had been committed between 14 and 31 May 2001.

158 The pleas were dealt with by White AUJ who, on 21 June 2002, sentenced the applicant to an effective term of imprisonment of 15 years, with an order for eligibility for parole. The sentences were backdated to commence from 31 May 2001. In addition to the sentences of imprisonment there were fines totalling $1700.

159 The longest terms of imprisonment imposed by the learned trial Judge were for armed robbery in company (8 years), armed robbery (6 years), burglary of a habitation (5 years on each of four counts), stealing (3 years), fraud (2 years on each of six counts) and offences of threat to injure (2 years on each of two counts). The sentences of 5 years' imprisonment imposed in respect of each of the four offences of burglary of a habitation were ordered to be served concurrently with each other, but cumulatively on the sentence of 8 years imposed for armed robbery in company. The sentences in relation to the offences of threatening to

injure were ordered to be served concurrently with each other but cumulatively on the sentence in respect of the offence of armed robbery in company and the offences of burglary of a habitation. All other sentences were ordered to be served concurrently with each other and with the sentences imposed for those that I have just mentioned. This led to the result of an effective 15-year term.

160 The applicant seeks leave to appeal against sentence on two grounds. The first is that the sentence of 5 years' imprisonment imposed for each of the four burglary offences was manifestly excessive and the second that the sentences imposed for the offences of burglary and threatening to injure should not have been made cumulative on each other and on the sentence imposed for armed robbery in company. Particulars in relation to these grounds assert (inter alia) that the circumstances of the offences of burglary of a habitation were not of the upper end of the scale; there had been no conviction for burglary since 1996; there had been a plea of guilty in relation to the offences; and the applicant had youth on his side. Particulars in relation to the second ground contend that a total sentence of 7 years' imprisonment for the offences the subject of the s 32 notice was manifestly excessive for the reasons outlined in relation to the first ground; the imposition of a sentence of 7 years' imprisonment cumulative on the 8 years for armed robbery in company was contrary to the totality principle; there was no apparent reduction in the sentences imposed on the s 32 notice for the plea of guilty; and the learned trial Judge erred in sentencing the applicant for the s 32 offences by having regard to the maximum as if the applicant were convicted of indictment, rather than as if he were convicted summarily.

161 The learned trial Judge prepared detailed sentencing remarks. These were reduced to writing and covered some 16 pages of typed script. They were furnished to the applicant at the time of sentencing in order that he could understand the structure of the sentences which had been imposed.

162 The sentencing comments set out in considerable detail the facts of the various matters in relation to which there had been either a conviction or plea of guilty. The Crown prosecutor's statement of facts was reproduced and in itself comprises some 10 pages. It is unnecessary that all these facts should be repeated and it is sufficient to make reference only to the facts of the more serious offences.

163 The offence of armed robbery in company involved the applicant acting as lookout for his brother who entered a Caltex service station armed with a rifle. He held up and robbed the owner of the service station shop (where there was an assistant present) and ran off accompanied by the applicant. For this offence a term of 8 years' imprisonment was imposed, which is within the middle of the range of sentences commonly imposed for the offence of armed robbery in company before mitigating circumstances are taken into account. Although the applicant acted as lookout and was not the person who entered the Caltex service station with the rifle, the applicant had pleaded not guilty to the offence and had clearly been aware of the fact that his brother was, at the time of entering the Caltex service station, armed with a rifle.

164 It cannot be said that the sentence imposed was outside the range of sentences that could have been imposed by the learned trial Judge, particularly as this Court has said in cases of armed robbery in company, greater weight should be given to the requirement of deterrence and less to antecedents and other matters personal to the offender unless there are exceptional circumstances: Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521. The Chief Justice made a particular point (at 521) that in the case in question, the victims were "both persons in a vulnerable position in endeavouring to provide a service to the community at night". Although it is not clear from the learned trial Judge's sentencing comments whether this offence occurred at night, the point to be made is that those who operate service stations and shops associated with service stations, provide a service to the community at all hours and are entitled to the protection of the law to the point where armed robberies in company (particularly associated with the use of a firearm) should result in severe deterrent sentences. This was such a sentence, and in my view, standing alone it cannot be said that it was excessive.

165 The count of armed robbery committed by the applicant without any co-offender was also a serious one. There, the applicant entered a pharmacy on a Monday morning at 11.30am armed with a sawn-off shotgun with which he proceeded to threaten the pharmacy assistant and order customers to lie on the floor whilst money was taken. There were several women in the store, one of whom had a child in a pram. During the course of the robbery the applicant informed the pharmacist that the shotgun was loaded and operated the mechanism to suggest that it was being cocked. The weapon was pointed directly at the pharmacist. In relation to this offence the learned trial Judge imposed a sentence of 6 years' imprisonment, which was, in all the circumstances of the case, a lenient sentence. It had no doubt reflected the fact that the applicant had pleaded guilty to this particular offence. Under no circumstances could it be said of itself to have been an excessive sentence.

166 The burglary offences involved the burglary of places of habitation. The offences occurred successively on 27 March, 30 March, 1 April and 3 April 2001 and the modus operandi was similar in each case. In relation to the first offence the applicant smashed a sliding kitchen window of a house in Wanneroo, entered the house, rummaged through all rooms and cupboards and stole property to the value of $465. In relation to the second, the applicant forced a bedroom window of a house in Wanneroo and once inside the house stole a watch, jewellery and cash to a total value of $1225. The third offence was in the same area. On this occasion the applicant got into the house through the main bedroom window and once inside, rummaged through drawers and rooms before leaving with jewellery to a total value of $5000. The fourth offence occurred in Currambine where the applicant again entered a bedroom and once inside the house stole a Myers card and four cheques.

167 All offences of burglary of a habitation were offences against s 401(2)(b) of the Criminal Code, which provides that any person who commits an offence in the place of another when in that place without that other person's consent, is guilty of a crime and liable if the place is ordinarily used for human habitation (but the offence is not committed in circumstances of aggravation), to imprisonment of 18 years. The penalty of 18 years was written into the section in 1996 in what was a clear intention on the part of Parliament to increase substantially the penalties for burglaries of ordinary residential homes.

168 Burglary generally has been an offence for which sentences have been firmed up in recognition of the prevalence of the offence and the wide community concern about that prevalence. Less than four years ago, in R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159, Malcolm CJ (at 160) stressed the community concern about the prevalence of burglary and the need for a firming up of penalties. His Honour said:

"The courts in this State have taken the view for some considerable period that the offence of burglary is a serious offence, the prevalence of which has been the subject of considerable community concern. In a number of cases the court has held that the range of sentences imposed for burglary offences when they are committed on people's homes, particularly when persons are present at the time when the offences are committed, should be firmed up: Pezzino (1997) 92 A Crim R 135 per Franklyn J at 138; and per White J at 148; Nguyen and Tran [1999] WASCA 54 per Kennedy J at [11]; and Heferen [1999] WASCA 81; (1999) 106 A Crim R 89 at 97-98 [35] per Anderson J.

Parliament recently singled out the offence for special treatment by increasing the maximum penalties for domestic burglaries in 1996. It is necessary that courts give effect to the reasons for these changes: see Peterson [1984] WAR 329; (1983) 11 A Crim R 164 per Burt CJ at 334; 169."

169 In the same case, Malcolm CJ pointed out the requirement that generally speaking, unless the totality principle requires otherwise, cumulative sentences would be imposed for separate and distinct offences of the type committed here by the applicant. His Honour said (at 160- 161):

"The respondent is extremely fortunate to have been given such light sentences for these offences. Both of them were of an aggravated kind. They were, however, committed almost a year apart. While it is appropriate to order that a number of offences arise out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively: Ruane (1979) 1 A Crim R 284 per Wallace J at 286; Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; and Van Thong Dao (unreported, Court of Criminal Appeal, WA, No 106 of 1998, 22 January 1999) per Murray J at pp 15-16."

170 The offence of stealing within houses ordinarily used for human habitation (burglary of dwellings), is certainly at epidemic proportions in Western Australia. The Western Australian Police Service report on "Reported Crime in Western Australia 2002 Calendar Year (January 2003)" reveals that there were 40,749 residential burglaries reported in the year 2002. This was an increase of 1.4 per cent compared with 2001 (40,196) although a decrease of 1.4 per cent when compared with 2000 (41,313). Unfortunately, the "clearance rate" for the year 2002 was only 14.9 per cent. It represented an increase over 2001 (13.9 per cent) and over 2000 (13.4 per cent) but it is on any view of it, a very low clearance rate. Further, the Report reveals that the offence of burglary of a dwelling was second only to the offence of theft as the most commonly committed offence during 2002. There were 97,456 instances of theft.

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.

172 The offences of threatening to injure were punishable by a maximum term of imprisonment of 7 years (s 338(b) of the Criminal Code). They were serious offences which involved threats to injure the occupants of houses which had been burgled by the applicant and in circumstances where he produced a knife and threatened to stab those persons unless they withdrew the accusations that had been made against the applicant. The sentence of 2 years' imprisonment in relation to each such offence was well within the range of sentences open to the learned trial Judge.

173 For the offence of stealing for which the applicant was sentenced to 3 years' imprisonment (which was not a cumulative sentence), the facts revealed that the applicant had stolen from the glovebox of a locked vehicle a cheque book containing three blank cheques. Subsequently, in relation to matters the subject of charges of fraud, the applicant had presented these cheques for payment receiving $860 on two separate occasions and attempting to obtain a further $860 on the third occasion. In these circumstances the sentence seems to me to have been entirely appropriate.

174 It is unnecessary to refer in detail to the offences of fraud (in relation to which 2 years' imprisonment on each count to be served concurrently was generally imposed), and numerous other offences in which sentences of imprisonment of 1 year or less were imposed.

175 The question which then arises is whether the sentence offended the totality principle. This principle was explained in Jarvis v The Queen (1998) 20 WAR 201 and in simple terms it is that the Court must look at the totality of the criminal behaviour committed by an offender and ask itself what is the appropriate sentence for all the offences (see particularly Jarvis v The Queen per Murray J at 211). Another way of putting it is that the Court should take "a last look" at the total imprisonment imposed to ensure that the sentence is not crushing and is proportionate to the degree of criminality involved (see Jarvis v The Queen (supra) per Ipp J at 206).

176 In my view the learned trial Judge carefully structured the sentence ultimately imposed upon the applicant and took into account all relevant matters. Although counsel for the applicant complains that pleas of guilty in relation to the s 32 notices were not specifically taken into account, it seems to me that they clearly were. The learned trial Judge made reference to a 25 per cent discount for the plea of guilty in relation to all matters where there had been a plea of guilty. These included the offences which were the subject of the s 32 notice. Further, his Honour made specific reference to "the totality principle" in structuring the sentences of imprisonment as he did.

177 I am of the opinion that the learned trial Judge rightly described the totality of the applicant's criminal conduct as an "appalling catalogue of criminal acts". I consider an effective sentence of 15 years' imprisonment to have been entirely within the exercise of a sound discretion and one in respect of which this Court should recognise the peculiar discretion which resided in the learned trial Judge. It was put by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 2 as follows:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

178 For these reasons I would grant leave to appeal but dismiss the appeal.