Criminal law - Sentencing - Parole - Order for part-cumulation - Effect of order on head sentence - Effect of order on non-parole period - Limits on extent of cumulation that may be ordered

Sentencing Act 1995 (WA), s 88(3)(d), s 88(4), s 93(1), s 94(3)

Hayward v The Queen [2000] WASCA 237

Jarvis v The Queen (1993) 20 WAR 201

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

Nevermann (1989) 43 A Crim R 347

R v Duff [1999] WASC 124

R v VC (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999

R v Ward [1999] WASCA 157

Taylor v The Queen, unreported; CCA SCt of WA; Library No 990091; 16 February

1 WALLWORK J: I agree with the reasons for judgment of Anderson J. There is nothing I wish to add.

2 ANDERSON J: This is an application for an extension of time for leave to appeal against sentence and for leave to appeal. We reserved our decision on the extension of time application and heard the application for leave to appeal on its merits.

3 The applicant was presented in the District Court before Williams DCJ on 11 September 2000 and pleaded guilty to a single charge of burglary committed on 27 May 1998, for which he was sentenced to 4 years' imprisonment with eligibility for parole. There was an order for part-cumulation of this sentence on a sentence which the applicant was already serving. On behalf of the applicant, it was submitted that the sentence of 4 years was, of itself, manifestly excessive. I am not persuaded of that. It was a bad case in that the applicant used a motor vehicle to ram his way through a perimeter security fence and, once through the fence, he smashed his way through the front door of the building with a concrete slab and then stole a large quantity of property - cigarettes - valued at $24,000. His culpability is to be measured in light of the fact that, the following day, he audaciously returned to the premises and made inquiries as to the price of the cigarettes, no doubt so as to strike for himself a price at which he could sell them on the street. None of the property nor any money has been recovered.

4 The applicant's antecedent report shows that, at the time of this offence, he had a record of 36 convictions for a range of offences, including burglary, receiving, stealing, disorderly conduct, escaping legal custody, being on a curtilage without lawful excuse, possessing house-breaking implements, resisting arrest, unlawful possession, assaulting public officer, possession of an offensive weapon, stealing motor vehicles and criminal damage. In July 1995, he was sentenced to four concurrent terms of 3 months' imprisonment. In August 1995, he was sentenced to 6 months' imprisonment. In December 1996, he was sentenced to an aggregate term of 2 years' imprisonment for six burglaries and one offence of criminal damage.

5 When he came to be sentenced for the offence presently under consideration, he was aged 22 years and had been offending regularly in the manner summarised above since the age of 13 - that is, for about nine years. Having regard for the violent nature of the burglary, the value of the property stolen and the applicant's antecedents, and having regard for

the maximum penalty of 14 years prescribed for the offence, it cannot be said that a sentence of 4 years was manifestly excessive.

6 On his behalf, two character references were presented which speak extremely well of the applicant with respect to the period of about 14 months between March 1999 and the date of sentence, from which the sentencing Judge could have taken the view that the applicant had begun to turn over a new leaf. This, undoubtedly, was a mitigatory factor of some significance, but I am not persuaded that the Judge did not make proper allowance for it. He referred to the references in his sentencing remarks, but he also said that the indications of progress towards rehabilitation which were reflected in the references had to be viewed in the light of other matters. He said, at AB 50(a):

"I have some difficulty in reconciling the [submission of] your counsel that you ... have turned your life around [with the fact that] you defended the matters in Bunbury and it appears you were convicted of those and in respect of this offence, it would seem to me a difficult proposition to defend it, based on the DNA evidence that was available. Nevertheless, the first time [which] the court has received advice in writing that you intended to plead guilty with respect to this matter was late last week.

In my view, you can't receive any credit for your change in plea. I am of the view that it was inevitable, based on the DNA evidence, that you would have been convicted but it is relevant to the proposition put by your counsel that you have changed your life around. I would have thought changing your life around would require some indication of remorse but you seem to have put this matter off until the last stage and when I queried your counsel in relation to that, she accepted that proposition."

7 The next question is whether an order for part-cumulation of the sentence of 4 years on a sentence which the applicant was already serving resulted in an overall sentence which was manifestly excessive.

8 The history as to the sentence which the applicant was already serving is that on 25 May 2000, following a three-day trial at Bunbury, the applicant was convicted of two counts of stealing a motor vehicle, one count of burglary, one count of aggravated burglary and one count of going armed in public so as to cause terror, the offences having been committed between 19 June 1998 and 7 August 1998 - most of them on 6 August 1998. On 9 June 2000, he was sentenced to 6 years'

imprisonment in respect of each count, to be served concurrently and he was made eligible for parole. There is no appeal pending against the individual sentences or the aggregate term of 6 years.

9 The burglary, the subject of the present application, was committed two or three months before the offences in respect of which the aggregate term of 6 years' imprisonment was imposed.

10 The application before us was argued by Ms Fisher on the basis that the effect of the sentence of 4 years with part-cumulation on the 6-year sentence is that the applicant is now serving an aggregate term of 8 years' imprisonment. I must say that I cannot see how this can be so. The only way that an effective order for part-cumulation can be made is in accordance with s 88(3)(d) and s 88(4) of the Sentencing Act 1995 (WA). The Court cannot make an order for part-cumulation that does not comply with those provisions. They require a sentencing Court which is seeking to make a second sentence partly cumulative on a first sentence to order that the second sentence be partly cumulative on the first sentence to the extent that it is to commence either after a specified period of the first sentence has been served, or on a particular date. In either case, the commencement date which is stipulated for the second sentence must not fall outside the non-parole period of the first sentence if the first sentence is a parole term. As a 6-year parole term has a non-parole period of only 2 years and as part-cumulation cannot be ordered to the extent that the second sentence commences after the expiration of the non-parole period (s 88(4)), a sentence of 4 years partly cumulative on 6 years surely can never produce more than a 6-year aggregate.

11 In my respectful opinion, this is, in the end, what the Judge, in fact, did, although perhaps he might not have started out to do it. What he said was (AB 52C - E):

" ... In my view, taking into account everything I have said, an appropriate sentence in respect of this offence is a sentence of imprisonment of 4 years.

I do, however, take into account the totality principle. I am of the view that that requires the sentence to be served partly concurrently and partly cumulatively on the term of imprisonment you're presently serving. In my view half or 2 years of the sentence should be served concurrently with the term that you are presently serving and half or 2 years should be served cumulatively. I arrive at those figures because I am of the view that if all of those matters had been dealt with at the same time then the increase in sentence would be probably 2 years.

Your earliest eligibility date for release is 19 April 2002. I direct that the partly cumulative term will commence from that date or, in the event of some other date being your earliest date for release, then from that date. I direct that you are eligible for parole."

12 The first part of these remarks reveal what I would regard, with respect, as a misconception as to the effect of the relevant provisions of the Sentencing Act. If, in passing the second sentence, the Judge had intended to produce an aggregate sentence of 8 years for the totality of the offending, then he would have had to order the 4-year sentence, that is, the second sentence, to commence after 4 years of the 6-year term had been served. Only by this means could a further 2 years be added to the 6 years. However, there is no authority to make such an order, as I have tried to explain, because no partly cumulative term can be ordered to commence after the expiration of the non-parole period of the first sentence. But this can be put to one side for the present because it is the last part of the quoted passage which is the operative order and it is clear enough. It is a clear order for part-cumulation in accordance with s 88(3)(d) and s 88(4) of the Sentencing Act. Obviously, the phrase "the partly cumulative term" in the order refers to the 4-year sentence. It is that term (4 years) which was to be served partly cumulatively on the 6 years, and so it is that term which is to commence after 2 years of the 6 years had been served. The order cannot mean anything else. This does not result in an aggregate of 8 years. The whole of the 4 years will run concurrently with the last 4 years of the 6 years; that is, an aggregate, still, of 6 years.

13 Ms Fisher referred us to the case of R v Duff [1999] WASC 124, a judgment of the Chief Justice delivered on 10 June 1999, in support of her contention that the order made by the Judge below had the effect of extending the aggregate term from 6 years to 8 years, but I do not see anything in Duff which would support that submission.

14 It seems to me therefore that the applicant has not received an aggregate sentence of 8 years' imprisonment and, to the extent that the application is based upon a contention that 8 years is manifestly excessive, the application fails in limine.

15 There remains the question whether an order for part-cumulation may have the effect of extending the overall non-parole period even when it does not extend the head sentence. This depends on a construction of, inter alia, s 94(3) of the Sentencing Act. It is, to my mind, a difficult question on which we heard no argument and it must be left for another day, perhaps in an application to the sentencing Judge under s 37 of the Sentencing Act 1995. Amongst other things, it may raise the question whether it is proper for courts in Western Australia, which have no authority to set minimum terms, to mould head sentences either at first instance or on appeal with an eye to the length of the non-parole periods laid down in s 93(1). This, too, may be a difficult question on which we heard no argument.

16 I would grant the extension of time and grant leave to appeal, but dismiss the appeal.

17 STEYTLER J: I have had the opportunity of reading the reasons for decision of Anderson J. I agree with them. I would only add that it seems to me, in any event, that, having regard for the totality of the applicant's offending, the total sentence of imprisonment imposed upon him could not be said to be manifestly excessive.

18 The offences committed by the applicant, the subject of his 6 year term of imprisonment, were serious, involving a count of aggravated burglary, one of going armed in public so as to cause terror, one of burglary and two counts of stealing a motor vehicle. As Anderson J has said, the offence in respect of which the partly cumulative term of imprisonment was imposed was also serious, involving, as it did, the use of a motor vehicle to smash a perimeter security fence, the smashing of the front door of the building with a concrete slab and the stealing of property valued at $24,000. In those circumstances the partial cumulation of the 4-year term of imprisonment upon the 6-year term already imposed could not, in my opinion, be said to be outside the reasonable range of the trial Judge's discretion.

19 I would consequently also grant the extension of time and grant leave to appeal but dismiss the appeal.