Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Totality principle

Appellant : N R Barber Legal Barristers & Solicitors

Ho v The State of Western Australia [2011] WASCA 108

Morris v The State of Western Australia [2011] WASCA 47

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

Roffey v The State of Western Australia [2007] WASCA 246

2 MAZZA JA: The appellant seeks an extension of time within which to appeal and leave to appeal against sentence. The appellant was convicted after trial of three offences, being:

(a) making a threat with intent to cause a detriment (count 2);

(b) unlawful damage to a motor vehicle (count 3); and

3 He was acquitted by the jury of a charge of doing grievous bodily harm (count 1). Counts 2 and 3 occurred at Nannup on 18 May 2011, while count 4 occurred at Palmyra on 5 June 2011.

4 On 22 February 2013, the appellant was sentenced to 12 months' imprisonment for each of counts 2 and 3, to be served concurrently, and 3 years 6 months' imprisonment for count 4. The learned sentencing judge ordered that the sentence for count 4 be served cumulatively on the other sentences. Thus, the appellant received a total effective sentence of 4 years 6 months' imprisonment. He was made eligible for parole.

5 The appellant does not complain about the length of the individual sentences. His sole ground of appeal alleges that the total effective sentence infringed the totality principle.

6 The appeal notice was filed approximately two months out of time. The appellant has filed an affidavit sworn 16 May 2013 by his solicitor, Dr Neville Barber, explaining the delay. I will consider the merits of the proposed ground of appeal before deciding whether to grant the application for an extension of time.

7 The appellant's sister was in a relationship with the victim, Andrew Juniper. They lived together in Nannup. Mr Juniper had some serious personal problems. The appellant disapproved of the relationship and harboured strong feelings of animosity towards Mr Juniper, whom he believed was after his sister's money. A Volkswagen van was purchased for $4,600 and registered in Mr Juniper's name. The appellant understood that his sister had paid for the van and he believed that it should be registered in her name.

8 On 18 May 2011, the appellant drove from Perth to Nannup in company with his father, Michael Edmonds. On the drive down to Nannup, the appellant stopped at a post office and obtained a motor vehicle transfer form. Shortly after his arrival, the appellant threatened Mr Juniper that if he did not transfer the van to the appellant's sister, Mr Juniper would get 'a flogging' (count 2). A fight ensued after the appellant's threat, in which Mr Juniper was seriously injured. It was this incident which gave rise to the charge of grievous bodily harm for which the appellant was acquitted. In order to escape further injury, Mr Juniper locked himself in the vehicle. The appellant got a long, African hardwood spoon and smashed one of the vehicle's windows (count 3).

9 On 5 June 2011, Mr Juniper was at a house in Palmyra in which his 75 -year-old mother was staying, along with Mr Juniper's brother and his brother's son, who was then aged four years. At around 8.00 pm, the appellant forced his way into the house by smashing the lounge room window. He was armed with a wooden pole. He assaulted both Mr Juniper and Mr Juniper's brother, doing bodily harm to each of them. The victim impact statements of the adult occupants of the house show how terrifying this offence was for them.

10 The appellant was 32 years of age at the time of sentencing. He had a happy childhood and had, since leaving school, been regularly employed in a variety of occupations. He has some history of alcohol abuse.

11 The appellant has a brief traffic record but no prior convictions for offences of violence. It is clear from the psychological report that was tendered to his Honour that the appellant had a deep-seated disapproval of the victim and felt that his actions were completely justified. He told the psychologist that he would behave in the same way again if confronted with similar circumstances. There is nothing which would indicate that the appellant is in any way remorseful for his actions or has any victim empathy.

12 The learned sentencing judge had the advantage of having presided over the trial. It is clear that his Honour regarded the appellant's overall offending behaviour, particularly the aggravated burglary, as serious. He described the aggravated burglary as a 'savage invasion' and 'a serious example of aggravated burglary'. He placed particular emphasis on personal and general deterrence. He referred to the totality principle. He said that he reduced the sentence for the aggravated burglary from 4 years' imprisonment to 3 years 6 months' imprisonment because of totality considerations. In doing so, he said that a total effective sentence of 5 years' imprisonment would have been 'disproportionate to the overall criminality and, perhaps even crushing'.

13 The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally. The second limb, is that the court should not impose a crushing sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25] (McLure JA).

14 Three points were made on behalf of the appellant in the written and oral submissions.

15 First, that although the Nannup and Palmyra incidents were separated by time and place, they could be viewed as one transaction because they involved the same complainant. The second point is that his Honour did not take into account that the appellant had no prior convictions for violence. Third, that there is little practical difference between a total effective sentence of 5 years' imprisonment and 4 years 6 months' imprisonment. If his Honour considered that the total effective sentence of 5 years' imprisonment infringed the totality principle, then a total effective sentence of 4 years 6 months' imprisonment also infringed it.

17 The one transaction rule, as described in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28], is a rule of thumb only, to the effect that wholly concurrent sentences may well be imposed in respect of multiple offences which occur in a continuing episode of offending. However, wholly concurrent sentences may not reflect the total criminality of the offending and may not be appropriate. Put another way, the so-called rule may be displaced by considerations of totality: Morris v The State of Western Australia [2011] WASCA 47 [10] and Ho v The State of Western Australia [2011] WASCA 108 [16].

18 I do not regard the offences committed by the appellant as being a continuing episode of offending. They were separate and distinct. The aggravated burglary involved not just Mr Juniper, but other victims. Having regard to all of what the appellant did, both in Nannup and Palmyra, wholly concurrent sentences would not have properly reflected his total criminality and would not have been appropriate.

19 Contrary to counsel's submissions, his Honour had express regard to the absence of convictions for violence. Shortly after noting that the appellant's record was 'limited' to traffic matters, his Honour said:

[T]here are no convictions for violence in the past (ts 424).

20 I turn to the point about his Honour's remark that a total effective sentence of 5 years' imprisonment would have been 'disproportionate to the overall criminality and, perhaps even crushing'. An allegation that a total effective sentence infringes the totality principle is an allegation of implied, not express, error. The focus of an appellate court when such an allegation is made is upon the total effective sentence that was actually imposed. The court's task is to then decide whether, having regard to all of the circumstances, it infringes the totality principle. His Honour's remark is irrelevant to this task.

21 It is not reasonably arguable that the total effective sentence of 4 years 6 months' imprisonment infringed the totality principle. The learned sentencing judge's characterisation of the appellant's overall offending, in particular the aggravated burglary, was correct and requires no further elaboration by me. It is behaviour which must be marked by a sentence that provides a strong element of general and personal deterrence. Apart from the appellant's limited record of offending, there was little to be said in mitigation. The appellant did not have the advantage of a plea of guilty. He was plainly not remorseful for what he had done. To the contrary, he believed his actions were justified. There is nothing to indicate that he had any insight into what he did and he had no victim empathy. There were two episodes of offending separated by time, place and circumstance. Cumulative sentences were required. The total effective sentence imposed upon the appellant was not disproportionate to the appellant's overall offending, taking into account all of the relevant circumstances, including those personal to him. The total effective sentence is in no way 'crushing' upon the appellant as that expression is properly understood.

22 The proposed ground of appeal has no reasonable prospect of succeeding. I would therefore refuse to grant an extension of time to appeal against sentence. The appeal must be dismissed.

1. Extension of time to appeal against sentence is refused.
2. The appeal is dismissed.