Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Multiple offences - Whether total sentence infringed the totality principle - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Jarvis v The Queen (1993) 20 WAR 201

Martino v State of Western Australia [2006] WASCA 78

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Woods v The Queen (1994) 14 WAR 341

Chua v The Queen [2001] WASCA 353

Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343

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

Kay v The Queen [2004] WASCA 222; (2004) 42 MVR 130

Little v The Queen [2001] WASCA 87

Mill v The Queen (1988) 166 CLR 59

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

Rigby v The State of Western Australia [2005] WASCA 134

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1 ROBERTS-SMITH JA: I agree with the reasons for judgment of McLure JA and have nothing further to add.

2 McLURE JA: On 3 November 2005 the appellant was convicted on his own plea of guilty of one count of stealing a motor vehicle and driving it recklessly contrary to s 378(2)(a) of the Criminal Code (WA) and one count of aggravated robbery contrary to s 392(d) of the Criminal Code. At the same time the appellant pleaded guilty to 18 other offences the subject of two s 32 notices. The offences included six burglary offences, six offences of stealing or attempting to steal a motor vehicle, three stealing offences, one reckless driving, one failure to stop and one driving under suspension. The driving offences in the s 32 notice were connected with the indictable offence of stealing a motor vehicle and driving it recklessly.

3 As a result of the commission of the indictable offences, the appellant breached an intensive supervision order imposed on 14 April 2003 and a suspended term of imprisonment imposed on 21 November 2003. On 2 December 2005, the learned sentencing Judge imposed a total effective sentence of 7 years and 9 months with eligibility for parole. The details of the individual sentences and the orders for cumulation or concurrency are as follows:

6 months' imprisonment concurrent plus 6 months' licence disqualification cumulative on any other disqualification

9 months' imprisonment concurrent plus 2 years' licence disqualification cumulative on any other disqualification

2 years' imprisonment cumulative plus $200 compensation

Breach intensive supervision order imposed 14 April 2003

Breach suspended term of imprisonment imposed 21 November 2003

4 The learned sentencing Judge referred to totality. He said:

"The sum total of those offences, they are the indictable offences and the section 32 matters, is 243 months' imprisonment or 20 years and 3 months. I must have regard to the totality and clearly a sentence of that order would be crushing. I must endeavour that the sentence imposed does give you some light at the end of the tunnel if you are able to mend your ways and indicate that you may be a law-abiding citizen."

5 The only ground of appeal is that the total effective sentence infringed the totality principle. There are two limbs to the totality principle. The first 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 referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

6 The second limb of the totality principle is that the Court should not impose a "crushing" sentence. The word crushing in this context connotes the destruction of any reasonable expectation of useful life after release: Martino v State of Western Australia [2006] WASCA 78 at [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J.

7 The facts of the indictable offences are as follows. At about 1.37 am on 11 February 2005 police observed the appellant driving a stolen vehicle along Fitzgerald Street, Perth. The officers activated their lights and siren and the appellant immediately increased the vehicle's speed and drove through Perth, East Perth and Rivervale at high speed and in a dangerous manner before the stolen vehicle crashed into a police car near the Causeway in Victoria Park. In the course of the pursuit, the appellant contravened three stop signs at speeds between 25 and 60 km per hour, contravened nine red traffic control lights at speeds between 20 and 135 km per hour, drove at high speed on residential roads, the top speed being approximately 155 km per hour on Great Eastern Highway, Burswood. When on Albany Highway and approaching the Causeway, travelling at approximately 90 to 100 km per hour, the stolen vehicle driven by the appellant and a police car collided. The impact caused the police car to be pushed onto the incorrect side of the road. The stolen vehicle driven by the appellant followed the police car at speed onto the wrong side of the road and rammed the police vehicle. The impact caused the two cars to lock together and veer left where the appellant's vehicle crashed into a guard rail protecting a footpath. The appellant started the stolen vehicle and attempted to drive off. Three police vehicles were then damaged when they were placed in front of the appellant to prevent him from driving from the scene.

8 The convictions the subject of the first s 32 notice are closely related to the indictable offence. Ten minutes earlier at around 1.27 am on Friday, 11 February 2005 the appellant was observed driving the same stolen vehicle in Mount Lawley. Police activated their blue flashing lights and directed the appellant to stop his vehicle. The appellant failed to stop when called upon and accelerated heavily, going through a stop sign at 25 to 35 kilometres per hour. The offender was then pursued for a distance of 15 kilometres before he crashed his vehicle on the Causeway as described in relation to the indictable offence.

9 The aggravated burglary occurred about 6.45 pm on 10 February 2005. The complainant was placing her young child in her vehicle after leaving a shopping centre in Dianella when she was approached from behind by a male co-offender. The co-offender grabbed the complainant's handbag and a violent struggle ensued. Eventually the complainant was overpowered and the man ran with the handbag to the waiting stolen vehicle driven by the appellant.

10 The first 15 offences the subject of the second s 32 notice were committed in a two month period between 8 October 2004 and 9 December 2004. It is unnecessary to detail the facts of all the offences. A selection will suffice.

11 Between 8 and 10 October 2004 the appellant gained entry to the Department of Community Development office in Manjimup. He stole $50, a mobile phone and two sets of vehicle keys. He used one set of keys to steal a Toyota Camry belonging to the Department and the other set of keys were given to another person who used them to steal a Toyota Prado also belonging to the Department. The Prado was broken into parts. These facts relate to offences 1 - 3 on the second s 32 notice. In relation to offence 4, on 20 October 2004 the appellant stole a motor vehicle from a car park in Leederville. The vehicle was involved in a police pursuit in Bunbury on 23 October 2004. Offence 5 was committed on 5 November 2004. The appellant stole a vehicle from a car park at Royal Perth Hospital. The motor vehicle was used on 7 November 2004 in a short pursuit with police in Greenbushes. The appellant was driving the car, which had false numberplates, before abandoning it. A pregnant female passenger and a 3-year-old child were present in the car during the pursuit.

12 Before the pursuit on 7 November 2004, in the early morning of 7 November the appellant used the stolen vehicle to drive to Karri Valley Resort where he attempted to steal two motor vehicles and committed burglary and stealing offences. They are offences numbers 6 - 10 on the second s 32 notice. Between 7 and 8 November 2004, the appellant committed burglaries at the Silver Chain Nursing Association and St Paul's Anglican Church in Bridgetown.

13 The intensive supervision order was imposed for the offence of stealing and the term of suspended imprisonment was imposed for the offences of assault occasioning bodily harm and breach of bail.

14 The appellant was born in 1975 and was 30 years old at the time of sentencing. He had a de facto partner with whom he had a 7-month old child and a 3-year-old step-daughter. The appellant had an emotionally and socially deprived childhood with exposure to violence, alcohol abuse and physical abuse as a child and young adolescent. He dropped out of school in Year 8 and began living on the streets. He commenced using amphetamines when he was young and admits to being under the influence of amphetamines at the time he committed the offences. He said he used amphetamines to self-medicate for depression.

15 The appellant has a long history of frequent offending which commenced when he was aged 11. He has an extensive history of offending as an adult. The offending includes armed robbery, deprivation of liberty, assault occasioning bodily harm, assault of a public officer and numerous motor vehicle related offences. He has spent a significant portion of his life in prison and is described as institutionalised. Whilst in prison the appellant has had the benefit of many programmes and individual counselling which do not appear to have had any significant

impact on his behaviour. A report from a psychiatrist observed that "any further psychiatric or psychological treatment at this stage is unlikely to make any difference to his re-offending rate and his propensity to anti-social behaviour in the community". He is identified in the pre-sentence report as being at a high risk of re-offending.

16 There is no doubt that the sentence of 7 years and 9 months is severe. It equates to a sentence of 11 years and 8 months under the sentencing regime that applied prior to the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Moreover the appellant made fast-track pleas of guilty to the indictable offences and pleaded guilty to the remaining offences. It is also the case that the indictable offences were committed within hours of each other. All of the offences occurred between 8 October 2004 and 11 February 2005. However, the significance of the time frame is reduced having regard to the continuity of the appellant's offending punctuated by periods of non-offending when the appellant was in prison. The appellant's antecedent criminal history demonstrates that this series of offending is not an uncharacteristic aberration but is a manifestation of a continuing attitude of disobedience of the law and illuminates his significant culpability: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 - 478. Having regard to all relevant sentencing considerations I am not persuaded that the sentence of 7 years and 9 months infringes either limb of the totality principle. I would dismiss the appeal.

• Indictment 572 of 2005
• S 32 Notice attached to above indictment
• Indictment 1027 of 2005
• S 32 Notice attached to above indictment