The applicant was soon apprehended and charged. She was also charged, then or later, with motor vehicle theft. As to that charge, it appears that she had driven to Bunbury from Perth, either the day of the offences or the day before, in the car of an acquaintance without his permission. As has been mentioned, she pleaded guilty to the three charges in the Supreme Court in June 1997. She was sentenced to 4 years' imprisonment for the robbery and 2 years for the attempted robbery. Because of their close connection, those sentences were ordered to be served concurrently. In respect to the motor vehicle theft, she was given an effective sentence of 6 months' imprisonment, although it was reduced to 3 months on account of time spent in custody. This 3-month sentence was ordered to be served cumulatively on the aggregate custodial sentence of 4 years imposed for the robberies. Thus, she received an aggregate sentence of 4 years and 3 months on that occasion. (I should say that her application for leave to appeal against those sentences was dismissed in this Court on 17 February 1998. See, generally, Vlek v The Queen, unreported; CCA SCt of WA; Library No 980064; 17 February 1998.)

There is a series of other convictions on her record which post-date her conviction and imprisonment in June 1997 on the Bunbury charges. On 8 July 1997, she appeared in the Court of Petty Sessions and was convicted of two charges of assaulting a public officer, one charge of burglary, one charge of giving a false name and address, five charges of stealing, one charge of driving without a licence, one charge of using a false number-plate and one charge of driving an unlicensed motor vehicle. It is not clear when these offences were committed or what the circumstances of them were. For these offences, she received sentences which added 6 months to the sentences she had received in the Supreme Court.

If one accepts that the sentence of 3 months in respect to the motor vehicle theft was really a sentence of 6 months because of the 3 months already spent in custody, this total set of sentences in June and July 1997 amounted to an aggregate custodial term of 5 years. I should add that in August 1997, she received two other convictions, one for loitering and one for possessing a prohibited drug, but no further custodial terms were imposed.

I will now describe the circumstances that brought her before the District Court to receive the sentence now appealed from.

In the late afternoon of Sunday, 6 April 1997, the applicant was a passenger in a vehicle being driven by a Mr Lynch. At this time, the applicant was on bail in respect to the Bunbury offences and probably also in respect to the other offences that I have mentioned. The applicant directed Mr Lynch to an address which she described as "a friend's place" which was an address in Emmerson Street, North Perth. The applicant asked Mr Lynch if he would mind waiting while she visited the premises for a short time and Mr Lynch agreed. The applicant then went to the rear of the house, out of sight of Mr Lynch. There was no-one else present at the house. The applicant took up a house brick and broke a hole in the asbestos wall of a sleep-out. Whilst she was doing this, a neighbour, a Mrs Eliades, approached her and asked her what she was doing. The applicant said words to the effect that she lived at the house and that her keys had been locked inside. Mrs Eliades' presence did not deter the applicant, who got into the house intending to steal. Meanwhile, Mrs Eliades informed her husband of what she had seen and telephoned the police. Mr and Mrs Eliades went back outside with a view to doing what they could to keep the applicant thereabouts until the police arrived. The applicant re-emerged from the house, carrying what appeared to Mr and Mrs Eliades to be an iron bar. It was, in fact, a headless golf club and, in the scuffle that ensued, the sharp end of the golf club went through Mr Eliades' right hand. Seeing Mr Eliades attempting to restrain the applicant, Mr Lynch got out of his car and told Mr Eliades to let the applicant go because "she is with me". Mr Eliades let the applicant go and the applicant ran off.

Mr Eliades was taken to Royal Perth Hospital, for treatment to his hand. The wound was to the web between his thumb and forefinger. It was quite a nasty injury. After treatment, including stitching, he was allowed to go home.

The applicant was arraigned before Fenbury DCJ on 2 June 1998 in respect of those matters. She was actually arraigned on two charges - a charge of aggravated burglary (one of the circumstances of aggravation being the doing of bodily harm to Mr Eliades) plus a charge of unlawfully wounding Mr Eliades. She pleaded guilty to aggravated burglary but not guilty to unlawfully wounding Mr Eliades. Fenbury DCJ remanded her for trial on that charge. However, before a trial date was fixed the Crown prosecutor decided not to proceed with the charge of unlawful wounding, in light of the applicant's plea of guilty in respect to the charge of aggravated burglary. The matter was listed before Nisbet DCJ in the District Court on 24 July 1998 on that basis, that is, for his Honour to hear the plea and pass sentence in respect to the first count.

After hearing full submissions in mitigation, Nisbet DCJ passed the sentence referred to at the beginning of this judgment; that is, a sentence of 3 years' imprisonment to be served cumulatively upon the sentences which she was then serving. It is against that sentence which she now seeks leave to appeal.

The totality principle and the rule against "crushing" sentences

The grounds of appeal initially contained a plea that the sentence was manifestly excessive, but that ground of appeal was effectively abandoned at the hearing before us and in my opinion rightly so. Having regard for the maximum penalty which parliament has fixed for the crime of aggravated burglary and having regard for the circumstances of this particular offence, including the aggravating circumstance of doing bodily harm to Mr Eliades, and the applicant's long criminal history, it could not be contended that a sentence of 3 years' imprisonment was manifestly excessive if it stood alone. In the end, counsel for the applicant, Mr Sutherland, very properly submitted that the only ground of appeal which the applicant could hope to succeed upon was the ground which complains of a breach of the "totality principle". As to that principle, it is well settled that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences even where more than one sentencing court is involved: Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517. The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole. In R v Holder & Johnston (1983) 13 A Crim R 375, Street CJ said 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."

The question is whether the circumstances of this case allow for the application of the totality principle in the sense in which that principle is expounded in cases like Mill, Todd and Holder & Johnston and, if so, whether his Honour correctly applied the principle.

The three cases mentioned were cases of crime sprees. In Mill all three offences of armed robbery were committed in a period of six weeks. The only reason separate sentencing courts were involved was that two offences had been committed in Victoria and one in Queensland. Relatively speaking, the offences were closely connected in time and nature and could be regarded as constituting one continuing course of criminal conduct. In Todd the offences (in New South Wales and Queensland) occurred in the space of a couple of months. In Holder & Johnston the offences occurred on one night at the same place.

In the case which we have under consideration, the sentence imposed by Nisbet DCJ was for an offence unrelated and unconnected in nature, time or circumstance to the offences for which the applicant was already in prison. His Honour was not provided with any detail concerning those offences and neither were we. I obtained the detail which I have recounted in relation to the Bunbury offences from the reasons for judgment of this Court (differently constituted) dismissing the applicant's appeal against the sentences which she received for those offences; that is, Vlek (supra). So far as I can see, there was no information at all before the learned sentencing Judge and there is none before us regarding the several matters in respect to which she was sentenced in the Court of Petty Sessions. Reservations have been expressed about the direct applicability of the totality principle in its pure form in such circumstances. How does the second sentencing court assess the "totality of the criminality" or evaluate the offender's "overall culpability" in respect of unconnected matters dealt with by another court? See Larsen v R (1989) 44 A Crim R 121 per Badgery-Parker J at 126. May I also refer to my judgment in Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993. Nevertheless, there is now a long line of authority to the effect that the totality principle must be applied, as best the court can, not only to sentences imposed in the one court for offences committed as part of a connected and roughly contemporaneous series of offences (about which the Court will know all that needs to be known), but also wherever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence about which the Court might not know very much. As Badgery-Parker J himself said in Larson (loc cit):

"The principle of totality must always inform the sentencing process when a prisoner comes to be sentenced for an offence at a time when he is already serving another sentence. When cumulative sentences are to be imposed, the appropriateness of each sentence has to be assessed by having regard to the ultimate aggregate sentence that results from the adoption of that course of action. 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."

Some cases in which it has been held that the principle applies to all situations in which an offender may become subject to more than one sentence whether for connected offences or not are Harrison v R (1990) 48 A Crim R 197, especially at 198-200; Close v R (1992) 65 A Crim R 55, especially at 59-60; Jarvis (supra) per Ipp and Murray JJ and Kickett v The Queen, unreported; CCA SCt of WA; Library No 950230; 10 May 1995. In his work "Principles of Sentencing" (2nd ed) at 57, Mr D A Thomas said of the principle:

"The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases, the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive."

In Mr Thomas' short work "Sentencing Referencer" (1998) at 32, the statement is made that:

"In all cases, whether or not the sentences are passed on the same occasion or by the same sentencer, the court should have regard to the principle of totality and review the aggregate sentence to ensure that it is just and appropriate for the offender's behaviour, taken as a whole."

Therefore the learned Judge was obliged to apply the totality principle in this case, notwithstanding that the offending with which he was concerned was quite unconnected with and separated by some seven months from the major episodes of offending in respect to which the applicant was serving her sentence and notwithstanding that his Honour knew little about the circumstances of those other offences.

I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately. Jarvis v The Queen (supra), especially per Ipp J. Furthermore, as was pointed out in Mill, the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an "emphatic denunciation by the community" of his or her criminal behaviour and attitude. See Cross: "The English Sentencing System" (Butterworths 1971) at page 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative.

That these are very real factors in cases where successive or cumulative sentences are to be imposed is well illustrated by this case. By the time the applicant came before Nisbet DCJ to be dealt with for the aggravated burglary, she had been in prison for a little more than a year. That this had had a salutary effect on her is apparent from his Honour's remarks. His Honour was able to say of her (at AB 76) after observing her in the dock, considering written material and hearing submissions of counsel:

"I accept too that since being imprisoned you have had to cope with heroin withdrawal ... I can see, I think, that you have changed. If you will permit me to say so, I think you have an air of resigned melancholy about you which I think augurs well for your future. Your counsel told me that you have reassessed your life.

Having been able to withdraw from your heroin addiction you have had the opportunity ... to think clearly about your past and whilst you accept you have had a difficult life you seem determined, if given the opportunity, to re-enter the community and work and put your past behind you. There is still, fortunately, plenty of time for that."

His Honour then proceeded to discuss the various matters that he had to take into account in arriving at a proper sentence. He did so carefully and comprehensively, if I may respectfully say so, and it is not suggested that he failed to take into account anything personal to the applicant that could fairly go in mitigation; nor is it submitted that he took too severe a view of the seriousness of the particular burglary offence. As to the totality principle itself, his Honour said (AB 76):

"There are a number of principles that have to be brought to bear in thinking of any appropriate sentencing ... One of these is called the totality principle by which I understand that I have got to look at all of the offences that you have committed, notwithstanding they're committed at separate places at separate times and separate properties against separate people, and look at the total length of time that you would have to spend in prison to see whether that would be so, I think, crushing upon you as to deprive you of any hope. The law requires me not to do that. I have got to impose a sentence upon you that gives you some hope and a prospect, a realistic prospect of rehabilitation."

With respect to his Honour, I do not think we are here dealing with a crushing set of sentences. The question was not whether sentences aggregating eight years would be crushing in the sense in which that word is generally understood in this field. In R v Yates [1985] VicRp 3; [1985] VR 41 at 48, Young CJ, Starke, Crockett and Hampel JJ, in the Victorian Court of Criminal Appeal, defined "crushing" as "connot(ing) the destruction of any reasonable expectation of useful life after release". See also R v Bazley (1993) 65 A Crim R 154 at 158; Vaitos v R (1981) 4 A Crim R 238. Burnett v R (1994) 70 A Crim R 469 at 473-474. There could not really be any question of that in this case. However, sentences which are not crushing may nevertheless offend the totality principle by being, in the aggregate, just too long having regard for the overall criminality in the conduct of the offender.

So far as one can tell from his Honour's remarks, he looked only to whether the cumulative sentence which he intended to pass would be crushing in its effect upon the applicant. Obviously, he decided it would not and, if the test of "crushing" is as stipulated in Yates, plainly it was not a crushing sentence in its totality. I think, however, that what we are really concerned with here are other aspects of the totality principle which are concerned not so much with considerations of mercy arising from the conclusion that a sentence is of crushing effect, but (as Mr D A Thomas op cit put it at p58 of his work) with the principle of "proportionality between offence and sentence" and with the matters I have mentioned above - the harsher effect of a cumulative sentence and the diminished need to punish the particular offender by reason that the offender is already suffering custodial punishment. In other words, the sentencing court was not so much concerned to mitigate an otherwise appropriate sentence as an act of mercy to avoid a crushing effect on the particular offender, but to arrive at an appropriate sentence in the first place, having regard for the fact that the offender was already in prison required to serve out a custodial term before commencing to serve the sentence about to be imposed.

All in all, I think that it must be held that a cumulative sentence of 3 years' imprisonment having the effect of imposing a total of 8 years' imprisonment for this series of offending is too long. A sentence of 8 years is a sentence which is usually imposed for serious robberies involving home invasion. There is no doubt that the Bunbury robbery offences and the North Perth burglary offence had bad features, but the level of criminality was not anywhere near the most serious end of the range in either instance. I would say it was below the middle of the range of seriousness. There seems to have been no planning involved at all in either instance. The applicant acted alone and very inefficiently. When the two ladies stood up to her in Bunbury, she dropped the wallet and the screwdriver and made off empty-handed. There seems to have been no planned get-away. She was soon stopped by police and so far as appears, she made no resistance nor did she attempt flight. As to the North Perth incident, there was even less planning, if that is possible. There is no suggestion that the driver of the vehicle, Mr Lynch, knew anything of her intentions or was in any way implicated in the burglary. It is not at all clear that she went there with the intention of breaking in. She carried no house-breaking implements. It was not disputed that the house was occupied by an acquaintance of hers and the explanation made on her behalf that she expected him to be at home and to give her the assistance she was seeking was not contested. As to the entry into the house she took a house brick to the asbestos wall in full view of the neighbours. All in all, it appears to have been an impulsive, unthinking, if not a desperate act. Once again, she got nothing. The wounding of Mr Eliades was a serious, aggravating feature. It was a case in which a sentence of 3 years' imprisonment was an appropriate sentence in itself, but I think that to add 3 years to her existing 5-year sentence was too much. Whilst the learned sentencing Judge's decision to impose a cumulative sentence was correct, his Honour was in error, if I may say so with the utmost respect, in failing to modify the sentence in light of the fact that the applicant had to first serve the custodial part of a sentence of 5 years before coming to serve the sentence imposed by his Honour.

I propose that, in lieu of the sentence imposed by Nisbet DCJ, this Court should impose a cumulative sentence of 2 years' imprisonment. The learned sentencing Judge made the applicant eligible for parole and I would propose that she be made eligible for parole in respect to the substituted sentence.