Ainsworth v R [2001] WASCA 212

Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

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

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Sikaloski v R [2000] WASCA 387

1 MALCOLM CJ: In my opinion the applicant should be granted leave to appeal, but the appeal dismissed. I have reached that conclusion for the reasons to be published by Einfeld AJ, with which I agree. As his Honour has pointed out, the learned Judge, having stated the sentences he proposed to impose, after making allowance for the guilty pleas and other matters by way of mitigation, said:

"Now, I then must address the totality of these sentences to ensure that they are not crushing, but also to ensure that the punishment reflects the seriousness of your offending."

2 As Einfeld AJ has concluded, the learned Judge failed to take into account the sentences previously imposed in respect of offences forming part of the same chapter of criminality or offending as those with which his Honour had to sentence the applicant. That was an error of principle. It follows that it fell to this Court to consider whether the total of the sentences previously imposed and those imposed by the learned Judge infringed the totality principle. As Anderson J (with whom Pidgeon and Ipp JJ agreed) said in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, the effect of the totality principle is that special considerations arise for a sentencing court dealing with an offender convicted of multiple offences, even where the offender is dealt with by more than one sentencing court: Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517. Anderson J stated the principle in Vlek at 6 as follows:

"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."

3 In Vlek the Court must be taken to have expressly approved the formulation of the totality principle by Street CJ in R v Holder & Johnston (1983) 13 A Crim R 375 at 379. Apart from the case where an offender is sentenced for a particular chapter of criminality by one Judge, the principle also applies "wherever a prisoner is being sentenced for an offence while he is still serving a sentence for some other offence": Vlek, supra, per Anderson J at 8 - 9, citing Larsen v R (1989) 44 A Crim R 121 per Badgery-Parker J at 126; and Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 per Anderson J at 4. As his Honour made clear in that case, the question is not only whether the sentence was "crushing", because the totality principle may be offended by a total sentence that is manifestly excessive even though it is not "crushing". Thus, the sentence may be too long even though it is not so long as to bring about "the destruction of any reasonable expectation of useful life after release", as crushing was defined in Yates v R [1985] VicRp 3; [1985] VR 41 at 48 per Young CJ, Starke, Crockett and Hampel JJ.

4 In the present case, the learned Judge only considered whether the sentence was "crushing". That was an additional error. His Honour did not follow the approach expounded by Anderson J in Vlek, supra, at 10 when his Honour said:

"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."

5 In the present context, Einfeld AJ has clearly and correctly identified the question for the learned sentencing Judge in the District Court and the question for this Court on appeal. I agree with the conclusions reached by Einfeld AJ in relation to both questions. The sentences imposed by the learned Judge were not crushing having regard to the nature and number of the offences which he committed and the impact of them upon the victims. Neither were they in their combined totality manifestly excessive. On the contrary, in the end result they represent just punishment for the total chapter of criminality involved.

6 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Einfeld AJ. I agree with those reasons and there is nothing I wish to add.

7 EINFELD AJ: During almost 12 months between July 1999 and July 2000, the applicant engaged in a spate of serious criminal activity following separation from his wife of 10 years and after becoming heavily dependent on amphetamines. The offences included 57 dealt with by a Court of Petty Sessions on 31 October 2000 including fraud, forgery, stealing, falsifying a birth certificate and passport, and possession of a prohibited weapon and a drug. The amount of money involved was of the order of $30,000. For these offences the applicant received a total effective sentence of 2 years and 6 months imprisonment with the earliest date for parole being 28 May 2001.

8 Six days prior to that date, on 22 May 2001, the applicant pleaded guilty in the District Court (Martino DCJ) to two indictments and asked that some other offences on a s 32 notice be taken into account. In all, there were 24 charges of fraud, nine charges of forgery, three charges of preparing for forgery, and one charge of receiving, involving a total sum of money in the order of $120,000. He was sentenced to a total period of imprisonment of 4 years and 4 months cumulative on the sentence of the Court of Petty Sessions he was already serving, meaning that his term was 6 years and 10 months. He was declared eligible for parole. Certain property and money was ordered to be returned to their rightful owners but the majority of the money taken was not recovered. It seems that it was spent on the applicant's own and several others' drug needs.

9 The applicant seeks leave to appeal the total sentence imposed by the District Court as manifestly excessive. In substance, the argument was that by making its sentences cumulative on those imposed by the Court of Petty Sessions, the District Court did not consider the overall period of

imprisonment and failed to apply what is familiarly called the totality principle. No challenge was made to any of the individual sentences imposed and the Crown accepted that the crimes dealt with in both courts represented one series of offences. It also accepted that during his term in prison for the first set of offences, the applicant made serious efforts at rehabilitation by undertaking a series of courses to rid himself of his drug addiction.

10 After announcing the sentences he was imposing and making allowance for the guilty pleas and other positive matters, Martino DCJ said:

"Now, I then must address the totality of these sentences to ensure that they are not crushing ... "

11 But it appears that he did not in fact do so in relation to the sentence the applicant was already serving. In other words, his Honour adjusted the sentences he was imposing by ordering some to be served concurrently and some consecutively, but did not take the existing sentence into account as part of the aggregate term the applicant would have to serve.

12 In the light of the common ground that these offences were in substance a single episode of criminality, this approach manifests an error of principle which calls for this Court's intervention. But the Crown argued that even if that were so, the extensive and serious nature of the applicant's criminality justified the total period of imprisonment in any event.

13 It is trite law that individual crimes must be punished proportionately to their seriousness and the sentences must reflect elements of punishment, individual and community deterrence, the impact on victims and many other well known matters. However, when several crimes are being punished at the same time as one course of criminal conduct, the sentencing process must not result in a total punishment which is inappropriately harsh for the totality of the crimes committed: R v Todd [1982] 2 NSWLR 517; R v Holder & Johnston (1983) 13 A Crim R 375; Mill v The Queen (1988) 166 CLR 59; Jarvis v The Queen (1993) 20 WAR 201. In Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, Anderson J cited other authority which extended this principle to the situation where more than one court is involved. At page 8, his Honour said:

" ... 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 whenever 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."

14 In arguing for no interference with the appellant's total sentence ordered by Judge Martino, the Crown pointed to the lengthy period of criminality, the methodical and systematic sophistication of the criminal activity, the substantial amount of money and property taken, with resultant loss and upset to large numbers of people, and the fact that some of the activity took place while the applicant was on bail for similar offences.

15 An examination of the material facts which constituted the offences reveals a course of conduct that is quite unlike those usually seen as induced by drug taking. And, it must be said, $150,000 will buy a very large quantity of drugs, even over an 11 month period. The following is a small but representative selection of these facts to show both the extent of the applicant's criminality and the determined and deliberate nature of the offences for which he was sentenced in the District Court:

1. A courier service vehicle known to be transporting a cheque for $261.36 from Perth to Sydney was stolen and the cheque taken, apparently by the applicant. It was banked in an account opened by the applicant in a false name after he altered it to $2,061.36. These funds were fully withdrawn.

2. The applicant opened another bank account in another false name upon the production of a birth certificate, driver's licence and Telstra contractor identification card he forged. An ATM card was issued for operation on this account. The applicant stole an insurance cheque from another person's mail box, deposited it into this account, and later made cash withdrawals from the account using the ATM card.

3. The applicant stole a cheque payable to Hewlett Packard for $240 from its mail box, altered the name to one of his aliases, changed the amount to $3,840 and banked it in one of the false accounts. He later withdrew the money.

4. A cheque for $62,750 made payable to Wilson and Hart, a South Perth building company, was stolen from its mail box, altered to Wilson J Hart and deposited in a bank account opened by the applicant in the name of Wilson Jonathon Hart. The funds were made available to the applicant immediately by his obtaining a special clearance.

5. There were several other similar crimes, and searches of the applicant's residence revealed many forged documents of the kind used in opening false bank accounts. They included four Telstra contractor identification cards, two forged University of Western Australia student identification cards, 17 drivers' licences, six birth certificates, four Medicare cards, 13 bank and credit cards, eight cheque books, 73 cheques and 160 bank statements all in false names.

16 Many other similar and supporting offences supplement this selection. For example, in order to forge these documents, the applicant broke into several cars and premises to steal original materials which were then either altered or copied. Typically these stolen documents were efficiently filed or stored in labelled files at the applicant's home.

17 His Honour was informed of, and this Court has seen, a pre-sentence report and other materials detailing the applicant's minor prior criminal record and his sad and difficult life. He is 32 years old and intelligent. His parents separated when he was three years old and his mother remarried nine years later. His stepfather abused him and he re-established relations with his natural father. He left home at the age of 15 and school at the end of year 12. When aged 19, he met and commenced to live with his former wife. They both worked hard to pay off a mortgage but the financial and work stresses caused them to separate 10 years later. They did not have children. The applicant's lifestyle deteriorated in the wake of the separation, he was treated for depression, and he commenced drinking and using drugs, and associating with other drug addicts. The applicant attributes the criminality involved in this matter to the breakdown of his marriage. He is committed to rehabilitation and working after his release. He will live with his father. His parents, their spouses and other family members support him financially and emotionally and he has a job lined up for his release.

18 The applicant's counsel argued that it is excessive to simply add the two lots of sentencing together and leave them untouched. She said that there is not the same demand for retribution where the prisoner has already suffered loss of liberty and had his criminal behaviour emphatically denounced by a significant prison sentence. Moreover, deterrence has been amply achieved by the first sentence, especially as there are real signs that the applicant has found imprisonment a hard and chastening environment such as to encourage his rehabilitation.

19 The question for the District Court was whether in the light of his significant efforts at rehabilitation, the applicant's conduct, viewed as at 22 May 2001, when he had been in prison for seven months of a 30-month sentence, called for an extra 4 years and 4 months' imprisonment. The question for this Court thrown up by the facts and submissions six months on is whether a further maximum term of 3 years and 10 months over and above the sentence of the Court of Petty Sessions is justified and appropriate.

20 The overwhelming effect of the evidence on me is the lengthy, sinister and invasive nature of the applicant's conduct. It is to his credit that he has now apparently seen the folly of his descent into crime and sought to remove himself from drugs, and the Court should not impose a sentence which unreasonably interferes with that effort. It is in the interests of the community that people addicted to drugs overcome their dependency. There is no expert evidence that his conduct was induced or even energised by his drug taking and that the drugs in turn resulted from depression following the break up of his marriage. If this nexus is true, the removal of drugs from his life and the recovery from the depression brought about by the passage of time, and perhaps therapy and treatment, should make any likelihood of further criminal behaviour remote.

21 Yet the extent and type of his criminal activities are, in my experience, atypical reactions to drugs and depression. It seems to me more appropriate to conclude that the applicant consciously decided to change what had on any view been a tough fairly unrewarding but largely law-abiding life in favour of acquiring money through extensive crime made comparatively easy by his sharp mind and intelligent capacity to devise and carry out frauds. However, in view of the Crown's acceptance of the drug and depression connection, it is perhaps wise not to speculate on this important matter and to proceed on the basis that there is or was a nexus.

22 The Court must also take into account the early pleas of guilty and the applicant's minimal past record. I accept the argument of his counsel that deterrence and retribution play a less important role in the sentencing process where there has been a term of imprisonment already served for the same course of criminality. Again, the Crown's acceptance of this characterisation of his many offences over the 11 months of crime must guide the Court's decision even though it seems a generous concession in this case in comparison to the attitude taken in some other cases which appeared to have stronger calls for the label.

23 Nevertheless, the criminality involved in the appellant's activities is on careful reflection very considerable. The offences themselves demonstrate a determined and calculated undertaking over an extended period involving a considerable sum of money and a complete disregard for both the property and feelings of others. Head sentences are designed to express community rejection of the offences under consideration and to act as a general as well as a personal deterrent. It is also the fact that a connection between drug taking and other crime, while providing something of an explanation for the crime, should not necessarily be allowed to stand to the credit of the offender as a circumstance of mitigation. Otherwise, the Court would be seen to allow one set of offences to ameliorate another when they are actually two separate sets of offences which should be dealt with separately. It is my opinion that the applicant's criminal enterprises call at least for the total sentences he received.

24 I would grant leave to appeal against the sentences imposed by the District Court but dismiss the appeal.