Criminal law - Appeal against sentence - Whether sentence offends totality principle or is manifestly excessive - Turns on own facts

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

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

Vlek v The Queen, unreported; CCA SCt WA; Library No 990153C; 29 March 1999

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

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

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

McLean v The Queen [1999] WASCA 209

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

R v Verschuren (1996) 17 WAR 467

Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313

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

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

2 MCLURE JA: On 5 May 2005 the appellant was convicted on his own plea of guilty of one count of aggravated burglary and one count of attempting to steal a motor vehicle. The appellant pleaded guilty on the fast track system. He was sentenced by Wager DCJ to 12 months imprisonment on both counts which were ordered to be served concurrently with each other but cumulatively with sentences of imprisonment the appellant was serving at that time for other offences. He was made eligible for parole.

3 Wheeler J granted leave to appeal on the ground contained in the Appeal Notice dated 24 May 2005. That ground provides:

"The learned Sentencing Judge erred in law by imposing a sentence that was manifestly excessive taking into account the circumstances of the offence, the offender's plea of guilty, the offender's capacity for rehabilitation, the totality principle, and all other matters personal to the offender."

4 The appellant subsequently filed a document entitled "Appellant's Grounds of Appeal" which contains three grounds, all of which purport to identify express error in the sentencing Judge's reasons and all of which are unmeritorious and would not attract a grant of leave. I propose to deal with the appeal on the sole ground on which leave was granted.

5 The facts of the offences were not in dispute. They were committed at about 11.40 pm on 15 April 2003, just over two years before the appellant was sentenced. The appellant went into the backyard of the complainant's house and went to a rear sliding door. He unlatched the lock in order to gain entry to the house. The complainant and her husband were asleep inside the house. Once inside, the appellant walked through the house and located a set of car keys to the complainant's vehicle. The appellant took the keys and walked to the front door of the house where he unlocked it and let himself out. He then walked to the complainant's carport where her vehicle was parked and unlocked the driver's side door using the stolen keys. He attempted to start the car without success because of an immobiliser fitted to the vehicle. The noise of the appellant trying to the start the vehicle woke the complainant and her husband. The complainant walked to the front porch where she confronted the appellant who was standing in the carport. He turned to the complainant, walked

towards her offering the car keys to her, then pushed her back through the front door into the house. The appellant followed the complainant inside and told her that the police were after him and to be quiet. The appellant requested the complainant and her husband to call him a taxi, which they did. The taxi arrived at the same time as a police vehicle which followed the taxi into the driveway. The appellant ordered the complainant's husband to move the taxi before he eventually fled the premises. During the offence the appellant was bleeding from cuts on his hand and foot which left blood inside the house and on the complainant's vehicle. A subsequent DNA analysis of blood swabs identified the appellant as the offender.

6 At the time of sentencing the appellant was serving a total effective sentence of 7 years' imprisonment for a large number of other offences for which he was sentenced on three separate occasions by Hammond CJDC and Williams and O'Brien DCJs respectively. The details are as follows:

Indictment No: 1354 of 2003 and accompanying section 32 Notice.

7 The appellant was sentenced by Hammond CJDC on 10 September 2003 as follows:

4 months concurrent plus 12 months MDL disqualification

4 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

Driving without valid driver's licence and while disentitled to hold licence

8 months concurrent plus 12 months MDL disqualification

8 Hammond CJDC sentenced the appellant to a total effective sentence of 7 years' imprisonment. He was made eligible for parole.

Indictment No: 230 of 2004 and accompanying section 32 Notice.

9 The appellant was sentenced by Williams DCJ on 25 February 2004 as follows:

10 Williams DCJ sentenced the appellant to a total effective sentence of 2 years' imprisonment with parole eligibility, to be served concurrently with the sentence imposed on 10 September 2003 by Hammond CJDC.

Indictment No: 636 of 2004 and accompanying section 32 Notice.

11 The appellant was sentenced by O'Brien DCJ on 20 and 22 April 2004 as follows:

12 O'Brien DCJ sentenced the appellant to a total effective sentence of 2 years' imprisonment with parole eligibility, to be served concurrently with the previous sentences.

13 The appellant was a repeat offender at the time of committing the aggravated burglary the subject of this appeal, with the consequence that the sentencing Judge was obliged to impose a sentence of at least 12 months imprisonment (s 401(4) of the Criminal Code).

14 As the sentencing Judge observed, the appellant had a very bad record which she noted included 21 burglaries or attempted burglaries. After referring to other relevant factors, including indications of progress towards rehabilitation, the sentencing Judge said:

"Taking all that into account I do still consider that I have got to give you a cumulative term, or a further term, but I'm going to reduce that term substantially because of the total term that you're required to serve."

15 Thus, the sentencing Judge considered the totality principle, which resulted in her making a significant reduction in the term she would have otherwise imposed, and made the reduced term cumulative with his existing sentence. The primary thrust of the appellant's submission was that the totality principle required that the total effective sentence of 12 months be served wholly concurrently with the terms of imprisonment then being served by him.

16 The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J. That is, the Court must review the aggregate sentence to ensure that it is just and appropriate for the offender's behaviour as a whole. An aggregate sentence may be inappropriately long even if it cannot be described as "crushing": Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [22]. The word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release: Vlek v The Queen, unreported; CCA SCt WA; Library No 990153C; 29 March 1999, at 12 per Anderson J.

17 The totality principle also applies in circumstances where a defendant is still serving a sentence for another or other offences at the time of sentencing. In that factual context, a sentencing court must ensure that the accumulation of the new and existing sentences does not result in an aggregate sentence which is inappropriately long, having regard to the course of criminal conduct viewed as a whole. The rationale for the totality principle in this context was explained by Anderson J in Vlek as follows (at 10):

" ... 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 ... Furthermore ... 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 ... 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."

18 The appellant was born on 7 July 1975. He was aged 29 when the sentences under appeal were imposed. The appellant commenced using drugs at age 10. By the time he was 15, he was using amphetamines and

later transferred to heroin. He was first convicted for an offence just prior to his 10th birthday and has a particularly bad record of offending. He has spent a significant proportion of his life in detention. Much of his offending, particularly after 2002, was drug-related. The pre-sentence report provides some support for cautious optimism. In April 2004, his counsellor confirmed that the appellant had made commendable efforts to address his substance abuse issues and had approached his current period of imprisonment with a much greater degree of application and determination to free himself both physically and psychologically from his addiction to drugs.

19 The offences for which the appellant was serving a total effective sentence of 7 years' imprisonment were committed in the period May 2002 to April 2003. The sentences under appeal were for offences committed in April 2003. The sentencing Judge was clearly correct in applying the totality principle. She did so by significantly reducing the sentences she would otherwise have imposed but, unlike Williams and O'Brien DCJs before her, concluded that the sentence should not be served concurrently with the total sentence of 7 years imposed by Hammond CJDC. I am not persuaded that the sentencing Judge erred in the exercise of her discretion in that regard. The aggravated burglary offence for which he was sentenced by Wager DCJ was appropriately characterised by her as serious. The circumstances of a number of the other aggravated burglary offences for which the appellant was already serving a term of imprisonment also fell within that category. The number and seriousness of the offences are relevant to the total criminality of the course of criminal conduct viewed as a whole. It cannot be said that the two further offences, added to the other 40 for which he had already been sentenced, did not add to the total criminality.

20 I am satisfied that it was well within the sound exercise of the sentencing discretion to significantly reduce the terms of the sentences under appeal and to make the total term cumulative with the appellant's existing sentences. The total sentence imposed by Wager DCJ did not breach the totality principle and was not manifestly excessive. I would dismiss the appeal.

• Indictment No: 1354 of 2003 and accompanying section 32 Notice.
• Indictment No: 230 of 2004 and accompanying section 32 Notice.
• Indictment No: 636 of 2004 and accompanying section 32 Notice.