MILLS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 118 (29 May 2007)

Court of Appeal (WA)|2007-05-29|Before: Steytler P

2 McLURE JA: These are two appeals against sentence. I agree with the orders proposed by Miller AJA in each appeal. However, I intend to shortly state my own reasons for reaching that conclusion. The facts and grounds of appeal are detailed in the reasons for judgment of Miller AJA and not repeated here unless required for an understanding of these reasons.

3 The appellant was convicted of one count of robbery in company for which he was sentenced to 5 years and 4 months' imprisonment and one count of extortion for which he was sentenced to 2 years' imprisonment. The learned sentencing Judge ordered the sentences to be served concurrently.

4 In substance, the appellant claimed that the sentencing Judge made an express error in failing to consider issues of delay, rehabilitation and totality and further, that error is to be implied from the fact that the total effective sentence is too long and thus breaches the totality principle. The claim of express error requires an understanding of the history.

5 In February 2004 the appellant was charged with a number of drug offences including possession of a prohibited drug with intent to sell or supply. Whilst on bail for the drug offences, the appellant committed the offences the subject of this appeal ("the current offences"). On 24 March 2004 he was arrested and charged with the current offences. From 30 March 2004 the appellant was held in custody. On 8 October 2004 he was sentenced to a term of 2 years and 4 months' imprisonment on the drug charges backdated to 30 March 2004. On 29 May 2005 he became eligible for parole on the drug offences but was not released because of the pending trial in relation to the current offences. The trial was originally listed for 27 June 2005 but it was adjourned when there was no available judge. As a result of the adjournment, the appellant was granted bail in relation to the current offences but he was not at that time released to parole. On 7 September 2005 the appellant was released to parole and bail. On 21 February 2006 the second trial commenced but was discontinued for reasons unrelated to the conduct of the appellant. The third trial commenced on 28 June 2006 and concluded on 30 June 2006 with the appellant being convicted. He was sentenced on 1 September 2006.

6 The delay in the appellant's release on parole between 29 May 2005 and 7 September 2005 (approximately 101 days) was attributable to the charges for the current offences. The appellant accepted that s 87 of the Sentencing Act 1995 (WA) did not apply to this period but contended it should have been taken into account when considering the principle of totality. This is the first aspect of the delay claim.

7 The second aspect of the delay claim relates to the claimed failure of the sentencing Judge to take into account the sentence of imprisonment for the drug offences. It works in this way. When the appellant was sentenced on 1 September 2006 he had served his entire sentence (including parole) for the drug offences. However, that was not the case at any time on or before his conviction on 30 June 2006. The appellant completed his sentence for the drug offence sometime in July 2006. The appellant accepted, as was the case, that the sentencing Judge had considered totality in connection with the current offences but contended that he did not take totality into account in relation to the sentence served for the drug offences and his rehabilitation in that context. The rehabilitation relied on occurred in the period between 7 September 2005 when he was released to parole and bail and 30 June 2006 when he was convicted for the current offences, a period of some nine and a half months.

8 The totality principle requires the judge who is sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole: Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308 per McHugh J.

9 The practical effect of the totality principle is ordinarily to arrive at an ultimate aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder & Johnston [1983] 3 NSWLR 245 at 260 per Street CJ. The totality principle applies even where more than one sentencing court is involved. That is, the judge considering the appropriate sentence for an offence (or offences) is required to take into account the sentence an offender is serving in respect of other offences: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 at 8 per Anderson J.

10 The rationale for the totality principle is that the imposition of a wholly cumulative sentence, whether in respect of sentences already being served or in respect of sentences to be served, is said to be that the

sentencing court may see or assume that the offender has made progress towards rehabilitation during the term of the first sentence and that there is not the same demand for retribution where a prisoner has already suffered loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude: Vlek at 10 per Anderson J. The totality principle has been held to apply if the offender is still serving a sentence even if he has been released to parole: Barnes v The State of Western Australia [2004] WASCA 258.

11 Looked at in isolation the delay between the commission of the offence and trial, a period of just over two years, was not significant or mitigatory. However, the relevance of delay in this case is fact specific. The adjournments of the trial resulted in the appellant (1) being kept in custody for the drug offences longer than he otherwise would and (2) completing his sentence for the drug offences before being sentenced. The appellant should not be disadvantaged as a result of the delays. The sentencing Judge should have taken into account in sentencing for the current offences the delay in the grant of parole and the sentence the appellant had just completed as matters relevant to totality. The sentencing Judge did not expressly refer to those considerations in his reasons. Moreover, his approach to the sentencing of the co-offender Mills demonstrates that he did not take them into account. Mills, who had not been serving a sentence for other offences, received a 6 month discount on the penalty imposed on the appellant for robbery which discount was solely referable to the fact that the appellant had been convicted of extortion and Mills acquitted.

12 The sentencing Judge having erred in failing to take into account relevant sentencing considerations, the orders made by the sentencing Judge should be set aside and this Court should exercise the sentencing discretion afresh. There is no challenge to the sentence of 2 years for the offence of extortion and no challenge to the order for concurrency.

13 The robbery offence related to stealing the complainant's motor vehicle. The extortion offence related to the appellant orally demanding money from the complainant. As to the seriousness of the robbery offence, it was premeditated and aggravated by the appellant being in company with others and the use of actual violence. The sentencing Judge did not make any findings as to the level of violence save that it involved three punches to the complainant. I infer from the absence of any reference to bodily harm that the actual violence was minimal. However, the complainant was vulnerable as a result of his own involvement in the illegal behaviour giving rise to the debt that prompted the robbery. The perpetrators of such crimes may feel emboldened because of the reduced likelihood of the offence being reported to police. In the event that offences associated with the illegal drug trade come to attention, weight should be given to general deterrence.

14 The appellant was aged 27 at the time of the current offences. They were committed whilst he was on bail for the drug offences. Save for the drug offences, the appellant otherwise had a record of relatively minor offending that attracted fines. He had fulfilled all his parole obligations including undertaken programmes to address his offending behaviour and abstained from illicit drug use. Upon his release on parole he commenced employment with his father as a painter which he gave up to provide fulltime care to his severely disabled mother.

15 The sentence of 5 years and 4 months imposed by the sentencing Judge is at the upper end of the range of sentences commonly imposed for the more serious offence of armed robbery. The range for that offence is ordinarily 4 to 6 years (Miles v The Queen (1997) 17 WAR 518. The nature and circumstances of this offence do not justify a sentence towards the upper end of that range.

16 As previously noted, the State conceded in this case that the appropriate course was to order that the sentences for the current offences be served concurrently. That resulted in the unorthodox approach taken by the Judge in sentencing Mills. His sentence was reduced by 6 months because he had not been convicted of extortion. The proper course in this case (where the issue of parity arose) is first to identify an appropriate sentence for each offence and then reflect the extent to which the extortion offence added to the culpability of the offending as a whole by indicating the extent to which the sentences should be wholly or partly cumulative. Totality issues can then be taken into account by reducing the otherwise appropriate individual sentences or altering the extent of the accumulation. This is consistent with Pearce v The Queen (1998) 194 CLR 610.

17 Taking that approach, the appropriate sentence for the robbery offence is 4 years. The extortion offence involves additional conduct that increases the culpability of the offending as a whole such as to justify total cumulation. However, having regard to totality considerations (including the delay related factors and associated rehabilitation), I would order that the sentence for robbery commence 4 months after the commencement of the sentence for extortion. That results in a total effective sentence of 4 years and 4 months. As this is the same total sentence arrived at by

Miller AJA and because of the State concession on concurrency, I would agree with the orders proposed by Miller AJA.

18 The appellant contends that the sentence of 4 years and 10 months is manifestly excessive. That is to be determined having regard to the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

19 The maximum penalty for aggravated robbery is 20 years' imprisonment. The maximum penalty for armed robbery is life imprisonment. The appellant received a sentence that was towards the middle of the range customarily imposed for the offence of armed robbery. The appellant was aged 26 at the time of the offending. He had a relatively minor record of offending that resulted in fines. Unlike his co-offender, he had not committed an offence justifying imprisonment. Since committing the offence, the appellant has entered into a stable family relationship, found and retained employment and ceased association with his co-offenders.

20 Further, the outcome of the appeal of his co-offender (Whitburn) gives rise to a parity issue. In those circumstances it is unnecessary to determine whether the admittedly high sentence imposed on the appellant is manifestly excessive. The appellant's sentence for the robbery should be less than that of his co-offender who had a worse record and committed the offence whilst he was on bail for other serious offences. Having regard to all relevant sentencing factors, I am satisfied that the appellant's sentence for the offence of robbery should be 3 years and 4 months to commence from 30 June 2006. The appellant remains eligible for parole.

21 MILLER AJA: The appellants were jointly charged on an indictment with the offences of robbery in company and extortion. The first appellant (Mills) was convicted only of robbery in company, but the second appellant (Whitburn) was convicted on both counts.

22 The trial of the appellants took place before Williams DCJ and a jury in the District Court at Perth. Sentencing occurred on 1 September 2006. Whitburn was sentenced to 5 years 4 months' imprisonment on the count of robbery in company and 2 years' imprisonment on the count of extortion to be served concurrently. Mills was sentenced to 4 years

10 months' imprisonment for robbery in company. Both offenders were declared eligible for parole. Both sentences commenced on 30 June 2006.

23 It is convenient to deal with the appeals in reverse order.

24 Whitburn appeals against his sentence on four grounds. They are:

"1. The learned sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances of the offence, the course of justice and matters personal to the appellant.

Particulars

1.1 The learned sentencing Judge erred by failing to give sufficient weight to:

The delay suffered by the appellant in the prosecution of the charges.
The appellant's demonstrated rehabilitation.

The hardship that the appellant's mother would suffer as a result of his incarceration.

The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion, by failing to properly take into account the time served by the Appellant in custody prior to the trial.
The sentence imposed upon the Appellant is so significantly disparate to the sentence imposed upon the Appellant's co-accused that the principle of parity has been infringed and gives rise to a miscarriage of justice.

3.1 The Appellant's co-accused, Jason Neil Clifford Mills ('Mills'), was convicted before the same Judge and jury of the offence of stealing a motor vehicle from Bevan David Isaacs ('the complainant') with violence. Mills was sentenced to a term of 4 years and 10 months for the offence. The sentence was 6 months less than that of the Appellant's.

The learned sentencing Judge erred in law by failing to properly apply the 'totality principle' in sentencing the Appellant.

4.1 The learned sentencing Judge erred in law by failing to properly consider the term of imprisonment that was still being served by the Appellant at the time he was remanded in custody following his convictions on these offences on 30 June 2006."

25 Mills appeals against his sentence on a single ground. It is as follows:

"1. The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion, by imposing a sentence that was outside the range of sentences commonly imposed for offences of this nature when proper regard is had to all the circumstances of the offence and to all the circumstances of the appellant.

PARTICULARS

(a) The learned sentencing Judge failed to give sufficient weight to unusual circumstances of the offending being:

That the offending was not committed on a vulnerable target.
That the complainant and the Appellant knew each other.
That the Appellant did not offend for personal financial gain.

(b) The learned sentencing Judge failed to give sufficient weight to the changed circumstances of the Appellant since the date of offending being:

Entering into a stable family relationship
Commencing retraining and employment.
Ceasing relationships with former associates."

26 The facts of the case were summarised by the learned sentencing Judge prior to imposing sentence. The complainant, Beven David Isaacs, had been purchasing amphetamines from Whitburn over a period of time and had incurred a debt with Whitburn of approximately $2000. Whitburn made a demand for payment of the debt in full, but the complainant was able only to make payments by way of small instalments. As a result, a meeting was fixed for 19 March 2004 at Hyde Park.

27 The complainant went to Hyde Park after he had finished work on that day. He was accompanied by two friends. He said that he took them with him because "he felt threatened". He parked his motor vehicle in Vincent Street, near a Gull service station, and then went to Hyde Park. There, he saw Whitburn, Mills and a third person whom he did not know.

28 There was discussion amongst the group about the debt owed by the complainant. Whitburn told the complainant that, because he had failed to meet the debt, he now owed $4000. The complainant was punched in the left side of the face. He was told that if he had made payment at an earlier date, this would not have occurred. He was then punched in the left eye by the third person. He fell on the ground, got up and ran down Vincent Street, screaming for help. Whitburn followed him, caught up with him and held him until Mills and the third person arrived. Mills then punched the complainant, demanding to know where his car was. The complainant was told to ring his friends to bring the car keys. He was threatened that, unless the keys were brought, his car would be "booted in".

29 The complainant's car was brought to the scene. Whitburn told him that he was taking his car and unless payment was made by Monday, he would not get the car back. Whitburn then got into the vehicle and drove away. The complainant reported the matter to police. Arrangements were made to record a telephone call between Whitburn and the complainant in which Whitburn made it clear that he was holding the car pending payment of the debt. An arrangement was made for the complainant and Whitburn to meet at some premises in Wanneroo. The police intervened and arrests were made.

30 The learned sentencing Judge dealt first with Whitburn. He noted that a pre-sentence report in relation to Whitburn revealed a denial of the offences for which Whitburn had been convicted. Whitburn contended to the writer of the pre-sentence report that the complainant had approached him requesting financial assistance by way of a $4000 loan, which Whitburn understood would be repaid within a two-week period. The money was not repaid and a number of weeks passed before Whitburn was able to track down the complainant. A further agreement was said to have been entered into in which the complainant undertook to make weekly payments of $300 until the outstanding amount was paid in full. Whitburn contended that, when the money was not forthcoming, the complainant had handed over the keys to his vehicle and indicated that he could hold it as a matter of good faith until the $4000 was repaid.

31 The learned sentencing Judge noted that there was no remorse whatever on the part of Whitburn, who refused to accept the facts which supported his convictions.

32 The learned sentencing Judge took account of Whitburn's antecedents, noting that he was a full-time carer for his mother and that he was in a steady relationship. He noted also that he was 28 years of age and had a record of convictions which included common assault, threatening words or behaviour, possession of amphetamines with intent, cultivation of cannabis and possession of drugs with intent to sell or supply. He had been sentenced to imprisonment for 2 years 4 months for possession of amphetamines with intent to sell or supply and 1 year 4 months and 8 months' imprisonment respectively for two counts of possession of a quantity of drugs with intent to sell or supply. All sentences were ordered to be served concurrently, so that the effective sentence was 2 years 4 months with effect from 30 March 2004. There were numerous convictions for traffic-related matters and some other "police type" offences.

33 The learned sentencing Judge noted that Whitburn had served out the period of parole imposed in relation to the sentence of 2 years 4 months' imprisonment. The learned sentencing Judge described the facts of the case as a "thuggish attempt to collect a drug debt", where Whitburn had "inveigled into Hyde Park" the complainant to be met by himself, Mills and another. The complainant had only handed over his keys out of fear for his own safety.

34 The learned sentencing Judge indicated that without taking into account the effect of the transitional provisions contained within the Sentencing Legislation Amendment and Repeal Act 2003 (WA), he would have imposed a sentence of 8 years' imprisonment on count 1 and 3 years' imprisonment on count 2. After deducting one-third in accordance with the transitional provisions, those sentences became 5 years 4 months' imprisonment on count 1 and 2 years' imprisonment on count 2. The sentences were ordered to be served concurrently. The question of suspension of the sentences was considered by the learned sentencing Judge, but in the exercise of his discretion he refused to order suspension.

35 When dealing with Mills, the learned sentencing Judge made extensive reference to his personal circumstances. He noted that he was 27 years of age and had a criminal record, but one which was described as "minimal". It included a conviction for possession of a prohibited drug and convictions for threatening words and assault occasioning bodily harm, but all of those offences were dealt with by way of fines, the maximum fine being $800 for the offence of assault occasioning bodily harm, committed on 1 August 1997.

36 The learned sentencing Judge took account of the fact that Mills was in a new relationship and the stepfather of a child. Both mother and child were dependent upon him. He noted also that Mills had removed himself from the metropolitan area and was no longer associating with previous peers. He had re-educated himself and had full-time employment.

37 The learned sentencing Judge made reference to the pre-sentence report in relation to which the prosecution contention was that there was a total lack of acceptance of responsibility and an absence of remorse. The learned sentencing Judge did not reach any conclusion about the matter. In fact, the pre-sentence report revealed that Mills accepted that he had been found guilty at trial, but took issue with some of the facts alleged against him. He contended that he had not assaulted the complainant and contended that the money was not a drug debt, but a loan from Whitburn to the complainant. He did, however, tell the writer of the report "I don't want to get bogged down by it I've been found guilty and want to get on with my life".

38 Mills was described by the learned sentencing Judge as being present "in the role of an enforcer" and his part was said to be substantial. The learned sentencing Judge approached the sentence for Mills in an unusual way. He said:

"Because Mr Whitburn received a concurrent sentence for count 2 and because you were not involved in that offence it is appropriate that your sentence be less than Mr Whitburn's. I allow a period of six months for that. That would make the sentence four years and 10 months."

39 The learned sentencing Judge considered the question of suspension of sentence in relation to Mills, but in the exercise of his discretion declined to suspend the sentence by reason of the seriousness of the offence.

40 This ground contends that the sentence imposed upon Whitburn was manifestly excessive in the circumstances. Three particulars are given. It is contended that insufficient weight was given to delay suffered by Whitburn in the prosecution of the charges against him; his demonstrated rehabilitation and the hardship that his mother would suffer by reason of his incarceration.

41 Counsel for Whitburn pointed out that, for reasons beyond control of Whitburn, his trial, which was first listed to be heard on 27 June 2005 was adjourned because no Judge was available. A second trial was listed for 21 February 2006, but was aborted. The third trial, at which Whitburn was convicted, began on 28 June 2006. There was, thus, approximately one year's delay in the trial proceedings, occasioned through no fault of Whitburn.

42 Counsel for Whitburn contended that this delay was a factor that should have been taken into account by the learned sentencing Judge, but was not. Reliance was placed upon Kadem [2002] WASCA 133; (2002) 129 A Crim R 304 and, in particular, passages in the judgment of Wallwork J, at [41] - [45], and McKechnie J, at [55] - [59]. It is necessary only to quote the latter. McKechnie J said, at [57]:

"While the reasons for an extent of delay between offence and disposition will vary from case to case, an offender is entitled to have the delay considered: Todd (1982) 2 NSWLR 517 at 519 - 520 per Street CJ; Shore (1992) 66 A Crim R 37 [at 45] per Badgery-Parker J; Miceli (at 591 - 592; 330) per Tadgell J."

43 Reference was also made to R v Miceli [1997] VSC 22; (1998) 4 VR 588, where Tadgell JA (with Winneke P and Charles JA agreed) said that an appellant was entitled to have delay between confession and charging, and between charging and trial taken into account in the determination of the appropriate disposition of the case.

44 It was also contended that when there is shown to be rehabilitation during the period of such a delay, this also should be taken into account in the sentencing process. Reference was made to Shore (1992) 66 A Crim R 37. There, Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed), at 45 - 47, accepted that, in an appropriate case of delay, genuine rehabilitation during the delay should not be ignored.

45 Counsel for Whitburn complained that the learned sentencing Judge had really failed to make any allowance in the sentence imposed upon Whitburn for the delay that had been occasioned in the proceedings or Whitburn's rehabilitation during that time.

46 The history of the matter revealed that Whitburn was eligible for release on parole, in relation to his sentence of 2 years 4 months, on 29 May 2005. As he was about to face his first trial, and because the offences with which he was charged were alleged to have been committed whilst he was on bail for the drug offences for which he was sentenced to 2 years 4 months, no application was made for bail. However, when the case was adjourned, Whitburn was granted bail. He was not then released to parole until 7 September 2005. It was contended that, between September 2005 and June 2006, he took steps to get his life in order and reformed his life. There was some confirmation of this in the pre-sentence report which indicated that he had decided to take responsibility for the care of his mother who was suffering rheumatoid arthritis. He had also entered into a relationship with a woman who had a 4-year-old son from a pervious relationship and when he had been released to parole he had first worked with his father as a painter before ceasing work to care for his mother. In addition, he had apparently abstained from the use of illicit substances. He had completed parole with successful urinalysis results and he was considered to have successfully fulfilled all parole obligations.

47 A close reading of the learned sentencing Judge's sentencing comments does support Whitburn's contentions. No reference was made to the delay in getting to trial and, although reference was made to a submission by counsel for Whitburn at trial that he had essentially reformed himself, no conclusion was reached about it by the learned sentencing Judge. Nor was there any reference made by the learned sentencing Judge to materials relied on by counsel for Whitburn at the sentencing hearing. They included a report of Dr Greg Murphy of the Kingsway Medical Centre dated 4 July 2006 to the effect that Whitburn's mother had a severe form of rheumatoid arthritis which severely impaired her mobility and was likely to further deteriorate and make her wheelchair bound. Her son was said to be her sole carer and his assistance to her was "medically essential". There was also a letter from Whitburn's mother, Mrs Gael Russell, who wrote after the sentencing hearing indicating the extent of her disability. A number of references were also provided.

48 These materials were not referred to by the learned sentencing Judge, although his Honour does appear to have accepted that Whitburn had taken on full-time responsibility as carer for his mother, whom he said he accepted had "serious rheumatoid arthritis".

49 The second ground of appeal contends that the learned sentencing Judge failed properly to take into account time served by Whitburn in custody prior to his trial.

50 There was considerable debate during the sentencing hearing about the question whether any allowance should be made for time served by Whitburn in custody prior to his trial. The learned sentencing Judge concluded that no credit could be given for the period 29 May 2005 to 7 September 2005, being the period that Whitburn remained in custody awaiting release on parole.

51 In this respect, the learned sentencing Judge was undoubtedly correct. Section 87 of the Sentencing Act 1995 (WA) provides as follows:

"87. Taking time on remand into account

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and

(b) the sentencing court decides that that time should be taken into account,

the court may take that time into account -

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."

52 In the present case, Whitburn had not spent time in custody in respect of the offences for which he was convicted "and for no other reason". The time during which he was in custody awaiting release on parole could not therefore have been taken into account by reducing the fixed term by an appropriate period or by ordering the backdating of the sentence.

53 The only way in which that fact could have been taken into account was in relation to the question of totality, to which I will later turn.

54 This ground contends that, because Mills was sentenced to 4 years 10 months on the first count on the indictment, which was only 6 months less than Whitburn's sentence, there is a disparity in sentence which leaves Whitburn with a justifiable sense of grievance warranting the intervention of the Court: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 per Gibbs CJ, at 610.

55 However, counsel for Whitburn conceded during argument that this ground had little substance. Clearly, in my view, it has no substance. That is because Whitburn had a demonstrably worse criminal record than Mills and his personal circumstances were less favourable than those relating to Mills.

56 This ground contends that the learned sentencing Judge failed to properly apply the "totality principle" in the sentencing process.

57 The totality principle was expressed in Mill v The Queen (1988) 166 CLR 59, at 62 - 63:

"The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56 - 57 as follows (omitting references):

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences".'

See also Ruby, Sentencing, 3rd ed (1987), pp 38 - 41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

58 In Jarvis v The Queen (1993) 20 WAR 201, Ipp J, at 206 - 207, said:

" ... in taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: see Wicks v The Queen (1989) 3 WAR 372 at 379 - 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.

While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312."

59 The argument for Whitburn is that, because he was forced by the delay in the trial proceedings to remain in custody for a period substantially longer than would have been anticipated had the trial not been delayed, some recognition of this should have been included in the sentencing process when the learned sentencing Judge looked at the totality of the sentences to be imposed.

60 In my view, there is substance in this submission. Clearly, Whitburn had his release on parole delayed between 27 June 2005, when he was granted bail in the District Court, and 7 September 2005, when he was ultimately released to parole. He had been eligible for release on parole on 29 May 2005.

61 It would, in my view, have been appropriate for the learned sentencing Judge to have looked at the fact that Whitburn had his release on parole delayed by several months by reason of the delay in proceedings. Jarvis (supra) is certainly authority for the proposition that an offender serving a sentence for one offence is entitled to have the totality principle applied when he is about to be sentenced for a further offence. Here, Whitburn was serving a sentence, albeit on parole. This was a matter which the learned sentencing Judge should have taken into account. There was a need for the learned sentencing Judge to consider the harsher effect of a cumulative sentence on the sentence being served by Whitburn, albeit on parole: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 per Anderson J, at 9.

62 In my view, Whitburn has made out grounds 1 and 4 of the grounds of appeal. The sentence imposed was, in my view, manifestly excessive in the circumstances of the case, particularly viewed against the matters personal to the offender to which I have referred and the application of the totality principle to the facts of the case. Although arguably the sentences on counts 1 and 2 could have been cumulative rather than concurrent, it appears that counsel for the prosecution conceded that concurrency was appropriate. It was for that reason that the learned sentencing Judge said he made the sentences concurrent.

63 Nevertheless, a sentence of 5 years 4 months' imprisonment on the first count on the indictment failed sufficiently, in my view, to take account of the matters personal to the offender and failed to take full account of the totality principle. In the circumstances, I consider that the sentence imposed on count 1 should be reduced to 4 years 4 months' imprisonment. The sentence on count 2 remains unaltered. The sentences remain concurrent and Whitburn remains eligible for release on parole. The sentences date from 30 June 2006.

64 This appeal has a single ground. It is contended that the sentence was outside the range of sentences commonly imposed for offences of this nature when regard is had to the circumstances of the offence and the circumstances of Mills.

65 As to the first limb of the ground, it must be appreciated that this was a case of aggravated robbery, being robbery in company. It was not armed robbery.

66 It is also important to stress that the observations of Malcolm CJ, at 521, (with whom Pidgeon J agreed and White J, at 522) in Miles v The Queen (1997) 17 WAR 518, to the effect that the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, is 6 to 9 years should not be taken as a rigid formula for sentencing in armed robbery or even robbery cases. It is perhaps only necessary to repeat what Murray J said in Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998, at 18:

"It is necessary to say that the notion that a range of sentences may commonly be imposed for particular types of cases performs only the limited function of providing broad guidance to a sentencing court. The central principle of proportionality can only be served when, against that background, the experienced sentencing Judge is able to give proper weight to the many factors which will apply to the particular case, both as circumstances of aggravation and of mitigation. The balancing of those factors will, by the application of experience and judgment rather than by any mathematical process, produce the just result."

These observations were made in the context of offences of armed robbery.

67 Recent sentences for the offence of robbery in company reveal sentences of between 2 and 4 years' imprisonment, after taking account of the transitional provisions. In Madden v The Queen, unreported; CCA SCt of WA; Library No 970244; 1 May 1997, a sentence of 6 years (4 years under the transitional provisions) was imposed in a case where the appellant, together with accomplices, entered a pharmacy. One of the offenders had a screwdriver, but it was not used and was not a circumstance of aggravation pleaded in the indictment. One of the offenders held the pharmacist in a headlock and punched him in the face while others stole $300 and tablets. Madden was 22 years of age and had entered an early plea of guilty.

68 In Wilson v The Queen, unreported; CCA SCt of WA; Library No 990087; 26 February 1999, a sentence of 5 years' imprisonment (3 years 4 months in accordance with the transitional provisions) was imposed in circumstances where the appellant had accosted a person walking towards his home. The appellant punched the victim in the face, threw him against a wall and stole his mobile telephone and a wallet containing $84. He had a record of past convictions, showed no remorse and had poor antecedents generally. He was approximately 23 years of age at the time of the offence.

69 In R v Pooter [2001] WASCA 67, the appellant was placed on an intensive supervision order because of what were described as the very unusual circumstances of the case. The offender had targeted a lady loading shopping into her vehicle. He was accompanied by others and as he drove a motor vehicle towards the victim's car, one of his accomplices grabbed her handbag which was hanging over her shoulder. The handbag was caught on the victim and she was pulled along the roadway by the moving vehicle before the handbag was wrenched from her shoulder. It was a Crown appeal against sentence and the respondent may be taken to have been extremely fortunate to have not had a sentence of imprisonment substituted for the intensive supervision order. The Court was favourably impressed by the fact that he had been out of prison and maintaining a positive lifestyle for almost a year and a half. It was said by the Court, at 5, that it was "not in the best interests of the community or of the respondent for him now to be returned to prison, more particularly having regard for the fact that this is a Crown appeal and the respondent has now twice experienced the jeopardy and trauma of the sentencing procedure".

70 In Damiani v Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358, sentences of 2 years 8 months and 2 years respectively were imposed for two offences of robbery. The circumstances were that the appellant had bogged his motor vehicle, walked to a prime-mover parked in a nearby driveway and got into the driver's seat of it. The complainant attempted to open the driver's door and remove the key, but the appellant kicked him and struck him on the head. He then drove away in a reckless manner. He again bogged this vehicle and when a passer-by stopped to render assistance, he was assaulted and had his vehicle stolen. The offences were said to have been committed whilst the appellant was in a drug-induced psychotic state. He had entered a plea of guilty on the fast-track system, had no prior convictions, apart from one conviction of possession of cannabis with intent, and had a young child from a previous relationship.

71 These cases reveal that the sentence of 4 years 10 months imposed on Mills (being a post-transitional provisions sentence) was a high sentence. It is rightly contended that it was outside the range of sentences commonly imposed for the offence of robbery. However, that said, this was a bad offence of robbery in company. It involved actual violence in the context of recovery of a drug debt. The learned sentencing Judge was correct to describe it as "a thuggish attempt to collect a drug debt". Deterrent sentences are called for in these circumstances.

72 The first particulars of the ground of appeal contend that insufficient weight was given to the circumstances of the offending because (i) the offending was not committed on a vulnerable target, (ii) the complainant and the appellant knew each other, (iii) the appellant did not offend for personal financial gain.

73 I can find no substance in these contentions. The complainant may have been known to Mills and Whitburn, but the fact remained that he was the victim of a stealing with violence in which he was assaulted and injured. He was not a "vulnerable target" in the sense of people who work in delicatessens, service stations or pharmacies, but he must have felt very vulnerable on the night in question when he was assaulted in Hyde Park.

74 The fact that the Mills did not offend for personal financial gain does not seem to me to be of any importance. He was the enforcer in an attempt to recover a drug debt allegedly due to his co-offender. It did not matter, in my view, that he was not making financial gain for himself.

75 The second set of particulars contend that the learned sentencing Judge failed to give sufficient weight to the changed circumstances of Mills since the date of the offending. Three matters are listed as (i) Mills entering into a stable family relationship, (ii) Mills' retraining and employment and (iii) Mills had ceased relationships with former associates.

76 The learned sentencing Judge certainly took note of these three factors, concluding as follows:

"It is said by your counsel that the significant factor in relation to your present position is the new relationship that you have formed, you are now the step-father to a child. The mother and the child depend upon you, you have completely removed yourself from the metropolitan area and you reside down in Success and don't associate with the previous peers and don't see the co-accused. You re-educated yourself and you have full-time employment on release and that appears to be the position."

The question is whether or not sufficient weight was given to these matters.

77 In my view, the sentence imposed upon Mills was excessive, and manifestly so. A sentence of 4 years 10 months' imprisonment was a very substantial sentence for the offence committed by Mills and it failed, in my view, to take sufficient account of the matters personal to him which I have mentioned. Whilst a deterrent sentence was of paramount importance, both from the point of view of general deterrence and personal deterrence, a sentence that would more properly have marked out that deterrent effect would, in my view, have been one of 3 years 4 months' imprisonment. It follows that I would allow the single ground of appeal which has been advanced on behalf of Mills.

78 The appeals of both Whitburn and Mills should be allowed, the sentences imposed by the learned sentencing Judge set aside, and in lieu thereof sentences of 4 years 4 months and 3 years 4 months should respectively be imposed upon Whitburn and Mills. The orders for eligibility for parole should remain and the sentences will both date from 30 June 2006.

Sentencing Act 1995(WA)

Sentencing Legislation Amendment and Repeal Act 2003(WA)

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Cases Cited (11)