The sentences imposed by the learned sentencing judge produced a total effective sentence of five years and three months' imprisonment. Judge Barnett ordered that eight months of the sentence be served concurrently with the sentence imposed on the applicant by Her Honour Judge Wilmoth on 15 December 2004. His Honour set a new non-parole period of four years and declared 120 days pre-sentence detention.
15 There is only one ground of appeal relied on in the application for leave. In its terms, it is a complaint as to totality confined to the effect of the orders for cumulation made by Judge Barnett. In argument, however, the real thrust of complaint was that the head sentence imposed by Judge Barnett, when added to the head sentences imposed by the two other judges, resulted in an aggregate sentence with respect to the conduct on all three episodes that offended the principle of totality.
16 The convictions and sentences imposed by Judge Nicholson and Judge Wilmoth occurred after the offending dealt with by Judge Barnett. They are not, therefore, prior convictions. None the less, as I have said, the complaint concerning totality raised in this application is predicated upon analysis of the effect of aggregation of all three sentences.
17 The head sentences imposed by Judge Nicholson, Judge Wilmoth and Judge Barnett totalled eleven years and seven months' imprisonment. Although there was some initial uncertainty as to the total non-parole period which was imposed for offences on those presentments, it is now agreed that the total non-parole period imposed was six years five months and one day's imprisonment.
18 No complaint is made by reference to the aggregate non-parole period. The issue on the present application has been narrowed down to the contention that the aggregate sentence of eleven years and seven months' imprisonment offends the principle of totality.
19 Mr Grace submitted that when regard was had to the totality of the offending involved in the three presentments dealt with by Judges Nicholson, Wilmoth and Barnett, the head sentence of eleven years and seven months amounted to a crushing sentence which offended the principle of totality.
20 Mr Grace called in aid the statement of McHugh J in Postiglione v The Queen[1] that totality requires "an evaluation of the overall criminality involved in all the offences with which the offender is charged" and consideration of "the total criminality involved not only in the offences for which the offender is being sentenced but also in any offences for which the offender is currently serving a sentence".[2] Totality requires that the sentencer stand back to ensure that the sentence imposed as the last of a series provides in the aggregate "a just and appropriate measure of the total criminality involved".[3] But, as his Honour made clear, the necessity to reduce the final sentence in accord with that principle only arises where it must be done "in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences", citing R v Holder,[4] a New South Wales decision.
21 In the present case, the sentence of five years and three months' imprisonment imposed by Judge Barnett could not be described as "crushing", although that does not mean that the sentence might not still offend the totality principle when the aggregate of the sentences is considered. As to that distinction, see R v Barnes.[5] When, however, the totality of the criminality is considered, the sentences imposed on each of the three occasions can be seen to have been fair, in my opinion, and the principle of totality has not been offended by the sentence imposed by Judge Barnett.
22 For the purpose of assessing the complaint as to totality, it was necessary to consider the sentencing remarks by Judge Nicholson and Judge Wilmoth, and the hearing was adjourned in order for the court to obtain those, as we now have. In addition, counsel provided to us the reasons of Callaway JA in refusing an application for leave to appeal against the sentence imposed by Judge Nicholson.
23 Analysis of the three sentencing decisions reflects the seriousness and persistency of offending by the applicant since his release from prison after serving the sentence of six years and six months and the non-parole period of four years and six months which was imposed on 15 December 1995. Mr Grace submitted that the sentencing remarks of Judge Nicholson and Judge Wilmoth disclose their acceptance of the applicant as a drug addict, which counsel suggested resulted in him being "unable to deal with his addiction and adjust to life in the community" and to the "supporting of that drug addiction through trafficking in drugs". Mr Grace submitted that the reasons for sentence by Judge Barnett disclosed similar conclusions reached by his Honour, as did the reasons for decision by Callaway JA on the leave application.
24 Whilst it is true that each judge accepted that the applicant had a history of drug addiction and of attempts to wean himself off drugs, they all rejected the notion that the offending was merely that of an addict seeking to support his habit.
25 Judge Nicholson sentenced the applicant with respect to the trafficking of 11.8 grams of pure cocaine, the trafficable quantity being two grams. Her Honour noted that the applicant claimed to have committed the offences at a time when he and his family were struggling financially, as the applicant had no permanent employment after his release from custody in 1999. Her Honour noted that the applicant was a drug user at the time of these offences and had commenced using heroin again in late 2001, at a time of marital difficulty. A number of reports were tendered concerning the drug addiction of the applicant and, after a further hearing, a report of psychologist Mr Bernard Healey was tendered. Her Honour accepted that the applicant had tried to seek treatment for his heroin addiction and her Honour said that she took his efforts at rehabilitation into account. Her Honour, however, rejected the applicant's contention that his possession of the cocaine was for personal use and not in connection with the sale of the drug. Her Honour concluded that "there was nothing to support the fact that you had the narcotic substances for anything else but for the purposes relating to sale or commercial dealing". In sentencing the applicant as she did, her Honour noted that the maximum penalty for the offence was 25 years' imprisonment.
26 In her sentencing remarks of 15 December 2004, Judge Wilmoth noted that the offences which occurred on 3 February 2003 occurred while the applicant was on bail. He possessed multiple firearms. At his home, police found the keys to a Harley-Davidson motor bike, which he was licensed to drive, and drug paraphernalia. Her Honour noted that upon his release from prison in 1999 the applicant found it hard to get work and resumed drug use. Her Honour also noted attempts to overcome his addiction but observed that the offences were serious, as indeed they were.
27 Judge Barnett had regard to similar background factors urged in mitigation of sentence of the applicant as had been raised on the previous occasion. In particular, he noted that the applicant had suffered a serious injury to his arm in 1987 which restricted his employment as a carpenter. He noted the breakdown of his marriage. He noted, too, the applicant's self-medication with cannabis and subsequent expansion of his drug use to cocaine, methylamphetamines and heroin, and he noted that after his release in October 1999 the applicant had returned to drug use, having "difficulty of re-adjusting to post-incarceration life". His Honour noted that the applicant had undertaken programs to cure his drug addiction but without success, and accepted that the drug use "helped him cope with the psychological issues relating to four-and-a-half years in custody". His Honour paid proper regard to the material contained in a report of Mr Joblin. His Honour noted, however, that the trafficking matters with which he was concerned occurred whilst the applicant was on bail with respect to two separate episodes of offending for which he was due to be presented before the courts.
28 In sentencing the applicant, Judge Barnett expressly noted that he had taken totality into account in fixing both the head sentence and the new non-parole period.
29 Mr Grace submitted that particular weight should have been given to the factor of delay, the offence having been committed in 2003. He also submitted that the adverse and exponential impact of a lengthy sentence on the prospects of rehabilitation should be recognised. He cited West Australian authority, in particular Clinch v R[6] and Herbert v R.[7]
30 Insofar as the principles stated in those cases apply in this state, I am not persuaded that any error in those respects occurred in the sentencing process in this case. Given the distinct nature of the three episodes, the blatancy of the conduct involved on each occasion and the seriousness of each instance of offending, it is inevitable that significant orders as to cumulation would be made as between the sentences for each episode and that some order as to cumulation of sentences within each episode would also be appropriate.
31 In my view, no error has been shown in the cumulation orders that have been made by Judge Barnett, nor has the sentence imposed by him been shown to offend the principle of totality when regard is had to the offending over the three episodes and the sentences imposed by the three judges. Having regard to the range of prior convictions which existed at the time the sentences were imposed by Judge Barnett, the total effective sentence of five years and three months, of which eight months was ordered to be served concurrently with the sentence imposed by Judge Wilmoth, with a new minimum term of four years' imprisonment, should be regarded as modest rather than severe, in my opinion. His Honour properly weighed the factor of totality, in my view, and no error has been disclosed in the sentence imposed.
32 Accordingly, I would refuse the application for leave to appeal against sentence.