It is unnecessary to go to other provisions in the Act, of which there are well over a dozen, which speak of sentences being served "cumulatively on" another sentence, another term, or upon any period of imprisonment. Apart, arguably, from the latter example, each of the provisions assumes in my opinion that there is a sentence or term, which must be read as meaning a whole sentence or whole term, upon which the cumulation is to take effect. Nowhere in the legislation is it suggested that cumulation may be effected on parts of terms; nor, in my opinion, would that be appropriate, for in each case it is desirable to have at least a starting point which is ordinarily taken to be the most serious offence. Indeed, in R. v. MDB[16] Batt, J.A., with the concurrence of Vincent, J.A. and myself, affirmed that that was the desirable course.
39 In the absence, to my knowledge, of any direct authority on the subject, I would therefore conclude that it is not merely inappropriate but that it is wrong to sentence by way of directing the cumulation of parts of terms upon each other. Prima facie each term of imprisonment has to be served, unless suspended[17], until parole (if any) is granted. Where, however, there are a number of terms imposed at the same time, the statutory presumption in ordinary cases is that those terms will commence and be served at the same time, i.e., concurrently, unless the judge directs to the contrary. If the judge does direct to the contrary, that will have the result, in the case of total cumulation, that the cumulated term will be served upon the expiry of the earlier term, although it is more frequently the case that only part of a second or other term will have to be served beyond the duration of the first term. That does not mean, however, that only part of that term has to be served or that the term itself is being reduced to just a proportion of its original term. Rather the proper assumption is that the balance of the partly cumulated term is treated as having been served concurrently with the first term. Thus the whole of that second or other term still must be served but the prisoner is entitled to treat the uncumulated part of the term as being served concurrently with the first or "base" term. In a sense the provisions are directed more to the time when the various terms are treated as having commenced and served, as is done more explicitly pursuant to the rather different Commonwealth provisions on sentencing contained in the Crimes Act 1914 (Cth.). Thus each term in this State will in fact be served, albeit that some or parts of some will be served at the same time as others. The scheme of the sentencing legislation, as would be the case at common law, therefore requires that every term of imprisonment imposed by a judge shall be served, in each case subject to the many provisions relating to the mode of service. It follows that, whenever a sentence is imposed for more than one offence, not only must all terms be served in one way or another, but there must always be a base term[18] which will be the basis or point of reference for all directions relating to concurrency or cumulation. That is what the judge failed to do in the present case.
40 The new ground 5 having been made out, it is strictly unnecessary to examine further the applicant's complaints as to the method adopted in respect of cumulation of the various sentences imposed on him, for it will be necessary for this Court to resentence the applicant. I would add, however, that much of the difficulty in approaching the original ground 2 and any apparent excess of cumulation largely stemmed from the fact that there was not a base term upon which the directed periods of cumulation were to be added. One was in effect starting with a base term of 12 months being the period to be cumulated from counts 3, 9, 11 and 29. Although no full term was cumulated and all but three periods of cumulation were half or less of the original term[19], there were many orders for cumulation, which might, at first glance, have suggested excess and a failure to comply with the principle of totality. Moreover, 22 directions for cumulation for periods varying from one to 12 months suggest one of two things: first, that there has been a failure to impose suitable terms of imprisonment for each of the counts, contrary to what has been said to be the preferable practice, at least since DPP v. Grabovac[20]; or secondly, that there has been a failure to apply the principle of totality, thus leading to an excessive sentence. But the real error, as I perceive it, is neither of these matters but is the failure to choose a head or base sentence to be served in the ordinary way and to direct concurrency or cumulation to the appropriate extent such as to produce a just sentence in conformity with sentencing principles. If one of the three longer terms had been chosen, then, in order to produce the same sentence overall, shorter periods of cumulation should have been directed.
41 The problem is largely artificial because of the primary error. The vice in the individual sentences and the periods of cumulation is more to be attributed to inadequate individual terms. If appropriate terms had been decided upon, in accordance with what was said in Grabovac and similar later decisions, then far smaller periods of cumulation should have been directed both in respect of each relevant term and generally, in order to satisfy the principal of totality. It might be said that the individual terms reflected a more benevolent view of the applicant's offending (and indeed his counsel explicitly stated that none was excessive), but the overall "total effective sentence" belies that view of this very serious series of handling offences.
42 Counsel for the applicant was warned in the course of the hearing that the Court might take this view of the individual terms imposed and that his client should be aware that those terms may well be increased if the Court thought it proper to set aside the sentences and re-sentence the applicant. It was not suggested that a higher total effective sentence (or non-parole period) would be imposed; nor do I think that it would have been appropriate, especially having regard to the judge's findings. Indeed, as will be seen, although the sentence should not be viewed as manifestly excessive, I consider that, as a result of the required re-sentencing, the applicant should receive a slightly lesser sentence than was in fact imposed by the learned judge.
Re-sentencing
43 Because of the specific matters already mentioned, the task of re-sentencing the applicant is not a straightforward matter. Every sentence and every order for cumulation must be reconsidered. Factors relevant to some counts are not relevant to others. One must make due allowance for the judge's findings which were favourable to the applicant and to his guilty pleas including his various intimations of intention in relation to the handling offences, as well as the need to avoid an unduly "crushing" sentence. On the other hand one must have regard to the scope of his offending, his offending on bail and after arrest and his past record, as well as the three Magistrates' Court charges agreed to be taken into account, especially the property offence relating to well over a thousand stolen items. However, I am prepared, without entering upon details of his earlier life in a "dysfunctional family" and his descent into a pattern of dishonesty and now wholesale dealing in stolen goods, to accept the judge's finding that the applicant is not without hope of reform and that there was ample evidence to indicate that he "could lead a reformed life if he chose to do so". Both his letter to the judge and the other material seem to disclose an intelligence above normal for this kind of offender and it is unfortunate that the Court must also recognise that that intelligence has been largely misapplied up to the present.[21]
44 In general terms it is difficult, for the most part, to go beyond the amount of stolen property, whether measured in value or quantity, or both which came under the control of the applicant, as the judge said he had done. Unfortunately that does not appear to be the basis for all of the sentences imposed. All offences involving $1,000 worth of goods or less attracted only one month's imprisonment and all involving $45,000 worth of goods or more attracted 24 months' imprisonment, but in between there was a good deal of inconsistency. For example, nine months was imposed for count 7, involving about 21 items worth in the order of $2,000, but for the later count 13, a term of only one month was imposed for handling some 25 items or so worth $4,686. Again a six months' term seems to have been chosen as a common tariff for a range of offences involving goods worth in a range of $9,445 down to $1,350 worth of goods, whenever they were committed. There were other inconsistencies in the orders for cumulation. Of course these inconsistencies were minor and would not ordinarily form the basis for setting aside sentences for a large group of offences such as these, which often justify a broad-brush approach. They are here noted merely as unexplained inconsistencies which should be avoided on resentencing.
45 The task of sentencing, as already stated, was and is by no means easy in the present case and it would not be desirable to lay down any immutable approach for fixing appropriate terms of imprisonment in cases such as this. Here the volume and value of goods handled seem the only consistent basis on which to act, subject to a few variations. I would see the offences committed after the applicant was first arrested and when he was on bail as being the more serious, if distinction needs to be made. Likewise the commission of the two offences which in part included "handling" the subject goods, by organising their disposition by phone, after he was in custody was even more to be condemned. That aspect of his offending was audacious and defiant. On the other hand, the sources of the stolen goods or where they were found seem largely irrelevant to the present case.
46 Generally the individual sentence imposed by his Honour were too lenient, apart from the slightest of the offences. In accordance with Grabovac I would impose heavier terms, but would reduce the total effective sentence by directing much greater concurrence. Overall, by reason of the need to observe the principle of totality, I believe the original total effective sentence was a little too high, having regard to the applicant's plea (and his earlier indications) and to the favourable view the judge reached as to the possibility of rehabilitation. Nevertheless the various terms will have to reflect the seriousness, duration and systematic nature of his offending and, for the offences committed after release on bail, s.16(3C) of the Act requires a different approach, at least as to cumulation, but in any event the applicant's brazen contempt for the law should be recognised. Clearly both specific and general deterrence are here both relevant.
47 The various offences on the principal presentment will be dealt with[22] in two groups, as follows. As to the earlier offences of handling up to 24 April 2001, one month's imprisonment should be imposed on count 5; three months' imprisonment should be imposed on each of counts 2 and 6; nine months' imprisonment should be imposed on count 7; 15 months' imprisonment imposed on count 4; 18 months' imprisonment on count 8; and 2 years and 6 months (30 months) on count 3, relating to the trailer which was obviously used by the applicant to ship the stolen goods around. As to count 1, which related to handling over a long period that straddled events both before and after the first arrest, I would impose a 12 months' term of imprisonment. Coming then to the later counts, committed after the applicant was released on bail, I would impose the following terms: one month's imprisonment on count 12; 6 months' imprisonment on each of counts 16, 22 and 25; 9 months' imprisonment on each of counts 17 and 21; 12 months' imprisonment on each of counts 14, 19, 23 and 26; 18 months' imprisonment on each of counts 13, 15, 18, 20 and 24; 24 months on each of counts 10 and 27; 2 years and 9 months (33 months) on each of counts 11 and 29; and 3 years (36 months) on count 9, the latter being one of the four most serious of the counts but having the added element that the applicant sought to deal with those 207 or so stolen items by phone while he was in custody. For the theft of the prime mover (count 28) the applicant should be sentenced to 24 months' imprisonment and for the count of possessing cannabis the fine to be imposed should remain at $200.
48 On the separate presentment charging attempted burglary, one must bear in mind the 12 months' term of imprisonment imposed on the co-offender Audsley which on his application to this Court has not been held to be manifestly excessive, nor in breach of the rules of parity: indeed I have there stated that it was modest. To the extent that parity is here relevant, one can see little difference in the respective roles of the offenders on the limited evidence as to the commission of the offence, but in the case of the applicant the Court knows that he was already party to a sophisticated and complex handling scheme or business, into which the proceeds of the burglary could easily have been fed. On the other hand the applicant pleaded guilty, even if at the last moment, whereas Audsley put the State to the expense of a trial. I would impose a term of 12 months' imprisonment for this offence, of which it was a serious example, being obviously planned and carried out[23] with some skill, even if unsuccessful.
49 As to cumulation there are further difficulties. As already stated, the cumulated periods amounting to 7 years and 9 months directed by the judge were clearly excessive, although in strictness all terms from count 9 to 29 inclusive should, by reason of s.16(3C) of the Act, have been cumulated. Although each offence should be recognised, so far as practicable, but, as they all formed part of one (long) episode of offending, it is not essential to do so by cumulation, as long as there is a fair recognition of the additional misdoing of the offender. For this purpose a choice of terms from which cumulation is to be directed must be made, even if the choice be eclectic.[24] The other terms are to be served concurrently, but that does not mean, as already observed, that they have been ignored or are not being served. For present purposes I would propose that relatively small proportions of terms be cumulated (or ordered not to be served concurrently as the case may be), so that the "cumulation" will be far less than that directed by the judge. In this case, however, they will be added (in effect) to the appropriate base term, being the three-year term resulting from the sentence on count 9.
50 To this end cumulation should be directed (in effect, as in form counts 10 to 29 will require non-cumulation directions to conform with s.16(3C) but so as to give effect to the principle of totality), in each case on the sentence imposed upon count 9 and upon each other, as follows: two months of the terms imposed on each of counts 1, 4, 13, 18, 20 and 27 and of the term imposed for the offence of attempted burglary; three months of the terms imposed on each of counts 10, 15 and 24; four months of the term imposed on count 28 and six months of each of the terms imposed on counts 3, 11 and 29. The other sentences imposed on counts 10 to 29 will be directed to be served concurrently with the sentence imposed on count 9, i.e., those imposed on each of counts 12, 14, 16, 17, 19, 21, 22, 23, 25 and 26. The total effective sentence
will therefore be 6 years and 9 months, a reduction of one year.
51 As to the non-parole period, there is little reason to differ in general terms from the judge's decision to make a direction permitting a substantial period to be served on parole, if that is thought appropriate. Nevertheless, as the term itself is somewhat reduced, there should be a very modest alteration to the difference between the total effective sentence and the period to be served before the applicant becomes eligible for parole. That should be reduced by three months, so that I would propose that the applicant serve 4 years and 9 months before becoming eligible for parole. The other orders, directions and declarations should be confirmed but there will be a new declaration as to the time served.
52 The application for leave to appeal should be granted, the appeal allowed, the sentences imposed in the County Court should be set aside and the applicant should be re-sentenced in the manner already stated.