Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality - General principles - Whether sentence of imprisonment cumulative on another sentence offended against the principle.

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Vlek v R [1999] WASCA 1038, applied.

Judgment Number: [2010] TASCCA 8

1 On 27 February 2009, a magistrate sentenced the appellant to imprisonment for two years six months commencing on 29 November 2008, with a non-parole period of one year seven months.

2 On 30 October 2009, a judge sentenced him to imprisonment for five years six months cumulative upon the sentence imposed by the magistrate, with a non-parole period of three years. As a result, he is now serving cumulative sentences of imprisonment totalling eight years with a total non-parole period of four years seven months.

3 He appealed against the sentence of 30 October 2009 on two grounds. They are that the sentence was manifestly excessive, and that the learned judge failed to take adequate account of the totality principle.

4 It is necessary to consider the offences for which he was sentenced on each occasion, but before I do so, I refer to the totality of them. There were 119 offences in all, including 105 offences of dishonesty, one arson and eight unlawful injuries to property. The 105 offences of dishonesty were 10 motor vehicle stealing, one attempted motor vehicle stealing, 22 burglary, 15 aggravated burglary, 43 stealing, six unlawful possession or receiving, four obtaining goods by a false pretence and four dishonestly acquiring a financial advantage. Of the 105 offences of dishonesty, 85 were committed in September, October and November 2008 and the others between April and August 2008.

The offences for which the sentence of 27 February 2009 was imposed

5 The sentence imposed by the magistrate was for 56 offences committed between 10 April 2008 and 28 November 2008. There were 51 offences of dishonesty, together with one each of unlicensed driving, driving an unregistered vehicle, using an uninsured vehicle, breaching a family violence order and failing to appear. The 51 offences of dishonesty were seven charges of motor vehicle stealing and one of attempted motor vehicle stealing, seven burglary, seven aggravated burglary, 20 stealing, five unlawful possession or receiving, and four obtaining goods by false pretences. The 51 offences of dishonesty were committed on 13 or more different dates, between 10 April 2008 and 13 November 2008, 22 of them on 22 September 2008, three on 14 October 2008, two on 21 October 2008, and two on 13 November 2008.

6 According to the appellant's record, the offences of stealing and obtaining goods by false pretence concerned about $57,000 worth of property.

The offences for which the sentence under appeal was imposed

7 The sentence imposed by the learned judge on 30 October 2009 was for 63 offences. They were one arson, eight unlawful injury to property and 54 offences of dishonesty. The eight unlawful injury to property concerned damage caused in the course of burglaries or aggravated burglaries. The arson involved a residence the appellant burgled and from which he stole property. Concerned that he may have left DNA evidence behind, he destroyed the premises by fire.

8 The 63 offences were committed on about 11 different dates between 22 September and 28 November 2008. The 54 offences of dishonesty were three motor vehicle stealing, 15 burglary, 8 aggravated burglary, 23 stealing, one receiving and four dishonestly acquiring a financial advantage. The burglaries concerned motor vehicles. The aggravated burglaries concerned residences. The offences of dishonestly acquiring a financial advantage concerned his fraudulent use of a credit card he had stolen from a vehicle. The receiving charge concerned over 200 items of stolen property found in his possession on 4 November 2008.

9 The total value of the property stolen from eight residences was well over $50,000 and about 90 per cent of the property was not recovered. The total value of the property stolen from 14 vehicles was approximately $10,000, over half of which was not recovered. Damage caused in the course of burglaries was approximately $2,000. The arson caused $200,000 damage to the building and $50,000 damage to the contents. The householder had insurance cover of $190,000 only.

10 Many of the items stolen were of little value to the appellant, but their loss was of major significance to the victims. Items included keys, personal papers, driver's licences and a passport. The cost to one resident of replacing all the locks and keys to his residence was $2,500.

11 At the time of the offences the accused was either 32 or 33 years of age. He had an appalling record, particularly for dishonesty, but also for other offences. When 16, he was ransacking a home when the owner unexpectedly arrived and grappled with him. A melee ensued and he attempted to rape her. In April 1993, he was sentenced to a total of four years' imprisonment for the attempted rape and other offences arising out of that occurrence. He returned to prison on 1 October 1998 when he was sentenced to six months' imprisonment for aggravated burglary. The elderly owner of the property, the subject of that crime, suffered devastating injuries, but he was acquitted on a charge of causing grievous bodily harm. The explanation for the acquittal, postulated by the sentencing judge, was that the jury could not be satisfied beyond reasonable doubt that there was not a co-offender who might have caused the injuries. It was observed by the learned sentencing judge in this case that the circumstances brought into focus the risks inherent in a burglary where the offender is interrupted, risks that are among the reasons for the gravity of a burglary of a residence being recognised by the crime being called aggravated burglary.

12 On 24 October 2007, the appellant was sentenced to 12 months' imprisonment, three months of which were suspended, for a number of offences, many of which involved dishonesty.

13 In mitigation, counsel said that the appellant had a serious drug problem. He had been using amphetamines for many years. He and his girlfriend were addicts and it took between $600 and $900 a day to feed their addiction. In late 2007 to early 2008, following his release from prison, he made a failed attempt to conform with a court mandated drug diversion program. He then returned to offending behaviour from April to November 2008, for which he was sentenced by the magistrate and the judge.

14 He had been in custody since 29 November 2008. At the time of the plea 11 months later, he was about halfway through the Pathways Program, a 100 hour program designed to treat prisoners with a history of criminal conduct and substance abuse. It involved three sessions of 2½ hours each week. Counsel informed the learned judge that the appellant intended to complete the program and any other programs that might be offered to him to deal with his addiction.

15 Counsel asked the learned judge to take account of the magistrate's sentence, which the appellant was then serving, and to have regard to the totality principle when sentencing. I will say more about that principle shortly.

16 The learned judge observed that the appellant was entitled to a reduction in the sentence by reason of his pleas of guilty, although the reduction would not be as significant as it might have been if many of the charges had been based on his admissions. The charges laid against him were the result of detection. It was clear from the Court's file that a lot of police time and effort had gone into investigating his criminal conduct.

The totality principle - was the sentence manifestly excessive?

17 It is not the appellant's case that the sentence imposed by the learned judge was manifestly excessive when viewed alone; it is that the sentence was manifestly excessive when regard is had to the sentence he was already serving and the so-called totality principle.

18 The principle is well recognised. It was summarised by King CJ in the Court of Criminal Appeal of South Australia in R v Rossi, unreported 20 April 1988: "There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect." It serves to ensure that an offender is not subjected to "'a crushing sentence' not in keeping with his record and prospects". Thomas, Principles of Sentencing, 2nd ed (1979) at 57 - 58; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 304.

19 The principle may apply in a number of circumstances. For example, if a judicial officer is imposing a series of sentences then notwithstanding that each sentence has been properly calculated and each properly made cumulative on the others, nevertheless the aggregate of the sentences should be reviewed and consideration given to whether the aggregate is just and appropriate.

20 It also applies to situations where one sentence is being imposed for multiple offences, and to cases such as the present, where an offender is being sentenced at a time when he or she is serving a sentence of imprisonment. Postiglione v R at 308. That was explained by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 at 466: "When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

21 Counsel for the appellant relied on the following statement in the judgment of Anderson J in the Court of Criminal Appeal of Western Australia in Vlek v R [1999] WASCA 1038:

"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 unreported, CCA SCt of WA, 14 June 1993, especially per Ipp J. Furthermore, as was pointed out in Mill (1988) 166 CLR 59, 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."

22 Counsel for the State did not dispute any of the matters of principle to which reference has been made.

23 For the appellant, it was pointed out that there was a considerable overlap of the respective periods of offending for which he was sentenced by the magistrate and by the judge. For example, of the offences of dishonesty for which the magistrate sentenced him, 29 were committed in the same period of a little over two months during which he committed all of the offences of dishonesty for which the learned judge sentenced him, and another 19 were committed in the period of two months prior to that. It was also pointed out that substantially the same types of offences were before the magistrate and the judge.

24 It was argued for the appellant that given the facts, including that during his time in prison, he was working towards overcoming his addiction to drugs, which had caused so much of his offending behaviour, the sentence imposed by the learned judge was manifestly excessive and demonstrated that his Honour had not given sufficient weight to the totality principle.

25 Counsel for the State submitted the contrary. He argued that the sentence of the learned judge complied with the totality principle and was not manifestly excessive.

26 I have reviewed sentencing levels in the criminal court over the last 20 years, particularly for burglaries, aggravated burglaries and the like, and have concluded that without regard to the magistrate's sentence, a sentence of imprisonment for up to six years would have been appropriate for the crimes for which the learned judge sentenced the appellant. The arson was an appallingly wicked and selfish crime committed with wanton disregard for the rights of others and caused substantial damage and inconvenience. Up to three years' imprisonment for that crime alone was justified.

27 The question that arises in the appeal is whether a total of eight years' imprisonment, with a non-parole period totalling four years seven months, was a manifestly excessive punishment for all of the offences for which the magistrate and the learned judge sentenced him, or whether it offended the totality principle.

28 I have concluded that the combined effect of the two sentences cannot be categorised in that way. The impact of the two sentences was certainly a severe one for offences that were largely ones of dishonesty, but the level of his criminality was considerable. He had served sentences of imprisonment before and could not have been out of prison for many months when he commenced this series of offences. A substantial period of imprisonment was demanded for all of his offending and I am not satisfied that in total, the sentences imposed by the magistrate and the judge were plainly excessive, or offended the principle.

30 I have had the opportunity of reading the draft reasons of the Chief Justice. I agree with those reasons and the outcome he proposes.

31 I have read the draft reasons for judgment of the Chief Justice. I agree with those reasons and I would also dismiss the appeal.