File No : PE 16271 of 2005, PE 16272 of 2005, PE 16273 of 2005, PE 16274 of 2005

Criminal law - Sentencing - Offences of burglary and unlawful wounding - Cancellation of parole allowed under earlier parole term - Ambiguity as to length of unexpired balance of earlier term - Whether Magistrate erred in application of totality principle - Whether new sentence of imprisonment imposed should be concurrent with or cumulative upon existing term - Application of totality principle - Appeal allowed - Turns on own facts

Criminal Appeals Act 2004 (WA), s 14(d)

Criminal Code (WA), s 301(1), s 401(1)(b), s 401(2)(b)

Sentence Administration Act 2003 (WA), s 7(3)

Sentencing Act 1995 (WA), s 6, s 88

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

McLean v The Queen [1999] WASCA 209

Mill v The Queen (1988) 166 CLR 59

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

1 The appellant, Daniel Lawrence Reid, has appealed against a sentence imposed upon him pursuant to a plea of guilty in the Magistrates' Court at Perth.

2 The question raised by the appeal is whether the learned Magistrate erred in his assessment of certain matters bearing upon his decision to make the subject sentence cumulative upon an existing term. This brought with it an issue concerning the application of the totality principle.

3 At a hearing before his Honour Magistrate Malone in the Magistrates' Court at Perth on 15 April 2005 the appellant was charged with four offences. The appellant was represented by counsel at that hearing.

4 First, the appellant was charged that on 9 March 2005 at Wembley without consent in the dwelling of a Michelle Rene Brinkworth he committed an offence, namely, stealing property valued at $3500 contrary to s 401(2)(b) of the Criminal Code (WA) (16271/05).

5 Second, he was charged that on 9 March 2005 at Wembley without consent he was in the dwelling of a Robert Anthony Butler with an intent to commit an offence therein contrary to s 401(1)(b) of the Criminal Code (16272/05).

6 Third, he was charged that on 9 March 2005 at Wembley he unlawfully wounded one Ulrich Ziemann contrary to s 301(1) of the Criminal Code (16273/05).

7 Fourth, he was charged that on 9 March 2005 at Wembley without consent he was in the dwelling of Noel Ridley Giblett and committed an offence therein, namely, he stole property valued at approximately $30 contrary to s 401(2)(b) of the Criminal Code (16274/05).

8 I note in passing that by s 301(1) of the Criminal Code any person who unlawfully wounds another is guilty of a crime and is liable upon summary conviction if the offence is committed in circumstances of aggravation to imprisonment for 3 years and a fine of $12,000 or in any other case to imprisonment for 2 years and a fine of $8,000.

9 By s 401(1)(b) a person who enters the place of another without the other person's consent with intent to commit an offence is guilty of a crime and is liable if the place is ordinarily used for human habitation upon summary conviction to imprisonment for 3 years and a fine of $12,000. By s 401(2)(b) a person who commits an offence in the place of another when in that place without the other person's consent is guilty of a crime and is liable if the place is ordinarily used for human habitation upon summary conviction to imprisonment for 3 years and a fine of $12,000.

10 The appellant pleaded guilty to the subject charges. There is no need for me to review at length the statement of material facts that was put to and accepted by the learned Magistrate. In essence, the appellant entered the subject premises and committed the burglaries as alleged. At 37 Essex Street he was confronted in the rear garden by a glazier who had attended 42 Essex Street in relation to the previous burglary. The appellant stabbed the complainant in the hand with a screwdriver and ran from the scene. At about 3.33 pm the police located the appellant in the area with a bag containing items that had been removed from the subject premises. He was then arrested and charged.

11 It was common ground at the 15 April hearing that the appellant was on parole at the time of commission of the subject offences. It was put to the Court by counsel for the appellant upon the basis of his then instructions that the appellant's parole had been cancelled. It was said that in respect of the earlier offences he had been sentenced to imprisonment for a total of some 6 years of which he had served 2 years 8 months with the result that he had "about three and a half years to go". Counsel then added this (TS 5):

"So there's still a very substantial period of time left to serve as I understand it. Although he is eligible for parole on that sentence, so presumably could become eligible again in the future, on that sentence at least."

12 There was some discussion about the need to obtain a pre-sentence report in the course of which the learned Magistrate summarised his concerns as being "the question of eligibility for parole and also of course for totality". The learned Magistrate then made these observations (TS 6):

"HIS WORSHIP: I mean ordinary circumstances, I - - one would - - we're looking at about 18 months for the burglary in which the items were stolen, perhaps 15 months for the others they were relatively less and something like 12 months for the unlawful wounding. The facts don't at this stage reconcile necessarily with some backward swing as he was running away. But out of that ordinarily I would have made the - - one of the 18 months and the 12 months for the unlawful wounding cumulative and the other two burglaries concurrent, which is a total of 30 months, take off a third for that and I'd be looking at 20 months. But if one adds 20 months on to 3½ years, that may start to come close to offending the totality - - "

13 Put shortly, then, at that stage his Honour clearly had in mind that after allowance of a discount of one-third for the guilty plea and other mitigating factors an effective aggregate term of 20 months' imprisonment ought to be imposed subject to an application of the totality principle. It seems that the Magistrate then decided to obtain a pre-sentence report as this was likely to have a bearing upon the grant of eligibility for parole and the application of the totality principle. The matter was then adjourned to a further hearing to be held on 6 May 2005.

14 A pre-sentence report dated 28 April 2005 was obtained and forms part of the evidentiary materials before me. It appears from that report that the appellant was born on 6 April 1977 at Perth and was therefore 28 years of age. He was a single, unemployed man who had been convicted on 15 April 2005 of two offences of burglary, one offence of burglary with intent and one offence of unlawful wounding.

15 The report noted that the appellant's previous response to supervision had been poor. It was said that at the time the subject offences were committed the appellant was subject to a parole order, having been released from Karnet Prison on 15 February 2005 with a parole expiry date of 6 August 2006. The Manager of Rockingham Community Justice Service had suspended parole on 10 March 2005; that is, at the time of his arrest in respect of the subject offences.

16 The conditions of the appellant's parole order had been that he reside at Serenity Lodge and undertake the residential rehabilitation programme to address his substance use. In fact, he spent some 19 days in the programme before being evicted for consuming alcohol. On his eviction he went to reside at his father's home in Wembley. He claimed that his decision to commit the subject burglary offences was in order to obtain funds until his next Centrelink payment, as his father was of limited means. The report went on to describe his personal circumstances. The report suggested that the appellant would benefit from parole.

17 When the matter came back to the learned Magistrate at the further hearing on 6 May 2005, his Honour referred to the pre-sentence report and accepted that the appellant should be made eligible for parole. His Honour then observed that according to an earlier note he had made he understood that the appellant "owed 3½ years" but that upon his reading of the report that had turned out "not to be so" (TS 2). He said that in his view the time that the appellant owed the Parole Board did not have a significant impact on sentencing as such. His Honour accepted that he need to take totality in account but "it's not of such a length that I should be overly concerned about it": (TS 3).

18 His Honour then went on to observe that the appellant seemed to be currently serving a prison term with an earliest release date of 6 August 2006 but he did not think and could not see how that could be right. He foreshadowed that he was going to sentence the appellant to a cumulative term of imprisonment but make him eligible for parole.

19 During the course of various exchanges, the prosecutor referred to the current sentence and said he was going to suggest that any charges or any time imposed should also be cumulative on the current sentence because even though the appellant owed the Parole Board "X number of days" (TS 5) that was the appellant's fault because he offended whilst on parole. The learned Magistrate then made these observations (TS 5):

"HIS WORSHIP: Well, that's what I have in mind. I baulked last time because, and I say if I don't say this correctly then it might have been mistaken communication. I was told that Mr Reid owed 3½ years. Now that's a very long time and I was baulking at how much I should add to that. As it turns out - -

PROSECUTOR: That sounded quite a lot.

HIS WORSHIP: - - it's nowhere near that and I therefore accept what you're saying, that adding a cumulative term or even two cumulative terms on to that doesn't produce what could be described as a crushing sentence. And even so I'm making two of the burglaries concurrent anyway."

20 It was against this background that on 6 May 2005 the learned Magistrate imposed, in respect of the four subject offences before him, an effective aggregate term of imprisonment of 20 months with eligibility for release on parole. This sentence was to be served cumulatively upon the earlier sentence. I note, for the sake of completeness, that as to the burglary charge number 05/16271 (stolen property of $3500) he imposed 18 months' imprisonment cumulatively on the existing sentence; as to the burglary with intent to commit charge 05/16272 he sentenced the appellant to 15 months' imprisonment concurrent; as to the unlawful wounding charge 05/16273 he imposed 2 months' imprisonment cumulative on charge 05/16271 and the existing sentence; as to burglary charge 05/16274 he imposed 18 months' imprisonment concurrent.

21 It was common ground at the hearing before me, having regard to a letter dated 23 January 2007 from the Sentence Information Unit, that on 4 November 2002 the appellant had been sentenced on indictment number 1609/2002 to a total sentence of 5 years 6 months' imprisonment to commence on 22 June 2002 for two offences of robbery whilst armed; one offence of receiving and one offence of stealing. The appellant was granted eligibility for release on parole.

22 On 15 February 2005 the appellant was released on parole. On 29 April 2005 (after the commission of the subject offences) the Parole Board cancelled the appellant's parole order, requiring the appellant to serve the remainder of the sentence with a maximum date of 7 August 2008 in the event that the appellant did not receive a further parole release order.

23 The Sentence Information Unit advised that the appellant was liable for 1269 days between release to parole on 15 February 2005 and sentence expiry on 7 August 2008. The amount of breach days owed by the appellant was then adjusted for "clean street time", time served and a one day breach. Accordingly, the appellant owed a total of 1198 breach days which he was required to serve until sentence expiry on 7 August 2008 or release on parole.

24 As I have indicated, on 6 May 2005 the learned sentencing Magistrate imposed a total sentence of 20 months' imprisonment with eligibility for release on parole. This sentence was to be served cumulatively upon the sentence of 4 November 2002.

25 The imposition of the 20 month term increased the appellant's maximum date to 8 April 2010. The appellant's earliest eligibility for parole date was 6 March 2006, pursuant to s 7(3) of the Sentence Administration Act 2003 (WA).

26 It appears, then, that when imposing sentence his Honour had not taken into account the fact that parole was cancelled and the appellant was required to serve the remainder of the sentence imposed on 4 November 2002. In other words, the sentence expiry date was 7 August 2008 which would leave about 3¼ years to be served at the time these matters were being debated at the hearing before the learned Magistrate on 6 May 2005. This was close to the estimate of 3½ years to be served which had been provided to the Magistrate by counsel some weeks earlier.

27 It is apparent (possibly because he was misinformed by the reference to the earliest release date of 6 August 2006 mentioned in the pre-sentence report) that the learned Magistrate came to the conclusion that the estimate of time to be served was "nowhere near" the estimate of 3½ years that had been provided to him previously. It seems that he was therefore not minded to give further consideration to the totality principle and proceeded to impose the new term of 20 months' imprisonment which was to be served cumulatively upon the existing term. The consequence was, as indicated above, that the appellant then became liable to serve an overall term of imprisonment expiring on 8 April 2010.

28 By an application for leave to appeal dated 19 October 2006 the applicant sought leave to appeal upon the ground that the learned Magistrate had made a mistake about the appellant's personal circumstances that affected the sentence he was given. Leave to appeal on that ground was allowed by an order made by Blaxell J on 15 November 2006.

29 I noted at the hearing before me that the respondent by its written submissions accepted that as the learned sentencing Magistrate was mistaken as to a fact highly relevant to the exercise of his sentencing discretion, the discretion could not be said to have been appropriately exercised.

30 The appellant was unrepresented at the hearing before me. It therefore took a little while to draw out the point he wished to make. In the course, of discussion at that hearing I summarised what was being put to me by the appellant in the following way (TS 5):

"... But what it seems to come down to is this: that as the magistrate - and I'm talking in slightly round figures so as not to get confused. But as the magistrate sat in court on 6 May 2005 it seems that the truth of the matter on my calculations is that if at about that date, that is on 29 April 2005, you owe 1197 breach days, divide that by 365, it might be said that in fact you had 3.2 years to serve which it might be said is not all that far away from the three and a half years the magistrate had been first talking about.

So summarising, what seems to have happened is the magistrate said, 'I think the appropriate sentence all in all adding up and allowing a discount for the plea of guilty is 20 months. I the magistrate would be reluctant to add that to an existing term of three and a half years because that might seem too severe and might offend the totality principle.' However, now that I am told by the pre-sentence report as he perceived it that it's, to use his words, nowhere near three and a half years, well then, 'I the magistrate don't really think the totality principle comes into play and I'll stick with the 20 months.'

Now, I think if I understand it correctly from what you have put up and what the respondent has put up, you are saying, 'Well, that's where the magistrate was in error because in fact the time remaining to be served was actually 1197 days converting to about 3.2 years which is pretty close to the three and a half years and if he really thought 20 months would be too much added to three and a half years it follows that he was in error in presuming that the 3.2 years is nowhere near the three and a half years he had been speaking of.'

All of this suggests that if he had firmly fixed in his mind that you had 3.2 years yet to serve then he may have lessened the imposition of the 20 months he had arrived at. That is your point on appeal essentially. Is that right?"

31 The appellant confirmed that this broad summary of the position was correct. He submitted also that, having regard to the totality principle and the matters before the Magistrate, the appropriate disposition was for the proposed further term of 20 months to be made concurrent with (not cumulative upon) the unexpired balance of the earlier term. Counsel for the respondent did not oppose the appeal and accepted that the appellant should be re-sentenced in the manner contended for. Nonetheless, I must look carefully at the circumstances underlying the appeal in order to arrive at my own conclusion.

32 Before doing so, let me turn to certain legal principles bearing upon an appeal of this kind.

33 Appeals of this kind are now covered by the Criminal Appeals Act 2004 (WA). By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision or remit the case for rehearing. By s 14(d) of the Act it is open to the Court to set aside the sentencing Magistrate's decision and exercise a power to re-sentence the appellant.

34 It is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discussion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to effect the decision made: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

35 Section 6 of the Sentencing Act 1995 (WA) recognises that a sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.

36 Section 88 of the Sentencing Act provides that an offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he has yet to serve unless the sentencing court orders that the subsequent fixed term is to be fixed cumulatively or partly concurrently with the earlier fixed term.

37 It is apparent from Pearce v The Queen (1998) 194 CLR 610 at 623 that an appropriate sentence is to be fixed for each offence followed by a consideration of cumulation or concurrence and then by questions of totality.

38 The totality principle enables a court to mitigate what strict justice would otherwise indicate if the overall sentence to be served is inappropriately long or too crushing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307. The key factor is proportionality with a view to ensuring that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved, not only in respect of the offences for which the offender is being sentenced but also as to any offences for which the offender is currently serving a sentence: McLean v The Queen [1999] WASCA 209.

39 The decided cases establish that an appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences: Mill v The Queen (1988) 166 CLR 59.

40 Let me now return to the circumstances of the present case.

41 The learned Magistrate was clearly of the opinion that the subject offences had to be viewed seriously. However, he was minded to discount the proposed sentence by one-third in order to bring to account the appellant's plea of guilty and other mitigating factors. He seems to have accepted also that the offences occurred within a comparatively short space of time, and the wounding was related to these events. Against this background, an effective aggregate term of 20 months for the subject offences was appropriate. This does not appear to be disputed by the appellant.

42 To my mind, his Honour was also correct in feeling obliged to give consideration to the totality principle, bearing in mind that the applicant's parole had been cancelled and the balance of the earlier term had yet to be served.

43 However, it is at this point that the learned Magistrate fell into error, as a consequence, it seems, of not being fully and accurately informed as to the position concerning the earlier term. He appears not to have clearly understood that the consequence of providing for the proposed effective aggregate term of 20 months to be served cumulatively would be that the overall term would not expire until 8 April 2010, being almost 5 years ahead. It is apparent from McLean's case (supra) that consideration must be given to the totality principle in these circumstances, but the learned Magistrate, possibly because he was misled by the wording of the pre-sentence report as to the nature of the release date did not dwell upon that aspect of the matter. He failed to give proper consideration to the totality principle.

44 Against this background, I consider that the learned Magistrate erred and the appeal must be allowed. What then is the appropriate order when one turns to the question of whether the appellant should be re-sentenced or the matter referred back to the Magistrates' Court?

45 To my mind, notwithstanding the respondent's stance on the appeal, one should not too readily assume that the appropriate disposition is to provide for the further term in respect of the subject charges to be served concurrently in the manner allowed for by s 88 of the Sentencing Act.

46 However, in the end, in the circumstances of this case, and having regard to the notion of proportionality underlying the totality principle, I consider that orders to that effect should be made. The offences arose out of financial need and were committed impulsively over a short space of time. As at the sentencing day on 6 May 2005 the appellant in fact had over 3 years of his earlier term yet to serve as a result of his parole being cancelled. To my mind, the totality principle required that the proposed sentence of 20 months not be added to it but, rather, be served concurrently with the balance of the existing term.

47 The appeal will be allowed and consequential orders made accordingly. Put shortly, the individual sentences for each offence and the effective aggregate term of imprisonment of 20 months with eligibility for parole is confirmed. That term is to be commenced on 6 May 2005 and is to be served concurrently with the balance of the appellant's earlier term, being the effective aggregate term of 5 years 6 months' imprisonment that commenced on 22 June 2002. I will hear from the parties as to whether any further orders or directions are required.