Criminal Code (WA), s 333, s 391, s 393, s 401(2)

Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 33(a)

Offenders Community Corrections Act 1963 (WA), s 8(3), s 38(5), s 38(6), s 44(1),(2)

Sentence Administration Act 1995 (WA) s 92(3), s 93

Sentencing (Consequential Provisions) Act 1995 (WA) s 93(3)

Leave granted, appeal allowed, total sentence reduced from 19 years 9 months to 16 years 9 months

1 MALCOLM CJ: On 22 May 2000 the appellant was convicted after a trial lasting some six days of three counts on an indictment containing some seven counts. The offences of which he was convicted were those charged as counts (2), (3) and (6) on the indictment. Count (2) alleged that on 4 January 1997 at Willetton the appellant stole from one John Cetinkaya with actual violence the sum of $580, a digital mobile phone and keys the property of Mr Cetinkaya and that at the time the appellant used personal violence to him contrary to s 391 and s 393 of the Criminal Code. The second offence was that charged in count (3), namely, that on 4 January 1997 at the same place the appellant unlawfully detained Mr Cetinkaya contrary to s 333 of the Code. The third was count (6) on the indictment which was a count of aggravated burglary under s 401(1)(a) of the Code, namely, that on 4 January 1997 at Willetton the appellant, one Pringle and one Righetti entered the place of Mr Cetinkaya without his consent with intent to commit an offence therein. Two circumstances of aggravation were alleged, namely, that the appellant, Mr Pringle and Mr Righetti were armed with a dangerous weapon, namely, a knife and that they were in company with each other.

2 The offences of which the appellant was convicted were respectively robbery with violence for which the maximum is imprisonment for 20 years, kidnapping for which the maximum is 10 years and aggravated burglary for which the maximum is 20 years.

3 The appellant was sentenced to imprisonment for 4 years in respect of the robbery with violence, 5 years for the deprivation of liberty, and to 7 years and 9 months for the aggravated burglary. The sentences were made concurrent but the 7 years and 9 months sentence was ordered to be served cumulatively upon the term of imprisonment the appellant was already serving. No order for eligibility for parole was made. The appellant thereafter applied for leave to appeal against this sentence, and the application first came on for hearing on 17 July 2001 before a court constituted by myself, Anderson and McKechnie JJ. The original grounds of the application were amended by the substitution of the following grounds on that date:

"The learned sentencing Judge erred in law in that the total sentence imposed was excessive for the reasons particularised as follows:

a. the sentence for the aggravated burglary was excessive given

i. the Applicant's antecedents

ii. the presentence report

b. the learned sentencing Judge acted upon wrong principles in that he

i. took into account the facts giving rise to the kidnapping in aggravation of the burglary (AB21), and based the sentence in part upon speculation (AB22)

ii. took into account the earliest release date (albeit wrongly calculated) when what should have been taken into account were the 2212 breach of parole days 'owing' in fact constituted part of the totality of the term the Applicant was obliged by statute to serve.

4 As the matter developed on 17 July 2001, it became clear that there was insufficient information regarding the precise status of all the sentences imposed on the appellant. There was doubt about the period that he would have to serve in prison on account of the sentences then, and now, before this Court in the light of the breach of parole and the balance of the prior sentence to be served as a result of the latest series of offences. By consent, the hearing was adjourned to a date to be fixed to enable the Director of Public Prosecutions to file an affidavit setting out the impact of the subsequent events on the length of time the appellant would be required to serve, and the prospects of his eventual release on parole. The hearing was resumed on 22 October 2001 by a Court differently constituted to the extent that McKechnie J was replaced on the Court by Einfeld AJ. In the circumstances, the hearing before the Court as constituted on 22 October 2001 was by consent regarded as a recommencement of the hearing.

5 So far as ground 1(a) is concerned, it was contended that the total sentence imposed was excessive, among other things, because, as stated in ground 1(b)(ii), the learned Judge wrongly calculated the appellant's earliest release date by taking no account of 2,212 breach of parole days "owing" by the appellant, which the appellant was then obliged by statute to serve. It was submitted that, if the breach days were taken into account together with the credit for time spent in custody, the effective term which the appellant would be called upon to serve in respect of all the offences was a total of 19 years and 9 months. Given that the learned sentencing Judge adopted a starting point of 9 years for the aggravated burglary, it was contended that when the totality principle is taken into account, the sentence was far too long, as it represented an effective head sentence of closer to 21 years.

6 At the time of sentencing the appellant was aged 40 years. He had then served some 5 and a half years of the sentence originally imposed. It is relevant that the current offences were committed while the appellant was on bail, but not on parole.

7 The appellant had a significant criminal record commencing with offences for common assault in 1980 and a range of relatively minor offences, the most serious of which was that on 30 October 1984 he was fined $500 for being concerned in the organisation of gaming. Approximately one month later he was convicted of being found on the premises of a common gaming house. There were a number of subsequent convictions for that offence in 1985 and 1986. In 1987 he was convicted of aggravated indecent assault in the District Court and sentenced to imprisonment for 12 months. In 1987 and 1988 he was convicted of possessing an unlicensed firearm and a number of other minor offences.

8 On 24 April 1989 he was convicted in the Supreme Court on two counts of conspiracy to possess heroin with intent to sell or supply for which he was sentenced to imprisonment for 12 years on each count to be served concurrently. In Marinovich, Romeo and Ricciardello (1990) 46 A Crim R 282, this Court granted the present appellant leave to appeal against the sentence of 12 years imposed upon him for two offences of conspiracy to possess heroin with intent to sell or supply contrary to s 33(a) and s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). There were two conspiracies, one involving obtaining possession of 1 kg of heroin, and another involving a conspiracy to acquire a further 20 kg of heroin. So far as the appellant is concerned, Kennedy J and I said in a joint judgment at 321:

"Counsel for Ricciardello submitted that the learned judge was not entitled to take into account the consequences of drug dealing, including corruption, violence and death which frequently result from very large heroin distributions which the conspirators hoped to achieve. It was contended that these matters had led to excessive sentences being imposed. In our view the learned judge was entitled to take into account the consequences which could ensue if the agreement was carried out. These were relevant both to the gravity of the offence as measured by the penalties imposed by Parliament and to the purpose of deterring would-be offenders.

We consider that the approach adopted in the present case is consistent with the general principles relating to sentencing in drug cases referred to in Robertson (unreported, Court of Criminal Appeal, WA, No 121 of 1989, Library No 7915, 10 November 1989).

Having regard to the total quantity involved in the two conspiracies we are unable to conclude that a total sentence of imprisonment for 12 years was excessive in all the circumstances. The sentencing discretion which rested in the learned judge will only be interfered with by this Court where it has been shown that the discretion has miscarried: House [1936] HCA 40; (1936) 55 CLR 499 at 504; Cranssen [1936] HCA 42; (1936) 55 CLR 509.

In our opinion, it has not been shown in this case that the discretion in any way miscarried."

9 The appellant was released on parole on 8 November 1994 pursuant to a parole order to expire on 8 November 1996. Until that time he was still regarded as serving the sentence or sentences to which the parole related: Offenders Community Corrections Act 1963 (WA), s 44(1).

10 On 28 August 1995 while on parole he committed, and on 18 July 1997 he was convicted of, armed robbery for which he was sentenced to imprisonment for 6 years cumulatively upon any other sentence which he was required to serve. No order for eligibility for parole was made.

11 The appellant appealed against the sentence imposed for the armed robbery on the ground that he should have been made eligible for parole, but this Court refused him leave to appeal: Ricciardello v The Queen, unreported; CCA SCt of WA; Library No 980524; 14 September 1998. Pidgeon J, with whom Wallwork and Murray JJ agreed, said at 3 - 4:

"The offence occurred on 28 August 1995 and was committed by three persons who knew that a 19 year old woman would regularly visit the bank to obtain for her employers, a taxi co-operative, large sums of money. The money was the cash float. The instigator of the offence was one Jeffree. He approached a man named Williams and asked him to participate for a payment of money and some cheap drugs. The instructions Williams ultimately received was to spray the woman's eyes with a pepper spray so he could not be identified and then to take the bag containing the money. He was to place the bag in a car being driven by Jeffree and was to continue walking when he would be picked up by another car driven by the applicant.

The offence was in fact carried out in this manner subject to Williams not actually spraying the employee. At about 11 am the employee withdrew $55,511.45 in cash from a bank in Hay Street, West Perth. She put the cash into a backpack and went to her employer's car. She put the backpack on the back seat intending to drive the car to her employer's office. She was approached by Williams who asked her the way to Thomas Street. She saw him take a can of pepper spray from his back pocket and point it at her. She thought it was a can of mace so she raised her arm in protection and ran back into the bank screaming. Williams took the backpack containing the money from the rear of the car and ran to Jeffree's car and placed it in that car. He continued walking and the applicant drove up to him and picked him up. Prompt action by a bystander and a bank teller caused them to see Williams getting into the applicant's car and to inform the police. The police stopped the car being driven by the applicant and arrested the applicant and Williams."

12 In imposing the sentence of 6 years, the learned sentencing Judge had said that the appellant was involved in the planning of the offence and was the driver of the getaway car. The armed robbery was described by the sentencing Judge as "planned carefully" and "a very professional and efficiently executed operation". An order for parole eligibility was refused for the following reasons:

"In determining whether to make a parole eligibility order, I have concluded from the serious nature of the offence, from the circumstances of its commission and from your antecedents, that very likely you will offend again upon your release whether or not you are subject to parole. You are sentenced to imprisonment now for 6 years, the term to take effect cumulatively on the balance of the sentence in respect of which you have been released on parole. I make no parole eligibility order."

13 After he had served some 4 years of the 6 year sentence, he would have recommenced serving his parole term whether in custody or on parole. The commission of the offences presently before this Court thus did not constitute a breach of parole, in the sense that the days thereafter were not regarded as having been served because of the breach. He was credited for half of the days up until the date that he re-offended in respect of what is commonly known as the "clean street time".

14 When the appellant was released on parole on 8 November 1994, after serving some 5 and a half years of the 12 year term for the heroin conspiracies, he had 7 and a half years left to serve. If he had successfully completed 2 years on parole, he would have been treated as having fully served the sentence, but he breached a condition of his parole by committing the armed robbery.

15 Section 8(3) of the Offenders Community Corrections Act relevantly provided that a term does not elapse while a prisoner is not in lawful custody unless the Act itself or another written law provides otherwise. In accordance with s 44(2) of the same Act, a prisoner who has been released to parole and is sentenced to a term of imprisonment for an offence committed during the parole period has that parole cancelled. In this case the appellant was required to serve the unexpired portion of his term of imprisonment. That period was the period between his release on parole and the expiry date of the sentence, namely the period from 8 November 1994 to 23 April 2001, a total of 2,358 days.

16 Section 93(3) of the Sentencing (Consequential Provisions) Act 1995 provided for breach of parole by the commission of an offence during the parole period by allowing for the operation of s 44(4a) and (4b) of the Offenders Community Corrections Act to determine the number of days to be credited against the sentence represented by time spent in the community on parole without committing a breach of parole conditions. Section 92(3) of the Sentence Administration Act 1995 enabled the transition of sentences under the previous regime to be brought under the later Act.

17 By virtue of s 44(4a) of the Offenders Community Corrections Act one half of the period completed on parole is regarded as time served in the circumstances of this case. Subsection (4b) defines the period completed on parole as the time beginning when the prisoner was released on parole and ending on the day on which the offence which brought about the cancellation occurred. In the present case the relevant period was from 8 November 1994 to 28 August 1995, a total of 292 days. The appellant was entitled to a credit of one-half of that period on account of "clean street time". As a consequence of the aggregate sentence of 7 years and 9 months imposed for the current offences, the appellant's total current sentences amount to 13 years and 9 months in respect of which he is not eligible for parole, to be served cumulatively on the 2,212 breach days.

18 Section 38(6) of the Offenders Community Corrections Act makes provision for fixed terms of imprisonment. Subsection (5) defines "fixed term" as a term of imprisonment in respect of which a minimum term is fixed and no order for parole was made under s 37A. Subsection (5) also defines "mandatory period" as a minimum term, non-parole period or an aggregate of them. Subsection (6) provides that the appellant must serve the outstanding sentences in the order, first, any fixed term or terms, secondly, any mandatory period and, thirdly, unless and until released on parole any term or terms after the expiry of the mandatory period. The effect for this case is that the appellant is required to serve the cumulative fixed terms prior to serving his 292 "breach days". He will, however, be eligible for release on parole on 27 January 2007 when he will have completed the service of the two cumulative sentences.

19 It was common ground that when sentencing the appellant the learned Judge in the District Court did not take into account the 2,212 days which is the equivalent of 6 years and some 21 or 22 days. It follows that ground 1(b)(ii) of the grounds of appeal has been made out. Even though the appellant could be released on parole at any time after the earlier finite sentence had been served, that is a matter for the Parole Board. Consequently, the 2,212 "breach days" form part of the total sentence.

20 Ground 1(a) contended in substance that the sentence for the aggravated burglary of 7 years and 9 months cumulative and without eligibility for parole was excessive. The circumstances under which an appeal court will interfere with a sentence imposed in the exercise of discretion are well-established. In Thompson v The Queen (1992) 8 WAR 387 at 391 - 392, Pidgeon and Owen JJ and I said:

"The task of an appeal court in a review of this nature is clear. The principles are well known. The appellate court will not simply substitute its own opinion as to the appropriate sentence for that of the sentencing authority. Before the court will intervene, it must be demonstrated that the sentencing judge fell into error. In this regard, the comments of Malcolm CJ in Weng Keong Chan v The Queen (1988) 38 A Crim R 337 at 342 are apposite:

'This Court will only interfere with a sentence that is manifestly inadequate or excessive, where, for instance, the trial judge has acted on a wrong principle or overlooked or undervalued or over-estimated or misunderstood some salient feature of the material before him: Skinner v The King [1913] HCA 32; (1913) 16 CLR 336; House v The King [1936] HCA 40; (1936) 55 CLR 499; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: see R v Morse (1979) 23 SASR 98.' "

21 See also Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ; and Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538 at [3] - [4] per Gleeson CJ and Hayne J; at [20] - [26] per Gaudron and Gummow JJ; and at [57] - [62] per Kirby J. Counsel for the appellant accepted that before this Court will intervene, it must be demonstrated that the learned Judge fell into error in the terms defined in Thompson and Chan (1989) 38 A Crim R 337 at 342 per Malcolm CJ.

22 Counsel for the appellant also accepted that in view of the recent increases in the maximum penalties for burglary, the courts must impose longer terms of imprisonment: Pezzino v The Queen, unreported; CCA SCt of WA; Library No 970308; 17 April 1997 per Franklyn J at 3 - 4 and White J at 10 - 11. The increasing prevalence of robbery offences has led to a firming up of sentences, giving greater weight to deterrence and punishment and less weight to the antecedents and other matters personal to the offender: cf R v Peterson [1984] WAR 329 at 332 per Burt CJ (with whom Smith and Pidgeon JJ agreed). Similarly, the range of sentences for burglary especially for aggravated burglary of homes has been firmed up in recognition of the increased prevalence of the offence which has been a cause for community concern. There is a considerable public interest in the protection of the safety and sanctity of homes. While circumstances vary, aggravated burglary is capable of causing considerable alarm, fear, anxiety and stress to victims. Consequently, many aggravated burglaries must be regarded as serious offences: R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159 at [5] per Malcolm CJ (with whom Ipp and White JJ agreed).

23 It was submitted in this case, however, that the starting point of 9 years for the aggravated burglary was excessive in all the circumstances. This was compounded by the failure of the learned Judge to take into account the additional 2,212 days of the original sentence which remained to be served, which meant that the total sentence was excessive. It was further submitted that when taking into account the totality of the sentences imposed, including the period "owed" to the Parole Board of something just over 6 years, account should be taken of the fact that the severity of a term of imprisonment increases exponentially as it increases in length: Jarvis v The Queen (1998) 20 WAR 201.

24 In sentencing the appellant the learned Judge referred to the offences of robbery with violence, kidnapping and aggravated burglary and the maximum penalties for each of those offences. His Honour then went on to say:

"The jury by their verdict have accepted the evidence of Mr Cetinkaya that you presented at his business premises, Willetton Smash Repairs, on 4 January 1997 and there perpetrated an assault upon him in the course of stealing some of his property.

It is not clear what property the jury found was stolen because they were directed that it did not matter whether it was one of the three items, the cash, the phone or the keys, or more. Provided the jury was satisfied that at least some of that property was stolen, then that element of the offence was made out. Apart from this, the verdict clearly indicates that the jury has accepted that unannounced and unexpected you presented yourself at Mr Cetinkaya's business premises on 4 January 1997 and began to harass him.

During the course of that harassment you perpetrated personal violence to Mr Cetinkaya and took some of his property, at least on the jury verdict and having regard to the questions they asked during the course of their deliberations, the keys to his workshop and house. It was put on your behalf that the violence that you perpetrated upon Mr Cetinkaya was relatively modest, but I think that the photographs exhibit 1 show the position to be otherwise.

In my opinion, you offered serious violence to Mr Cetinkaya by beating him with your fists causing the damage that is depicted in the photographs, resulting in him bleeding to a significant degree, certainly such that in wiping his face with his hands blood came off onto his hands, which in turn later, as can be seen, was sufficient to stain the door handles to the entry of his home and further to stain his sorts [sic shorts], as can be seen in exhibit 1.1.

With regard to the second conviction, the facts behind this are that you left Mr Cetinkaya's business premises at Willetton Smash Repairs in circumstances where the jury's verdict leaves a little unclear. Certainly the jury acquitted you of count 3 on the indictment wherein the Crown had alleged that you had kidnapped Mr Cetinkaya in order to take him to Mr Righetti's house at 78 Apsley Road in Willetton, and were further undecided in respect of count 4 on the indictment, which was that at that house you assaulted Mr Cetinkaya with actual violence in order to rob him.

As I say, this leaves the position of how you got from Mr Cetinkaya's business premises to Righetti's house somewhat uncertain. However, at Righetti's house and at some part of the time from Righetti's house to an Ampol service station and from an Ampol service station to Cetinkaya's house and from Cetinkaya's house back to his business premises at Willetton Smash Repairs the jury found that you had unlawfully detained Mr Cetinkaya. In other words, at some time during that journey you had kidnapped Mr Cetinkaya and, worse, you had done so aided and abetted by your co-offenders, Mark Donald Pringle and Michael Angelo Righetti.

I think it is fair to infer from the jury's verdict that it involves an acceptance of the evidence that you, in company with Pringle and Righetti, were taking Cetinkaya to his house with a view to stealing money from him; so much is gleaned from the jury's verdict in respect of count 6 which I will come to in a moment. It does not take a great deal of imagination to anticipate the terror that you must have visited upon Mr Cetinkaya by your conduct in kidnapping him. Eventually he escaped from you at his workshop, hiding under a car in a street some distance away, and then after you left the scene finding his way to a St John Ambulance depot where he asked an officer to telephone the police.

As to the aggravated burglary, the jury by its verdict accepted that you in company with Pringle with Righetti went with Cetinkaya to his house and entered his house without his consent with a view to committing an offence in the house, namely to steal from him. It was given in evidence that your motivation in wanting to steal from Cetinkaya was that you were short of money for lawyers' fees. How you came to believe that Mr Cetinkaya had money is not clear. It seems to me that the evidence discloses that you had no prior involvement with Mr Cetinkaya at all and that you came to his premises in the belief that he carried with him or held a large amount of money.

Whether you had come to this conclusion of your own accord or whether, as I suspect, somebody had said to you that they suspected Cetinkaya carried large amounts of money and you decided to act upon this criminal intelligence, I don't know. I don't think it much matters. It is fair to say that all these offences were premeditated and carried out by a practised hoodlum, as I have no doubt you are.

It seems to me that you have deliberately chosen the low life, a life of crime. It would be wrong to call you the mastermind of these crimes because that would be tautologous, but you were the prime mover. They were all committed at your instigation for your purposes. There is no suggestion in any of the evidence that either of your accomplices Pringle or Righetti were going to benefit from their participation in the kidnapping and aggravated burglary.

The effect of these crimes upon Mr Cetinkaya can only be imagined. I do not have a victim impact statement, but I did see him give evidence. Whilst some criticism can be offered of him that he exaggerated the degree of his physical abuse and the jury were unconvinced by his evidence of the presence and use of knives, there was no doubt that he was seriously assaulted, kidnapped, taken to his own home which you forced him to enter, and from there taken to his workshop. He must surely have feared for his life.

I have looked in vain for any facts surrounding the commission of these offences which could be said to mitigate their seriousness. There is no sign of any consideration for your victim, no compassion, no backing off, and even as he was giving evidence you were swearing foul-mouthed abuse at him from the dock."

25 The learned Judge then reviewed the appellant's personal circumstances. He was born on 1 October 1961. Thus, as at the date he was sentenced on 22 June 2000 he was aged 38. He gave his occupation as "professional gambler". He left school after 4th year high school. He has a brother and a sister. His Honour noted that while his brother was supportive, his mother was very ill and his father had suffered three serious strokes. The learned Judge went on to say:

"Otherwise, all that can be said for you is that you appear to have chosen a life of gambling and there are many convictions which reflect this and undoubtedly this has contributed to your life of crime. You appear never to have married or have had children. Your adult record began early in 1980 when you incurred three convictions for common assault, one resulting in you being sentenced to 3 months' imprisonment. At the time these offences were committed, you were probably only 18 or 19 years old.

Then you began to accumulate a number of driving offences, gambling offences, resisting arrest, possessing an unlicensed firearm and in 1987 in this court you were convicted of aggravated indecent assault and sent to prison for 12 months. There are a number of offences of being in possession of unlicensed firearms and then in 1989 you hit the big time, as they are wont to say, being convicted on two counts of conspiring to possess heroin with intent to sell or supply, for which you were sentenced to 12 years' imprisonment on each count to be served concurrently. You were made eligible for parole.

After your release from prison, obviously having learned nothing from that experience, you again commenced to offend the traffic laws, seemingly thinking they don't apply to you, and on 18 July 1997 you were convicted of one count of armed robbery for which you were sentenced to 6 years' imprisonment without parole. The offences I am dealing with were committed after you were out of your parole period but whilst you were on bail for the armed robbery.

Looking at other sentencing considerations there is an increasing prevalence of violent crime in our community, calling for the need for both a general deterrent and in your case a specific deterrent having regard to your past criminal behaviour and needless to say there is a need to punish you for your crimes.

Your conduct in the commission of these offences turning upon a complete stranger to kidnap him with a view to robbing him demonstrates a strong need for the protection of the community.

As to your co-offenders, you will shortly see that I have dealt with them quite differently from you. I intend to deal with you far more harshly than with them for a variety of reasons, the first of which is that you were the undoubted ringleader. Additionally at various points during your trial you disavowed any interest of your co-offenders in your pursuit of the complainant. Further your co-offenders' antecedents are quite different from yours."

None of these facts or approaches to the sentencing process were in any way challenged by the appellant.

26 The learned Judge took into account that, when the appellant was sentenced in this Court by Heenan J on 18 July 1997 for the armed robbery, his Honour had been aware that the appellant had been on remand for the present offences from 15 January to 18 July 1997, a period of 6 months and 3 days. Heenan J also knew that the appellant had been in custody for the offences of which he was to be sentenced in the District Court and did not take that time into account.

27 So far as the robbery with violence was concerned, the learned Judge placed that offence at about the middle of the range, saying:

"The personal violence you offered was with your fists. I repeat: the jury rejected any suggestion that knives were used. It caused extensive bleeding to the complainant and you stole at least his keys, there being evidence of that, and perhaps his phone. There was evidence from the complainant that you took his wallet but the jury's verdict is uncertain and the question it asked indicates that it was most likely agreed on the keys alone having been stolen from him.

There is no doubt that the complainant was badly affected by your treatment of him and that this is a most serious crime. For this offence I sentence you to 4 years' imprisonment.

For the offence of kidnapping, count 5 on the indictment, I have no hesitation in placing this offence in the upper half of the range of seriousness of offences of this type. The detention had been preceded by your act of violence towards Mr Cetinkaya, resulting in him having been beaten, and followed, as it was, by your kidnapping of him, this time in company with Pringle and Righetti, the complainant must have been terrified for his life. Indeed he said he was afraid for his life. This is not difficult to imagine.

You took him from Righetti's house in Willetton to a service station and then to his own house and then back to his business premises. All of this must have taken some hours. For this offence, I sentence you to 5 years' imprisonment to be served concurrently with the term of imprisonment I imposed in respect of count 2 on the indictment.

Looking now to count 6 on the indictment, that of aggravated burglary, this too was a most serious offence. You forced the complainant into his own home in company with your accomplices with a view to robbing him of money you believed he had there. He was kidnapped and taken to his home and taken back to his business premises from his home.

You had no idea whether his wife and children would have been there and, indeed, on his evidence he was terrified that his wife and children were going to see him with you in the state that he was in and he begged you to allow him at least to wipe the blood from his face so that his family wouldn't see him. It seems to me that it was at least a possibility that you were going to take this man back into his own home to rob him in the presence of his wife and children. This has to be regarded as one of the most serious acts of aggravated burglary to come before the courts.

I would have thought that the starting point for your sentence for this crime was 9 years' imprisonment, having regard to all the circumstances that I have mentioned. Having spent 6 months in prison, however, I reduce that by 15 months in order that it might be seen that you have obtained the full benefit of the time already spent in custody so that there is no suggestion that I have under-compensated you for that time. This means that your sentence for this offence is 7 years and 9 months' imprisonment."

28 The learned Judge went on to consider the application of the totality principle. On his Honour's calculation the effect of the sentence of imprisonment for the aggravated burglary, after giving credit for 15 months on account of time in custody was the sentence of 7 years and 9 months to be served concurrently with the sentences for the robbery with violence and kidnapping. His Honour noted that if the sentence of 7 years and 9 months was made cumulative on the sentences the appellant was already serving, this would represent a total sentence of 13 years and 9 months imposed within a period of 3 years. His Honour concluded that, looking at the total degree of criminality involved:

"... it is my opinion that a sentence of 6 years' imprisonment imposed for the armed robbery and then a total of 7 years 9 months' imprisonment for the three offences of which you have been convicted before me do not, in my opinion, offend the totality principle and their effect would not be crushing in the sense with which that term is ordinarily understood, and accordingly I order that the total period of 7 years 9 months' imprisonment be served cumulatively upon the term of imprisonment you are presently serving."

29 In fact, when account is taken of the additional 2,212 "breach days", or 6 years and 22 days (give or take a day), the total of the sentences the appellant is required to serve (without taking into account the issue of parole) is 19 years 9 months and 22 days.

30 Looked at separately, it is not possible to hold that any of the individual sentences imposed on the appellant were individually excessive. In Hambridge v The Queen [1999] WASCA 50 the total sentence imposed for an aggravated burglary in company whilst armed and also involving an offence of deprivation of liberty attracted a total sentence of imprisonment for 7 years. The offence was committed at night, in a residence, and involved the use of a replica gun and personal violence. In McLean v The Queen [1999] WASCA 209 the total sentence imposed was 6 years reduced to 5 years for two offences of aggravated burglary in company.

31 In my opinion, however, the circumstances in the present case were such that the totality principle should have been taken into account in respect not only of the sentences imposed, but the period of 6 years and 22 days which represents the breach period. I have reached that conclusion notwithstanding that the offences for which the appellant was sentenced by the learned Judge were serious offences. The robbery with violence involved the appellant beating the complainant with his fists, causing extensive bleeding. The deprivation of liberty was preceded by the beating and was done in company with two other men, so that the complainant must have feared for his life. The deprivation of liberty continued over a lengthy period of time.

32 The aggravated burglary involved the complainant being forced into his own home by the appellant and his two accomplices so that they could steal the money believed to be there. The appellant had no idea whether the complainant's wife and children would be at home. The appellant was the leader of the group of three men and instigated the offences for his own purposes. He showed no regard for the victim.

33 A pre-sentence report dated 20 June 2000 refers to the appellant's criminal record as a 20 year history of offending, including public disorder, driving and gambling offences combined with violent assaults, dealing in heroin and armed robbery. Though still relatively young, the appellant has spent some 9 and a half years in custody since 1987 and returned to prison on 16 January 1997. It is noted that while imprisoned the appellant has been convicted of numerous prison offences mainly related to use of cannabis in respect of which he has eight convictions as at 20 June 2000, the most recent offence occurring on 31 May 2000 subsequent to the appellant's conviction in relation to the current three offences. On two occasions in 1998 and 1999 he tested positive to heroin/morphine compound. He did attend a Substance Use course in prison in the past, but this had no modifying effect on his behaviour. He has, however, been pro-active in the Prisoner Support Group. The pre-sentence report indicated that the Court may wish to consider him favourably for parole on his present charges although, it should be noted, he has already spent a very considerable time in prison for other offences and the prospects of successful rehabilitation of offenders into the community tends to diminish with longer sentences. The report concluded that the appellant still showed some potential for positive maturation, if given the chance.

34 In my view, it cannot be said that the sentence for the aggravated burglary was excessive given the appellant's antecedents and the pre-sentence report. There is no substance in ground (a).

35 Ground (b) contended that the learned sentencing Judge acted upon wrong principles in that he took into account the facts giving rise to the kidnapping in aggravation of the burglary and the sentence imposed was based in part upon speculation when what should have been taken into account were the 2,212 breach of parole days in the context of the totality of the term of imprisonment the appellant was obliged to serve.

36 When sentencing for the offence of kidnapping the learned Judge said:

"For the offence of kidnapping, count 5 on the indictment, I have no hesitation in placing this offence in the upper half of the range of seriousness of offences of this type. The detention had been preceded by your act of violence towards Mr Cetinkaya, resulting in him having been beaten, and followed, as it was, by your kidnapping of him, this time in company with Pringle and Righetti, the complainant must have been terrified for his life. Indeed, he said he was afraid for his life. This is not difficult to imagine.

You took him from Righetti's house in Willetton to a service station and then to his own house and then back to his business premises. All of this must have taken some hours."

37 While it may well be that in sentencing the appellant, the learned sentencing Judge wrongly took account of the fact that the detention had been preceded by the violence, I am quite unpersuaded that the sentence of imprisonment for 5 years for deprivation of liberty was in any way excessive.

38 There was a related contention in ground (c) that contended, in effect, that the total of the sentence was excessive and infringed the totality principle. While none of the sentences looked at individually were excessive, the impact of the additional 6 years and 22 days means that the total of all the sentences the appellant is now required to serve is 19 years and 9 months. I consider this term to be excessive and that it is appropriate to reduce the total to 16 years and 9 months by the reduction of the sentence for the aggravated burglary to 4 years and 9 months.

39 I am of the opinion that there is sufficient positive material to justify this Court in interfering with the exercise of discretion by the learned sentencing Judge not to make an order for eligibility for parole. In reaching this conclusion I have taken full account of the contents of the pre-sentence report. The appellant's record, however, including his conduct when he was last released from prison, does not supply any sufficient reason to order eligibility for parole.

40 I would grant leave to appeal and allow the appeal to the extent that the sentence for the aggravated burglary be reduced from 7 years and 9 months to 4 years and 9 months.

41 ANDERSON J: I have read the judgment of the Chief Justice and respectfully agree with it. I wish to comment only on the submission made on behalf of the appellant that a sentencing court must approach the determination of an appropriate sentence on the basis that the severity of a term of imprisonment "increases exponentially as it increases in length". This is a submission which is now commonly made in sentencing appeals in this Court, invariably without any expatiation. It appears to have its provenance in Jarvis v The Queen (1998) 20 WAR 201. In that case, there was a reference in all three judgments to the totality principle. In his judgment, Ipp J said at 207:

"What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length."

" ... I would with respect expressly concur in the view of Ipp J that the explanation for the fact that to apply the totality principle in such circumstances will generally effect a reduction in the total term, is to be found in the fact that 'the severity of a term of imprisonment increases exponentially as it increases in length'."

43 I would respectfully regard these observations as obiter dicta. They state a proposition which I do not regard as self-evident and, so far as I have been able to discover, cannot be found in the leading texts on the theory of sentencing. With the greatest respect, I cannot subscribe to it.

44 I do not consider it to be the law that Judges must sentence on the basis that the severity of a sentence increases exponentially as it increases in length. The totality principle does not, in my respectful opinion, spring from or depend on any such thesis. The totality principle is, I believe, but an aspect of the sentencing process which recognises that if the sentencing court mechanically hands down successive sentences with respect to a series of offences, the resulting aggregate might punish the offender excessively even if each individual sentence is just. The principle of totality simply requires the court to remember that "the totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with": Larsen v The Queen (1989) 44 A Crim R 121 per Badgery-Parker J at 125. See also R v Todd [1982] 2 NSWLR 517 per Street CJ at 519 - 520; Mill v The Queen (1988) 166 CLR 59 at 63.

45 As Street CJ said in Todd (loc cit) it is probably not possible to lay down the general principle any more specifically.

46 EINFELD AJ: I agree with the orders proposed by the Chief Justice for the reasons his Honour gives.