File No : JO 5687 of 2009, JO 5688 of 2009, JO 5689 of 2009, JO 5690 of 2009, JO 5691 of 2009, JO 5692 of 2009, JO 5693 of 2009, JO 5694 of 2009, JO 5695 of 2009, JO 5696 of 2009, JO 6232 of 2009, JO 6233 of 2009, JO 6234 of 2009, JO 6235 of 2009, JO 6236 of 2009, JO 6237 of 2009, JO 6238 of 2009, JO 6239 of 2009, JO 6240 of 2009, JO 6241 of 2009, KH 1252 of 2008, KH 1374 of 2008, KH 1375 of 2008, KH 1376 of 2008, KH 1378 of 2008, KH 1963 of 2008

Criminal law - Sentencing - Appeal against sentence for aggravated burglaries, doing criminal damage and stealing committed with co-offenders - Sentence also included result of activation of portion of suspended sentences - Application of parity and totality principles - Failure of sentencing magistrate to backdate sentences

Criminal Appeals Act 2004 (WA), s 14

Sentencing Act 1995 (WA), s 80, s 87

Dunks v The State [2009] WASCA 82

'I' (a child) v State of Western Australia [2006] WASCA 9

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

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

R v Cox (1996) 66 SASR 152

Royer v The State of Western Australia [2009] WASCA 139

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

1 In May 2009, Mr Rodenburg-Hill, Daniel James Moyes and Stephen James Hughes-D'Aeth all appeared before Magistrate Lawrence in Joondalup Magistrates Court for sentencing for offences most of which they committed together over the period from mid-February 2009 to early March 2009. Each of the three had pleaded guilty. For most of the offences for which they were sentenced, including most of those they committed together, the three received sentences of imprisonment. Their sentences of imprisonment represented for each of Mr Rodenburg-Hill and Mr Moyes a total effective term of imprisonment of 18 months, to be served immediately, while Mr Hughes-D'Aeth's sentence of imprisonment was 12 months, suspended for a period of 18 months.

2 Mr Rodenburg-Hill now appeals against his sentence of imprisonment. The grounds for his appeal are two.

3 One ground is that his sentence was more burdensome than that of Mr Hughes-D'Aeth, and the same as that for Mr Moyes, both of whom were convicted on more charges than Mr Rodenburg-Hill faced.

4 The other of Mr Rodenburg-Hill's grounds of appeal is that the eight days he says he spent in custody on remand in relation to the charges on which he received sentences of imprisonment were not taken into consideration in sentencing him.

5 McKechnie J of this court gave Mr Rodenburg-Hill an extension of time for his application for leave to appeal and granted that leave, on the grounds I have referred to.

6 Before turning to those grounds, I should note a matter Mr Rodenburg-Hill brought up towards the end of hearing before me. He stated he had told police in his video recorded interview that 'he was there', but that he had not committed at least a number of the offences, telling his co-offenders 'not to do it because it was stupid', yet 'I still got charged with it' (20 October 2009, ts 44). He stated that he had pleaded guilty because of what he had been told by the police and the prosecution.

7 As I indicated at the hearing, Mr Rodenburg-Hill's appeal for which he obtained leave on an extension of time was against sentence, not conviction. After hearing from counsel for the WA Police, I indicated I considered I was not in a position to treat the present appeal as one also against the relevant convictions after pleas of guilty. However, I urged Mr Rodenburg-Hill to seek legal advice concerning whether or not to apply for leave to appeal against the relevant convictions notwithstanding his pleas of guilty (see Criminal Law in Western Australia, [9560.10] - [9560.20]).

8 I turn now to the grounds for the present appeal against sentence.

The first ground: sentencing comparisons between the three offenders - the applicable principles

9 Mr Rodenburg-Hill's first ground directs my attention to two comparisons with his total effective sentence. One is with his co-offender, Mr Hughes-D'Aeth, who received a less severe total effective sentence than Mr Rodenburg-Hill did, while being sentenced for more offences. The other comparison is with his co-offender, Mr Moyes, who received the same total effective sentence Mr Rodenburg-Hill did, while also being sentenced for more offences.

10 Counsel for the WA Police directed my attention to the parity principle in respect of this ground. He did this in view it seems of the fact that most of the offences for which the three offenders were sentenced were the same.

11 The principle of parity is well settled. It is that as between the sentences co-offenders received there should not be 'a marked disparity which gives rise to a justifiable sense of grievance': 'I' (a child) v State of Western Australia [2006] WASCA 9 [65] (Steytler P). The learned President went on to explain that formulation by reference to the authorities of Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, R v Cox (1996) 66 SASR 152 and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 as follows [65]:

For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive: Lowe, at 624, per Dawson J. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently: ... Cox ..., per Doyle CJ, and Postiglione, at 301, per Dawson and Gaudron JJ. In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance.

12 However, there is a qualification, or perhaps a further elaboration, of the parity principle which is also well settled, and which counsel for the WA Police referred to. It is that parity, while it might require a sentencing judge to be more lenient than that judge might otherwise have been, does not require that judge 'to be so lenient as to shock the public conscience by imposing a sentence which is entirely disproportionate to the offence': 'I' (a child) [66] (Steytler P). What this means for an appeal court is explained by the learned President as follows [67], [68]:

In Lowe, at 614, Mason J accepted that a court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate. However, what was there said by his Honour is not authority for the proposition that, in the case of disparity, an appellate court must reduce a co-offender's sentence to one which is inadequate. As was pointed out by Simpson J in R v Steele, unreported; CCA SCt of NSW; 17 April 1997, what was said by Mason J is authority only for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to reduce the co-offender's sentence to one which is inadequate. What was said by Simpson J in Steele has since been applied in a number of cases in New South Wales, including R v Zabul [2001] NSWCCA 455 and R v Lam [2003] NSWCCA 162.

Consequently, it is open to an appellate court to conclude, in a case in which a co-offender has been inadequately sentenced, that to establish parity might 'compound the error in a way which would be unacceptable to the public conscience': R v MacGowan (1986) 42 SASR 580 at 583 per King CJ, Mohr and von Doussa JJ agreeing. When the more severe sentence is one which is already as lenient as could sensibly be imposed, having regard for the need to protect the public and the dictates of the public conscience, it is hard to see why there should be any "justifiable" sense of grievance on the part of the offender.

13 It was not made apparent to me that this qualification or elaboration of the principle in fact had any application in this case. That is, it was not made apparent to me that any of the comparison sentences, for Mr Moyes or Mr Hughes-D'Aeth, were already 'as lenient as could sensibly be imposed' on any of the co-offenders.

14 I should note that the sentences were, given the seriousness of the offending represented by the aggravated burglaries, and the number of the offences, at the lenient end of the range: see the review of sentences for multiple aggravated burglaries in Dunks v The State [2009] WASCA 82. However, as is said there, it is important to note the circumstances of the offending and of the offenders: see Dunks [30] and [39] (Buss JA). Here, apart from having the benefit of their early pleas of guilty, Mr Moyes and Mr Rodenburg-Hill were both young at the time of offending (18 and 19, respectively); and there were, in addition to his early plea of guilty, particular mitigatory factors in the case of Mr Hughes-D'Aeth to which I return. It is thus not apparent to me that the sentences imposed on Mr Moyes and Mr Hughes-D'Aeth were already as lenient as could sensibly be imposed on any of the offenders.

15 Returning to the application of the parity principle without regard to the qualification, I note that, as counsel for the WA Police pointed out, the total effective sentence for the common offences, as well as the individual sentences for those offences, were the same for Mr Rodenburg-Hill and for Mr Moyes. Counsel's submission was that, on the parity principle, that parity of treatment was appropriate. The total effective sentencing in respect of the common offences was different for Mr Hughes-D'Aeth, and his sentencing on one of the common offences was different without making a difference to the total effective sentencing. However, counsel's submission was that there were differences in his circumstances which the authorities on the parity principle indicate would justify a departure from parity of sentencing for those common offences.

16 As I will explain, I agree with these submissions.

17 Of course, the foundation of Mr Rodenburg-Hill's first ground of appeal is that there were differences in the offences between the three men. In his submission, those differences ought to have produced, as I understood him, a less severe sentence for him relative to Mr Moyes, at least in the form of a suspended sentence, as for Mr Hughes-D'Aeth.

18 However, I understood counsel's references to the parity principle to be directing my attention to the relevance to the learned magistrate's sentencing of a consideration of the comparative criminality of the offending of all three men having regard to all of the circumstances, including those personal to each offender. On such a consideration, in counsel's submission, the learned magistrate was not shown to be in error in arriving at the total effective sentence for Mr Rodenburg-Hill he did.

19 I am of the view that such a consideration was relevant to the learned magistrate's sentencing of each of the three men, and that the learned Magistrate undertook such a consideration. Such a consideration was relevant because of the totality principle of sentencing. The totality principle is that the total sentence should be an appropriate reflection of the total criminality involved in the offending for which individual sentences are being imposed, taking account of the circumstances of the case, including those personal to the offender: see Royer v The State of Western Australia [2009] WASCA 139 [130] (Buss JA) and [211] (Miller JA).

20 Further, I am of the view that a consideration of the comparative criminality of the offending of the three offenders having regard to the circumstances of the case, including those personal to each offender, does not reveal any error in the sentencing of Mr Rodenburg-Hill.

21 I now explain why I have arrived at these conclusions in the application of these principles.

The application of the principles: the structure of the sentences

22 To understand Mr Rodenburg-Hill's case, and the submissions of counsel for the WA Police, it is important to appreciate that the learned magistrate constructed the three offenders' total sentences by reference to two bodies of offending in the case of each man.

23 One body of offending was what the learned magistrate called that man's 'core' offending. This was offending of the same general character committed at about the same time in which that man and at least one of the others were jointly involved.

24 The learned magistrate gave all three offenders the same effective sentence for their core offending, of 12 months, suspended in the case of Mr Hughes-D'Aeth.

25 The other body of offending was that which was unique to each of the three.

26 The learned magistrate gave each of Mr Rodenburg-Hill and Mr Moyes the same total sentence for their unique offending, with the effect of adding six months to the term of imprisonment for the core offending for both. This resulted in a total effective sentence of imprisonment for both of 18 months each.

27 The learned magistrate gave Mr Hughes-D'Aeth sentences of imprisonment for his unique offending which were 4 months, suspended, in each case, but made concurrent with the sentences he received for the core offending. This resulted in a total effective sentence of imprisonment for him of 12 months, suspended.

28 I note that the learned magistrate recorded convictions but no penalty for all three men for certain of their core offending common to each man, imposed an intensive supervision order for one of his core offences on Mr Hughes-D'Aeth for which the others received sentences of imprisonment, and imposed sentences other than imprisonment for certain of the unique offending of Mr Moyes.

29 I now consider the core offending of each of the three men in detail. It is to that part of this offending that is common to all three men that the parity principle applies.

30 The core offending occurred on four dates, 19 February 2009, 25 February 2009, 3 March 2009 and 4 March 2009, and involved various combinations of damaging property, aggravated burglary and theft, and attempted aggravated burglary, in relation to retail and office premises, in the northern suburbs of Perth. Some premises were damaged and burgled more than once.

31 The offending on 19 February 2009 involved all three of Mr Rodenburg-Hill, Mr Moyes and Mr Hughes-D'Aeth, in five offences each.

32 The three drove to an industrial area in Wangara where they smashed windows at the premises of Britton's Formal Wear and then at a Barbeques Galore store, before proceeding to the Wanneroo Mazda lot in Wangara, where they damaged several vehicles on display by throwing rocks at them. Each of these three incidents for each man produced a criminal damage charge under Criminal Code (Code) (WA) s 444(b). Later that evening they drove to the Exotic Tropical Fish shop where they smashed the alarm system, gained entry by smashing a window and stole a snake. These matters for each man produced a charge of aggravated burglary and commit offence in place under Code s 401(2)(a) and a charge of a charge of stealing under Code s 378.

33 For the core offending on 19 February 2009, each of the three men received sentences, for each offence of criminal damage, of 4 months imprisonment concurrent; for the aggravated burglary, of 12 months imprisonment concurrent; and, for each stealing, conviction entered but no penalty imposed, under Sentencing Act 1995 (WA) s 11. Each of the sentences of imprisonment for Mr Hughes-D'Aeth was suspended.

34 The offending on 25 February 2009 did not involve Mr Rodenburg-Hill, and involved Mr Moyes and Mr Hughes-D'Aeth in three offences each.

35 The two men drove to Britton's Formal Wear, 'Joondalup', which the learned Magistrate appears to have treated as the same premises of that business as that damaged in the attack on 19 February 2009. There they gained entry by smashing a window and stole a suit. These matters produced for each man a charge of aggravated burglary and commit offence in place and a charge of stealing. The two then proceeded to the Barbeques Galore store they had previously attacked and smashed a window. This matter produced for each man a charge of criminal damage.

36 For the core offending on 25 February 2009, each of the two men received sentences, for the aggravated burglary, of 12 months imprisonment concurrent; for the criminal damage, 4 months imprisonment concurrent; and for the stealing, conviction entered but no penalty imposed. Each of the sentences of imprisonment for Mr Hughes-D'Aeth was again suspended.

37 The offending on 3 March 2009 involved all three men, Mr Rodenburg-Hill, Mr Moynes and Mr Hughes-D'Aeth, in four offences each.

38 The three men drove to an industrial area in Osborne Park where they gained entry to the premises of My Lunch N Café by smashing the glass of the front door where they stole assorted drinks. On their way out they smashed the alarm and did extensive damage to the outside wall. These matters produced for each man a charge of aggravated burglary and commit offence in place and a charge of stealing. They then travelled to Malaga and smashed windows to the Book Marketing store there, reaching inside and stealing Camel backpacks and markers. These matters produced for each man a charge of aggravated burglary and commit offence in place and stealing.

39 For the core offending on 3 March 2009, the three men each received sentences, for each of the aggravated burglaries, of 12 months imprisonment concurrent; and for each stealing, conviction entered but no penalty. Each of the sentences of imprisonment for Mr Hughes-D'Aeth was again suspended.

40 The core offending on 4 March 2009 involved all three men in 11 offences each. I should note that his Honour appears to have allocated the first offence I describe to 3 March 2009. However, the offence is shown on the prosecution notice as having been committed on 4 March 2009, and I so treat it here. Its allocation between the two dates appears not to be material to the sentencing for it.

41 The three went to the Wangara Industrial Estate where they decided to break into the Go West Surf Shop there and steal some clothing. They left their vehicle in preparation for the break-in but broke off when a passing police patrol stopped to investigate the vehicle. These matters produced for each man a charge of attempted burglary with intent in place.

42 The three men travelled to the Joondalup area where they gained entry to the premises of the Direct Lighting store there by smashing the front window, and stole a floral lamp. These matters produced for each man a charge of aggravated burglary and commit offence in place and a charge of stealing.

43 They then went to the nearby Britton Formal Wear premises, apparently the premises at which on 19 February 2009 the three had previously done criminal damage, to which they gained entry by smashing a window, and from which they stole 18 suits. These matters produced for each man a charge of aggravated burglary and commit offence in place and a charge of stealing.

44 They then sought to gain entry to the adjoining premises of Austin Computers, by one of them smashing the front window, but were prevented from gaining entry by security bars. These matters produced a charge for each man of attempted aggravated burglary with intent in place.

45 They then went to the nearby Taste of Britain store to which they gained entry by smashing the front window and from which they stole various items of property. These matters produced for each man a charge of aggravated burglary and commit offence in place and a charge of stealing.

46 They then went to the nearby Blue Lizard Gallery to which they gained entry by smashing the glass of a side window and from which they stole two framed football jumpers. These matters produced for each man a charge of aggravated burglary and commit offence in place and a charge of stealing.

47 Before leaving the Joondalup area they threw one of the items stolen from the Taste of Britain store at the front window of the Fairclough premises in Joondalup, smashing the window. This produced for each man a charge of criminal damage.

48 For the core offending on 4 March 2009, the three men received sentences, for each of the aggravated burglaries, of 12 months imprisonment concurrent, except for the offence of aggravated burglary by Mr Hughes-D'Aeth at the premises of the Blue Lizard Gallery, for which he received a 12 months intensive supervision order with supervision and 150 hours of community work; for each stealing, conviction entered but no penalty; for each of the attempted aggravated burglaries 6 months imprisonment concurrent; and for the criminal damage, 4 months imprisonment concurrent. Each of the sentences of imprisonment for Mr Hughes-D'Aeth was again suspended.

49 It will be seen that in respect of the core offending, there were differences of somewhat different kinds between Mr Rodenburg-Hill and each of Mr Moyes and Mr Hughes-D'Aeth. I deal with the contrast between Mr Rodenburg-Hill and each of the other two men separately.

The application of the principles: contrasting the sentencing for the 'core' offending of Mr Moyes and Mr Rodenburg-Hill

51 For those core offences for which he received sentences of imprisonment, Mr Rodenburg-Hill received an effective sentence of 12 months imprisonment to be immediately served for seven aggravated burglaries, one of which was at premises of a business (Britton's Formal Wear) which he had attacked once before, committing the offence of doing criminal damage; for two attempted burglaries; and four offences of doing criminal damage.

52 By contrast, for those core offences for which Mr Moyes had received sentences of imprisonment, he received (emphasising the differences with Mr Rodenburg-Hill) an effective sentence of 12 months imprisonment for eight aggravated burglaries, one of which was on premises of a business (Britton's Formal Wear) which he had attacked twice before, once committing the offence of doing criminal damage, and once the offence of aggravated burglary; two attempted burglaries; and five offences of doing criminal damage, including doing criminal damage twice at the same premises (Barbeques Galore).

53 The contrast lies in the number of offences, being two more for Mr Moyes, combined with the repetition in the category of the most serious offending, the aggravated burglaries (the aggravated burglaries at Britton's Formal Wear), and in the category of the less serious offending, criminal damage (the criminal damage offences at Barbeques Galore).

54 His Honour himself laid particular emphasis on the aggravated burglary at the premises of Britton's Formal Wear on 4 March 2009. As his Honour noted, Mr Moyes had gone back to 'exactly the same place again' while Mr Rodenburg-Hill had 'not been involved in one of the attacks on those premises but had been involved in the other' (6 May 2009, ts 13). This offence his Honour treated as 'the most serious of all the burglaries' for Mr Moyes (ts 13) and as 'part of the head sentence', the other part being the term of imprisonment for what his Honour treated as the most serious of the unique offending for Mr Moyes (ts 14). His Honour treated the same aggravated burglary as 'the head sentence' on the core offending for Mr Rodenburg-Hill (ts 16), who had previously committed the offence of doing criminal damage there.

55 In terms of the parity principle, the like treatment of Mr Rodenburg-Hill for the core offences he had in common with Mr Moyes was appropriate.

56 The only material difference in the common offending to which my attention was called was the repeated character of the aggravated burglary at Britton's Formal Wear. However, I am not convinced any distinction in the length of the prison term was called for. Any such distinction might it seems to me have involved an element of double punishment for Mr Moyes. There is also the distinction between his personal circumstances and those of Mr Rodenburg-Hill, being the latter's having committed the offences while in a period of suspension of suspended terms of imprisonment, to which I return below.

57 I should note that Mr Rodenburg-Hill said to me that his counsel had told the learned magistrate he had aspirations to join the army, but she did not tell his Honour that he had had an interview for that purpose. His Honour in fact referred to Mr Rodenburg-Hill's 'aspirations to go into the army and so on', adding '[b]ut they must have been far from your mind when you were committing these offences in February and March' (6 May 2009, ts 11). Those references indicate to me that it would not have been material to his Honour, in any way favourable to Mr Rodenburg-Hill, that Mr Rodenburg-Hill's aspirations had advanced to a completed interview.

58 This takes me then to the offending Mr Rodenburg-Hill and Mr Moyes did not have in common. In considering the total effective sentence that the two men received for all of their offending, including their offending which was not in common, it is the totality principle that is relevant.

The application of the principles: the sentencing for the offending of Mr Moyes and Mr Rodenburg-Hill that was not in common

59 The different offending of the two men was of two kinds. One was in their core offending, being the three offences of 25 February 2009 which Mr Moyes committed, but for which Mr Rodenburg-Hill was not charged. That difference, as I have indicated, did not result in any difference in the total sentence the learned magistrate assigned to their core offending. The different offending was also in their unique offending, for which they also received the same effective sentence. I deal with the different offending in that order.

60 In considering the lack of difference in the effective sentence for the core offending it is in my view important to note that his Honour also described the 'core' offending as a 'criminal spree', when he was sentencing Mr Hughes-D'Aeth (29 May 2009, ts 2), and a 'spree', when he was sentencing Mr Moyes and Mr Rodenburg-Hill (6 May 2009, ts 9). His Honour described it also as an 'enterprise', when he was sentencing Mr Hughes-D'Aeth (29 May 2009, ts 7), and a 'criminal enterprise' when he was sentencing the two other men (6 May 2009, ts 9). It appears to be on this basis he made the sentences for all of the core offences concurrent with one another. In so doing he appears to have been following the 'one transaction' principle of sentencing.

61 That principle is that 'when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences will usually be made concurrent': The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 [55] (Steytler P). However, a sentencing judge is not required to apply the principle where such application 'would result in an effective term that fails to reflect the degree of criminality involved': Royer [21] (Owen JA).

62 In my view there was no obvious error in the learned magistrate making all of the sentences of imprisonment for the core offending concurrent with one another even although they produced the same total for different bodies of offending. His Honour clearly noted the difference in the core offending between Mr Moyes and Mr Rodenburg-Hill in terms of the three offences on 25 February 2009 (6 May 2009, ts 10), leaving in 20 in common. His Honour appears to account for the same effective sentence for both men despite that difference by noting that Mr-Rodenburg-Hill had committed his core offending while in the period of suspension of his terms of suspended imprisonment (see 6 May 2009, ts 12), which made his situation 'worse' than that of either of his co-offenders (29 May 2009, ts 2).

63 Initially it seemed to me that so treating that aspect of his criminal record involved an element of double punishment. However, I have concluded that it does not. His Honour was entitled to consider that the degree of criminality of Mr Rodenburg-Hill's participation in the criminal enterprise with the others was increased by reason of his having offended while being under a current warning against criminal conduct of the kind represented by a suspended term of imprisonment whose period of suspension had not expired.

64 The fact that his offending also activated the suspended sentences would not produce double punishment. That is because of the six concurrent suspended sentences of imprisonment (for stealing contrary to Code s 378, and for gaining benefits by fraud contrary to Code s 409(1)(c)) Mr Rodenburg-Hill had received for offending in June, July and August, 2008, his Honour activated only 6 months of the 7 month head suspended sentence. This offending appears to have borne no relation to his core offending. His Honour stated that he made that partial activation so as to 'achieve what I agree is a level of parity in this matter' (6 May 2009, ts 16). I take his Honour's phrase 'a level of parity' to describe his comparative consideration of the totality of the circumstances of the offending of the two men.

65 His Honour's use of that phrase came in his sentencing remarks after his accounting for the unique offending of Mr Moyes. This offending was made up of assaulting a public officer contrary to Code s 318(1)(d) (6 months imprisonment, head sentence); stealing a motor vehicle contrary to Code s 378 (4 months, concurrent); driving without a driver's licence, contrary to Road Traffic Act 1974 (RT Act) (WA) s 49(1)(a) and (3)(b) (4 months imprisonment, concurrent); carrying a controlled weapon contrary to Weapons Act 1999 (WA) s 7(1) (2 months imprisonment, concurrent); breach of bail contrary to Bail Act 1982 (WA) s 51(1) (1 month's imprisonment, concurrent); and fines, one for the offence of giving a false name contrary to RT Act s 53(1)(a) and the other for exceeding the speed limit between 30 and 40 kph contrary to Road Traffic Code 2000 (WA) s 11(3). This represented five offences for which Mr Moyes received sentences of imprisonment. There appears to be no connection between this offending and his core offending.

66 The basis on which the sentences for Mr Moyes' unique offending were made concurrent is also not evident to me, at least in terms of the relationship if any between those offences. However, I consider his Honour's concern was to arrive at a total effective sentence for all of the offending of Mr Moyes that properly reflected the total criminality involved. While the way in which his Honour structured the sentencing for the unique offences might instead have involved lower individual sentences and their cumulation or partial cumulation, it is not evident to me he erred in arriving at the total effective sentence for all of the offending of Mr Moyes, including his unique offending.

67 Further, it seems to me that the learned magistrate properly used the resultant total effective sentence for Mr Moyes as a basis for comparison with the total effective sentence for Mr Rodenburg-Hill, for his core offending and the activation of his suspended sentences. It also seems to me arguable his Honour could properly adjust the portion of the head suspended sentence activated for Mr Rodenburg-Hill to arrive at his appropriate total effective sentence, in view of the total criminality involved in the offending comprising Mr Rodenburg-Hill's core offending and the offences for which the suspended sentences were received. He could properly do this in view of the way in which he had approached the sentencing of Mr Rodenburg-Hill for his core offending. He had approached that by reference to Mr Rodenburg-Hill having committed his core offending while in the period of suspension of his terms of suspended imprisonment. On the activation of a portion of a suspended sentence, see Sentencing Act 1995 (WA) s 80(1)(b) and (3).

68 However, if (as I am inclined to consider, without determining) his Honour ought to have activated all and not just a part of the suspended sentences (see Sentencing Act s 80(3)), then it seems to me he ought to have made a corresponding adjustment downwards in the effective sentence for Mr Rodenburg-Hill's core offending, as otherwise there would have been a question of double punishment, as I previously explained. The result of those two adjustments in my view would have been the same total effective sentence.

69 That is, in my view of the application of the totality principle in this case there is no error shown in his Honour arriving at the same total effective sentence of imprisonment for Mr Moyes and for Mr Rodenburg-Hill, notwithstanding the greater number of offences Mr Moyes had committed, and the difference in the character of two of them (the repetition for Mr Moyes of aggravated burglary at the premises of Britton's Formal Wear and criminal damage at Barbeques Galore).

The application of the principles: the sentencing for the offending of Mr Rodenburg-Hill and Mr Hughes-D'Aeth

70 This takes me to a comparison between the offending of Mr Rodenburg-Hill and Mr Hughes-D'Aeth.

71 For those core offences for which Mr Hughes-D'Aeth received sentences of imprisonment, he received (emphasising the differences with Mr Rodenburg-Hill) an effective sentence of 12 months imprisonment suspended for seven aggravated burglaries, one of which was on premises (Britton's Formal Wear) which he had attacked twice before, once committing the offence of doing criminal damage, and once the offence of aggravated burglary; three attempted burglaries; and five offences of doing criminal damage, including doing criminal damage twice at the same premises (Barbeques Galore). Although Mr Rodenburg-Hill did not lay emphasis on it, I also note that Mr Hughes-D'Aeth received an intensive suspension order for one of the aggravated burglaries (that at the Blue Lizard Gallery on 4 March 2009) for which Mr Rodenburg-Hill received a sentence of imprisonment to be immediately served.

72 Mr Hughes-D'Aeth was also sentenced for offending unique to him but which Magistrate Lawrence treated as part of the same enterprise as was represented by what I have called the core offending. That offending was three counts of gaining benefits by fraud, contrary to Code s 409(1)(c). For each he received a sentence of 4 months imprisonment, suspended for 18 months, which his Honour dealt with 'concurrently, since they form part of the same enterprise' (29 May 2009, ts 7).

73 However, there are significant differences in the position of Mr Hughes-D'Aeth for sentencing purposes. Those differences in my view are sufficient to account for the difference between his treatment and that of Mr Rodenburg-Hill.

74 On the material before him, Magistrate Lawrence noted the differences were Mr Hughes-D'Aeth's criminal record, his cooperation with the police, his vulnerability to peer pressure, and his role in the 'enterprise' (29 May 2009, ts 4).

75 Magistrate Lawrence noted Mr Hughes-D'Aeth had not been placed on a suspended sentence like Mr Rodenburg-Hill, nor did his record show any prior offending as serious as the prior offending of either Mr Rodenburg-Hill or Mr Moyes.

76 Magistrate Lawrence noted Mr Hughes-D'Aeth had cooperated with the police in a way that may have 'saved police time', by making for an earlier arrest of 'the third offender'. I should note that this matter is distinct from the form of cooperation in the administration of criminal justice represented by the early plea of guilty by all three offenders. There appears to have been nothing his Honour considered should distinguish the three offenders in respect of their early pleas of guilty here: all three appear to have received a one-third discount for their early pleas.

77 Magistrate Lawrence noted that Mr Moyes was the cousin of Mr Hughes-D'Aeth, and that the latter's descent into serious offending, when he had 'no previous serious criminal record', coincided with his removal from the family home as a result of a violence restraining order, and with his association with Mr Moyes. In making this assessment, his Honour allowed for Mr Hughes-D'Aeth's greater age at the time of the offending (24), relative to the ages of his co-offenders, Mr Moyes (18) and Mr Rodenburg-Hill (19).

78 Finally, Magistrate Lawrence noted and appeared to rely upon what had been put to him by counsel for Mr Hughes-D'Aeth and what appeared in the presentence report for him. Counsel had put to him that 'predominantly' Mr Hughes-D'Aeth's role had been 'confined' to 'driving the car'. The author of the presentence report noted

he provided transport and had a better knowledge of the areas, the trio attended, and the others - he was, I find, the least experienced in terms of offending, and I find that his actual involvement was less than the involvement of his co-accused. His willingness to place himself at risk of apprehension in relation to the pawning of items is more consistent with assisting his more experienced friends and thereby gaining their acceptance, than being in any sense, the prime mover in the whole enterprise.

79 Mr Rodenburg-Hill before me said that these descriptions understated the involvement of Mr Hughes-D'Aeth in the enterprise, by assigning him a 'minor part in the whole ordeal'. I was told he was 'involved with breaking into these businesses' where the descriptions might tend to indicate he was 'just the getaway driver, so to speak'.

80 However, those descriptions in my view do not assign Mr Hughes-D'Aeth such a role nor give that indication. They rather indicate what Mr Hughes-D'Aeth's principal contributions to the three offenders' criminal enterprise were, and his relative involvement in it. I do not consider his Honour by his apparent reliance on them was indicating he had concluded that Mr Hughes-D'Aeth was 'just' the getaway driver, or not involved in the break-ins, or had simply a 'minor' role.

81 For these reasons I consider there were, in the terms of the parity principle, factors as between Mr Rodenburg-Hill and Mr Hughes-D'Aeth, being different degrees of culpability and differences in their personal circumstances, which meant it has not been shown the learned magistrate erred in arriving at the different sentencing treatment of their common offending.

82 For these reasons also on my view of the application of the totality principle in this case there is no error shown in his Honour arriving at the more burdensome sentence on Mr Rodenburg-Hill notwithstanding the fewer charges he faced.

83 It follows I would not uphold the first ground of appeal.

84 Finally, if (contrary to my view above) his Honour made an error within ground 1 in not reducing the effective sentence for Mr Rodenburg-Hill's core offending, by not leaving out of account the fact he committed it during the period of suspension of his suspended sentences of imprisonment, then in my view the appeal should still not be allowed on that ground. That is because of Criminal Appeals Act 2004 (CA Act) (WA) s 14(2), which provides that even if a ground of appeal might be decided in favour of an appellant the court may dismiss the appeal if it considers 'no substantial miscarriage of justice has occurred'.

85 In my view, on any sentencing of him without that account for his having committed his core offending during the period of suspension, Mr Rodenburg-Hill's suspended sentences of imprisonment would be activated in full. This in my view would offset the reduction of his effective sentence for his core offending. Nor, in view of his commission of the core offending during the period of suspension, and the nature of that offending, do I consider it would have been appropriate to provide for suspended sentences for any of his core offending. That is, no substantial miscarriage of justice by reference to the matters in the first ground has occurred in this case.

86 During the sentencing hearing of 6 May 2009 the learned magistrate asked what time Mr Rodenburg-Hill had spent in custody on remand on the charges he faced (ts 11). However, the prosecutor provided his Honour with no answer. His Honour did note Mr Rodenburg-Hill had said he had been in Hakea, although his Honour added 'that could be in relation to other charges' (ts 11). His Honour made no provision in sentencing Mr Rodenburg-Hill for any period he had spent in custody on remand on the charges he faced.

87 In relation to Mr Moyes, his Honour asked the same question (6 May 2009, ts 11), and, it seems on the basis of information provided by the prosecutor, his Honour backdated Mr Moyes' total effective sentence of imprisonment (see ts 17).

88 Counsel for the WA Police indicated that if Mr Rodenburg-Hill had indeed spent time in custody on remand on the charges he faced, I should uphold this ground of appeal, and backdate his sentence accordingly.

89 I agree. It seems to me that, if Mr Rodenburg-Hill had spent time in custody on remand on the charges he faced, it would have been an error for the learned magistrate in the exercise of his power under Sentencing Act 1995 (WA) s 87 not to have backdated his sentence, given the learned magistrate's treatment of Mr Moyes. Further, it seems to me that I have the power to uphold the appeal on the present ground and vary the sentence imposed by his Honour: CA Act s 14(1)(c).

90 Since the hearing of the appeal, counsel for the WA Police has informed me that he has determined Mr Rodenburg-Hill spent 9 days (not 8) in custody on remand on the charges he faced.

91 I would thus uphold ground 2 of the appeal and vary Mr Rodenburg-Hill's total effective sentence of imprisonment by backdating it by 9 days.