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2. These grounds were the subject of refinement, departure and clarification in the appellant’s written and oral submissions. First, “no issue was taken with the individual sentences imposed by the sentencing judge”. Second, the appellant acknowledged that the sentencing judge had, in fact, had regard to the principles of totality but rather had failed to apply those principles properly. Third, it was acknowledged that the overall sentence of 36.5 months for the offences was within the range and could not be the subject of criticism. Fourth, the appellant’s overarching concern rested with the structure of the sentence and the degree of concurrency or lack of it afforded to the appellant between the total sentence imposed by a previous judge and the total sentence imposed by the sentencing judge in this case. The submission made, in its final form, was that the imposition of the current sentence should have had a greater degree of concurrency with the previously imposed sentence which was still being served.

3. At the hearing of the appeal there was further refinement to the argument. No specific error could be identified in the application of the totality principle: only the ultimate result could be criticized. Counsel stated that “the sole focus of the appellant’s submissions is that it was the degree of accumulation or lack of thereof of concurrency that placed these-the aggregate sentence imposed in the manifest excess category”. That meant that, the issue became one of “manifest excessiveness, in both cases”. The appeal was fought on the basis of whether the aggregate sentence was unreasonable or plainly unjust.

4. As is obvious, this challenge requires an examination of the appellant’s custodial history which was described in the appellant’s written submissions as “long and convoluted”. It is convenient to first outline that custodial history in order to place the sentence under appeal in its appropriate context before setting out the current offending.

Recent Custodial History and Sentences

5. The appellant was aged 36 at the time he came before the sentencing judge. The appellant has 144 offences recorded on his criminal history with 18 previous convictions for burglary. The offending commenced from age 14.

6. The sentencing judge said of these offences at [20]:

The offender has an extensive criminal history. It was accurately described as “a very serious and long history” by Refshauge J (Sampson v De Haan [2016] ACTSC 327 at [79]). In the ACT, his criminal history includes multiple convictions for burglary, multiple convictions for theft, multiple convictions for obtaining property by deception, multiple convictions for receiving stolen property and multiple convictions for riding in or driving a motor vehicle without consent. It also includes a conviction for aggravated robbery. He has a similarly bad criminal history in New South Wales. He has spent lengthy periods in full-time detention. His criminal history means that there is little room for leniency (R v Sampson [2018] ACTSC 59).

7. Neither party to the appeal has sought to agitate this finding.

8. In the appeal, both parties’ submissions treated the period from 21 February 2013 onwards as critical to the outcome of the appeal. The agreed sequence of events should be noticed.

9. The date of 21 February 2013 is a notional date to which the sentences imposed by Penfold J on 22 July 2014 were backdated. These sentences were imposed when her Honour sentenced the appellant for aggravated robbery, stealing a motor vehicle and two offences (possession of stolen property and unaccompanied learner driver) being scheduled (R v Sampson [2014] ACTSC 210).

10. Her Honour had before her three sets of offences which required consideration including New South Wales offences. The practical result was that the appellant’s sentence was “effectively” started on 21 February 2013 and would run until 20 February 2018. A new non-parole period was set to expire on 20 November 2015.

11. On 20 November 2015 the appellant was admitted to parole.

12. The appellant was arrested on 8 January 2016. It was during this period on parole of, some seven weeks, that the appellant committed 14 offences. Six of those offences came before Refshauge J for sentence and eight offences came before the current sentencing judge and which are the subject of this appeal. (We interpolate here to merely record that Refshauge J sat on appeal from the Magistrate’s decision in giving his judgment. Nothing turns on this fact).

13. The Sentence Administration Board cancelled the parole order on 12 January 2016 and the appellant became liable to serve the balance of the sentence to expire on 7 July 2018.

14. As recounted above, six of the 14 offences found their way, via the Magistrate, to Refshauge J for resolution on appeal. His Honour gave judgment on 22 November 2016. The sentences were:

(a) for the offence of burglary committed on 26 November 2015, Ricky Lee Sampson be sentenced to imprisonment for two years and six months to commence on 2 January 2017; (b) for the offence of theft of property valued at $2300 November 2015, Ricky Lee Sampson be sentenced to imprisonment for 12 months to commence on 2 January 2017; (c) for the offence of theft of property valued at $10 009 November 2015, Ricky Lee Sampson be sentenced to imprisonment for 12 months to commence on 2 April 2019; (d) for the offence of theft of property valued at $7560 November 2015, Ricky Lee Sampson be sentenced to imprisonment for 12 months to commence on 2 July 2019; (e) for the offence of dishonestly taking someone else’s motor vehicle without consent on 26 November 2015; Ricky Lee Sampson be sentenced to imprisonment for 18 months to commence on 2 July 2019; (f) for the offence of dishonestly driving someone else’s motor vehicle without consent between 4 and 8 January 2016, Ricky Lee Sampson be sentenced to imprisonment for 18 months to commence on 2 January 2020.

15. The effective sentence was 4 years and 6 months from 2 January 2017. His Honour set a non-parole period to commence on 21 February 2013 and end on 2 January 2018.

16. Importantly, for the present appeal, Refshauge J backdated the commencement of this effective sentence so as to run concurrently with the sentence imposed by Penfold J for some 13 months.

17. The offending in question before the sentencing judge occurred over a period of four days and involved the following offences with attendant maximum penalties:

(a) 2 January 2016: aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (maximum penalty 20 years imprisonment and/or $300,000 fine); (b) 2 January 2016: damage property contrary to s 403 of the Criminal Code (maximum penalty 10 years imprisonment and/or fine of $150,000); (c) 2 January 2016: theft contrary to s 308 of the Criminal Code (maximum penalty of 10 years imprisonment and/or a fine of $150,000); (d) 3 January 2016: making off without payment contrary to s 322A(1) of the Criminal Code (maximum penalty two years and/or fine of $30,000); and (e) 5 January 2016: obtain property by deception contrary to s 326 of the Criminal Code (four counts) (maximum penalty 10 years imprisonment and/or a fine of $150,000).

18. The sentencing judge imposed the following sentences:

19. On the charge of burglary, the offender will be sentenced to 22 months and 15 days’ imprisonment reduced from 30 months on account of the plea of guilty. This sentence will commence on 2 April 2021 and end on 16 February 2023. 35. On the theft charge, the offender is sentenced to 12 months’ imprisonment (reduced from 16 months on account of the plea of guilty), four months of which will be cumulative upon the prior sentence. The sentence will start on 17 June 2022 and end on 16 June 2023. 36. On the damage property charge, the offender will be sentenced to 12 months’ imprisonment (reduced from 16 months on account of plea of guilty), four months of which will be cumulative upon the prior sentence. The sentence will start on 17 October 2022 and end on 16 October 2023. 37. On the charge of making off without payment, the offender will be sentenced to one month imprisonment (reduced from six weeks on account of the plea of guilty), which will be cumulative upon the previous sentence. The sentence will start on 17 October 2023 and end on 16 November 2023. 38. On each of the charges of obtaining property by deception, the offender will be sentenced to three months’ imprisonment (reduced from four months on account of the plea of guilty). The first charge (CC2016/8196) will be cumulative as to two months on the previous charge and each of the other three offences will be cumulative as to one month on the previous charge. Therefore sentences will start and end as follows: (a) CC2016/8196 will start on 17 October 2023 end on 16 January 2024; (b) CC2016/8197 will start on 17 November 2023 and end on 16 February 2024; (c) CC2016/8198 will start on 17 December 2023 and end on 16 March 2024; and (d) CC2016/8200 will start on 17 January 2024 and end on 16 April 2024.

20. The total effective head sentence was 36 months and 15 days. The sentencing judge fixed a non-parole period in respect of this sentence of approximately 60 per cent of this figure, which he rounded to 22 months.

21. Prior to the sentences being given, the appellant’s non-parole period started on 21 February 2013 and ended on 2 January 2018. The sentencing judge accordingly fixed the new non-parole period to start on 21 February 2013 and end on 1 November 2019.

22. As a result of the backdating of the start date of the sentences imposed by the sentencing judge, the net effect will be to add 2 years 9 months and 15 days to the previous sentence and 1 year and 8 months to the previous non-parole period.

23. The three sentences can be summarised as follows: Judge Start Finish Total NPP eligibility Penfold J 21/2/13 20/2/18 5 years 20/11/15 Refshauge J 2/1/17 1/7/21 4 years 6 months 2/1/18 Mossop J 2/4/21 16/4/24 3 years 15 days 1/11/19

The offending the subject of appeal

23. By reason of the content of the challenges made by the appellant on appeal it is necessary to record the circumstances of those offences.

24. In the early hours of 2 January 2016, the offender and an unknown male damaged the front door and glass cabinets inside a business known as Burson Automotive at Wollongong Street in Fyshwick in the course of carrying out the robbery. The damage to the front door and cabinets cost $5,527.50 to repair.

25. The burglary netted the pair $3,294.65 worth of tools. There had been some reconnaissance of the premises in advance of the actual burglary. The offender and two others arrived by car with a sledgehammer and a bed sheet. Entry into the premises was accomplished using a sledgehammer to smash a glass panel on the front door. The sledgehammer was then also used to smash display cabinets full of tools. These tools were then wrapped in the bed sheet before being loaded into a waiting car.

26. At about 6:50 am on 3 January 2016, the offender drove off without paying for $46.69 worth of petrol from the Coles Express service station at Wanniassa. He had initially attempted to pay with an eftpos pay pass but this transaction was declined. He returned to the car and drove off without paying.

27. Between 6:20 am and 6:30 am on 5 January 2016, the offender used a stolen credit card to perform five transactions to the total value of $478.89. The card had been stolen shortly before from a vehicle parked at a shopping centre in Jerrabomberra. The charges were in relation to the following:

(a) cigarettes and Optus mobile phone vouchers totalling $96;

(b) cigarettes worth $87.90; (c) two transactions, mobile phone vouchers worth $100 and an android tablet computer worth $99; and

(d) cigarettes and mobile phone vouchers totalling $95.99.

Application of Mill v The Queen

28. A number of factors combined to bring about the situation where the appellant was sentenced by two different judges for similar offences committed within a seven week period and where those two sentences were delivered some 16 months apart.

29. In Mill v The Queen (1988) 166 CLR 59 the High Court dealt with an offender who had, in a period of 6 weeks, committed two armed robberies in Victoria and one armed robbery in Queensland. He was sentenced by the Victorian Court to a period of 10 years imprisonment with a non-parole period of 8 years. On his release on parole in Victoria, he was returned to Queensland where he was convicted and sentenced to imprisonment for 8 years but with a recommendation that he be considered for parole after 3 years, in recognition of the fact that he had already served 8 years for the Victorian crimes. At p.66, the High Court said, in respect of the second sentencing judge:

In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all 3 offences of armed robbery in one jurisdiction and had been sentenced at one time.

30. The same approach should apply to the current situation.

Totality

31. It is convenient to deal with the grounds of appeal in reverse order. Although it could be said that, given the various refinements in the appellant’s position on appeal, that it is only necessary to deal directly with the manifestly excessive ground, the two grounds of appeal shed different perspectives on that ultimate conclusion and bring discipline to the reasoning process to reach that conclusion.

32. The sentencing judge took note of the proceedings and outcomes before both Penfold and Refshauge JJ.

33. The sentencing judge said [27]-[31]:

34. It is necessary to have regard to the totality of the sentences imposed. That is relevant to both the sentences for these offences as well as the sentences imposed by Refshauge J. Those sentences relate to the period November 2015 and January 2016, with the January offences actually occurring during the same period as the current offences. 28. I have taken into account the offender’s pre-sentence custody. He has been serving the sentences imposed by Penfold J and Refshauge J during the period since his arrest. His non-parole period ended on 2 January 2018. I have taken these facts into account. I have done that in a limited way through the consideration of the totality of all of his sentences, through some limited concurrency with the last of the sentences imposed by Refshauge J and by moderating the length of the non-parole period. 29. The offender’s history of incarceration and sentencing is quite complex. The history since 2013 is usefully summarised in the decision of Refshauge J in Sampson v De Haan at [80]-[87]. 30. The sentences imposed by Refshauge J were identified as starting on 2 January 2017. That involves an element of concurrency both with the sentences imposed by Penfold J which were to end on 20 February 2018: Sampson v De Haan at [84], and with an additional sentence imposed by the Magistrates Court which expires on 20 May 2018: Sampson v De Haan at [86]. The sentences imposed by Refshauge J extended until 1 July 2021. The overall effect of the sentences imposed by Refshauge J was a sentence of four years and six months imprisonment. The non-parole period was reset so that instead of expiring on 20 November 2015 it expired on 2 January 2018. This was an extension of just over two years and one month. 31. Recognising that one of the offences for which Refshauge J sentenced the offender was the driving of a black Holden Commodore utility which was the same vehicle found with the offender when the offender was arrested for the present offences, there is at least a temporal connection between the offending conduct for which he was sentenced by Refshauge J and the offending conduct for which he is sentenced today. I will allow three months concurrency between the dishonestly driving charge sentenced by Refshauge J and the first of the sentences which I will impose today to recognise that fact and also having regard to considerations of totality and pre-sentence custody.

35. An analysis of the offences coming before Refshauge J and the sentencing judge show that in the case of the two burglaries coming before the judges each was contemporaneously linked with other offences in what could be said to be part of the same transaction and the question of concurrency was raised directly. In the other offences there were different victims and they occurred at different times. Although we are concerned directly only with an appeal from the sentencing judge, both Refshauge J and the sentencing judge have both allowed a measure of concurrency in relation to the “transactions” and additional concurrency concerning the calculation of the overall sentence.

36. At the hearing of the appeal both counsel were in agreement that:

(a) The usual starting point is that after a consideration of the appropriate sentence for each individual offence, the sentencing judge is required to review the result and consider the totality of the criminality and adjust the aggregate sentence to the extent necessary to make it “just and appropriate”;

(b) Multiple offending requires a sentencing judge to consider accumulation or concurrence and to avoid double punishment subject to legislative constraints;

(c) Questions of accumulation and concurrency are within the discretion of the sentencing judge;

(d) A sentencing judge may structure an aggregate sentence in many acceptable ways.

36. Counsel for the appellant reminded the Court that a sentencing judge must take note of the fact that the severity of a sentence is not simply the product of a linear relationship as explained by Malcolm CJ in Clinch v The Queen (1994) 72 A Crim R 301, 306. She also drew attention to a principle behind “totality” expressed usually as “crushing” in that an extremely long total sentence may be “crushing” upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. It is said that the effect is to both increase the severity of the sentence to be served and also destroy such prospects as there may be of rehabilitation and reform.

37. Of course, those last two matters take effect against the background of the need to maintain public confidence in the administration of justice. In this instance this requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending.

38. On the hearing of the appeal there was debate concerning the “preferred” (See Mill v The Queen supra at p.63) method of sentencing as between concurrency or lower head sentences. That there is substantial flexibility as to the approach to the accumulation of sentences and totality has been recently restated in Nguyen v The Queen [2016] HCA 17 where the majority said (omitting footnotes):

39. The Court of Criminal Appeal concluded that it was not open to the sentencing judge to decline to cumulate any part of the sentence imposed for the offence of wounding on the sentence imposed for the offence of manslaughter. 62. That is debatable. The appellant was liable to be convicted of the deceased's manslaughter because he fired a shot at the deceased with intent to cause grievous bodily harm in circumstances where it was foreseeable that one of the deceased's colleagues would return fire and in the process unintentionally kill the deceased. Arguably, within the relatively broad confines of the proper exercise of sentencing discretion, including in particular the need to moderate and cumulate individual sentences in accordance with the requirements of the principle of totality, the judge might properly have concluded that the criminality of the offence of wounding with intent to cause grievous bodily harm was sufficiently comprised within the criminality of the offence of manslaughter to warrant that the sentences for each offence be made wholly concurrent. 63. Whether or not it was appropriate to make the sentences wholly concurrent depends, however, as much on the sentence imposed for the offence of manslaughter as it does on whether the offence of wounding involved any criminality beyond that comprised in the offence of manslaughter. 64. Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency. 65. It follows that, if the judge had imposed an individual sentence for the offence of manslaughter adequate to reflect the criminality of that offence, it might be that little if any accumulation of the sentence imposed for the offence of wounding would have been required. For the reasons which follow, however, the individual sentence imposed for the offence of manslaughter was not adequate to reflect its criminality.

40. By reason of the matters set out in [2]-[3] above, the challenge made by the appellant is centred on the lack of concurrency allowed by the sentencing judge against the sentence imposed by Refshauge J. The appellant argued two interrelated basal propositions. The 14 criminal offences committed in the period 26 November 2016 to 8 January 2017 should be seen as one course of conduct and would have brought a different result if they had been dealt with at the same time. Those basal propositions, fully articulated, were put at [34] of the appellant’s written submissions:

It is respectfully submitted that had all of those offences been dealt with at the one time, a lesser sentence overall would have been imposed given: (a) The offences for both the Refshauge J sentence and the one now appealed from occurred within the same intense seven week period while the Appellant was on parole, and overlapped in time; and, (b) There were common features to the motivation and general modus operandi across both sets of offences: property offences, spontaneous, unsophisticated, geared towards funding drug use, use of stolen cars etc such that, in combination with the temporal connection, means the offending in that period amounted to a single” multi-faceted course of criminal conduct” or, “part of the same short spurt of criminal offending conduct which was the product of a relapse into drug abuse.”

40. It was said that the limited concurrency between the Refshauge J sentence and the one imposed by the sentencing judge meant that the effective aggregate sentence was disproportionate to the overall objective seriousness of the offences which occurred between 20 November 2015 and 8 January 2016. (Appellant’s written submissions at [33]).

41. The appellant’s counsel made no criticism of the Refshauge J sentence. The error made by the sentencing judge was a failure to backdate his aggregate sentence further to much the same extent that the Refshauge J sentence that been backdated to overlap with the Penfold J sentence by more than 13 months

42. Approaching the matter from the perspective of “totality”, Refshauge J gave a sentence of 4 years and 6 months (which itself was backdated by some 13 months) with a consequent increase in the parole period of two years and one month. On top of this the sentencing judge added a “net sentence” of 2 years, 9 months and 15 days with a further consequent increase in the parole period of 22 months. Has there been a flawed approach by the sentencing judge in reviewing the impact of the sentence he imposed in considering the total criminality involved? Does the sentence need adjustment so that it conforms to a just and appropriate sentence?

43. We have previously set out the sentencing judge’s reasoning and approach in [6] and [33] above. We can find no error in that approach. The sentencing judge had regard to the structure of each of the two previous sentences and their accumulations and concurrencies. He had also regard to the criminality overlap between his sentence and that of the sentence imposed by Refshauge J. There remains, under this ground, only the question of what is essentially equivalent to a manifest error.

44. It is argued under this ground by the appellant that although the process employed concerning “totality” may be correct, the conclusion drawn was not. The sentence is said to be unreasonable or plainly unjust. Counsel for both the appellant and the respondent agreed that this aspect of totality and manifest error below would yield the same result.

Manifestly Excessive

45. The most recent statement in this jurisdiction of the principles governing the ground of manifest excessive sentence is set out in Williams v The Queen [2018] ACTCA 4. That case from [21] to [27] contains a comprehensive statement of those principles and draws from numerous cases. Both parties accepted that statement. It is not necessary to set out again that body of authority here.

46. The first matter to take note of is the maximum penalties for the offences as a yard stick (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31]). In that regard aggregated burglary carried 20 years, property damage 10 years as did theft. Making off without payment carried 2 years and each of the 4 counts of obtain property by deception 10 years each. For the offences before Refshauge J, there were counts of burglary, 14 years, theft, 10 years, taking a motor vehicle without consent, 5 years, and driving a motor vehicle without consent also 5 years.

47. The sentencing judge’s consideration of the objective seriousness of the offences began by the observation that the offences, were, “in the scheme of criminality, unremarkable ones engaged in by a drug offender. They unfortunately represented the continuation of a pattern of behaviour largely driven by ongoing illicit drug use.” The sentencing judge assessed the burglary as being low to mid-range of objective seriousness, the property damage as being mid-range and the theft of the property as being in the low to mid-range. The other offences were low range for those offences.

48. These latter offences involved modest amounts of money and did not attract other than corresponding modest sentences.

49. There was no challenge to the sentencing judge’s determination as to objective seriousness.

50. The sentencing judge did find that there was a pattern of behaviour, obviously found that the offending occurred within a short space of time and found that it was directed to satisfying the appellant’s need for drugs, being the common cause of his multiple offending. The sentencing judge was obliged to take these matters into account and he did so.

51. However, those circumstances alone do not entitle an appellant to the degree of leniency as sought from the impact of the weight of the total criminality. To characterise an offender’s criminal conduct along the lines that it was a single multi-faceted course of conduct, part of a short spurt of offending and the product of a relapse into drug use is an explanation relying on a “common underlying condition” but does not necessarily diminish the criminality involved by itself. That is not to say that such a finding does not operate upon sentencing considerations. The discussion in Ryan v The Queen (2001) 206 CLR 267 at [126] to [129] is instructive as to the way such a finding may operate together with the aims of the criminal justice system reflected, in this jurisdiction, in section 7 of the Crimes (Sentencing) Act 2005 (ACT). The critical question that arises is whether the sentences imposed properly reflect the outcome of the consideration of that course of conduct (Johnson v R (2004) 205 ALR 346 at [5]).

52. The sentencing judge made additional findings of fact and applied those findings. Relevantly, those finding were:

(a) The appellant’s criminal history and the conclusion that that history means that there is little room for leniency.

(b) That none of the appellant’s prior custody was solely attributable to the offences

(c) Numerous custodial penalties imposed in the past have not been sufficient to deter the offender from serious criminal conduct.

(d) A number of subjective considerations were taken into account including prospects of rehabilitation, which it is not necessary to set out.

(e) Notwithstanding those subjective considerations, the sentencing judge concluded that specific deterrence and protection of the community remained significant sentencing considerations.

(f) It was appropriate to moderate the length of the parole period as a consideration of “totality” whilst at the same time noting that a lengthy period subject to supervision on parole may lead to a change in behaviour when released into the community

53. It is well-established that arguments of manifest excess do not allow for much argument or elaboration. A sentence is either manifestly excessive or it is not. When the above findings are added to the structure of sentences set out above the totality of the sentence cannot be said to be unreasonable or plainly unjust taking all relevant matters into account.

54. It is to be remembered that this Court does not intervene to conduct the sentencing itself. This Court will intervene only where there is error. That is the same position as in New South Wales and it was recently restated there by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R [2017] NSWCCA 221 at [443] where it was said:

55. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. 2. It is not to the point that this Court might have exercised the sentencing discretion differently. 3. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. 4. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

56. The appeal will be dismissed.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Acting Justice Robinson.

Associate:

Date: 14 December 2018