Jarvis v The Queen (1993) 20 WAR 201

Mill v The Queen (1998) 166 CLR 59

R v Ford (1998) 103 A Crim R 501

R v Holder (1983) 13 A Crim R 375

R v Shaw (1989) 39 A Crim R 343

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

1 KENNEDY J: On his own pleas of guilty, the applicant was convicted in the District Court of Western Australia on 7 February 2000 of 28 counts of receiving stolen goods. Those counts were contained in two indictments and covered a period from 1 December 1995 to 16 October 1997. On 24 February 2000, the applicant pleaded guilty in the District Court to three counts in a third indictment, two of those counts alleging that, on or about 3 October 1997, he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another and one count alleging that, on or about 3 October 1997, he had in his possession a quantity of cocaine with intent to sell or supply it to another. As a result, he was declared a drug trafficker under s 32A of the Misuse of Drugs Act 1981.

2 At the time of the applicant's sentencing on the counts the subject of this application, he was already serving a sentence of 4 years and 6 months' imprisonment, with eligibility for parole, for two convictions for offences committed on 23 April 1997, the first for possessing 4.3 grams of amphetamine of 7 per cent purity and the second for possessing 54.9 grams of amphetamine of a purity ranging from 7 to 9 per cent with intent to sell or supply it to another. The convictions were entered after trial. On 18 June 1999, the sentencing Judge had sentenced the applicant to terms of 6 months' imprisonment for the first offence and 6 years' imprisonment for the second offence, those sentences being directed to be served concurrently. The sentences were backdated to 11 June 1999. The second sentence was reduced to 4 years and 6 months following a successful appeal to this Court, differently constituted. The two sentences were still directed to be served concurrently.

3 On 24 April 1997, the police had conducted a search of the applicant's home in Noranda. Subsequently, on 3, 8, 10 and 16 October 1997, further searches were made of the applicant's home and of another house owned by him. The police found on these premises stolen goods to the value of approximately $35,000. The goods were identified as having been stolen from a variety of places, including, in particular, dwelling houses and commercial premises. The value of the goods, in his Honour's view, was such as to indicate that the applicant was in the business of receiving stolen property. That was a view which was entirely justified.

4 The learned sentencing Judge identified the second count in the first indictment as being the most serious of the receiving offences. Goods to the value of $3,000 had been stolen from a dwelling house. Of these goods, the applicant himself received property to the value of $300 in exchange for his supplying drugs to the person who had supplied that property. His Honour regarded this transaction as being very serious, because it not only encouraged the commission of burglaries but it also encouraged the use of drugs. His Honour considered that, in isolation, an offence of this nature would warrant a penalty of 4 years' imprisonment; but, taking into account the various factors which he identified and, in particular, the plea of guilty which, his Honour accepted, had been foreshadowed at an early stage in the proceedings, he reduced the sentence from 4 years' to 3 years' imprisonment.

5 He then proceeded to fix the sentences for each of the other counts in the first indictment. Those sentences varied according to the place from which the goods had been stolen. He expressed the view that the penalty for a receiver of property stolen as a result of a home burglary should be higher than the penalty for a similar offence committed on commercial premises. No consideration appears to have been given by his Honour as to whether the applicant himself knew the source of the stolen goods. Their source was probably quite immaterial so far as he was concerned.

6 Having regard to the totality principle, his Honour directed that the sentences on each of the eight offences charged in the first indictment should be served concurrently. Those sentences ranged from 6 months to 3 years. The result was an effective head sentence of 3 years' imprisonment in respect of this indictment.

7 His Honour then proceeded to deal with the 20 counts in the second indictment. He adopted the same approach to these offences as he had in relation to the offences in the first indictment. For the counts in this indictment, his Honour imposed sentences ranging from 1 to 2 years' imprisonment. Once again, his Honour, having regard to the totality principle, ordered that each of the sentences imposed in respect of these offences be served concurrently, but cumulatively upon the sentences imposed on the counts in the first indictment, primarily, it seems, for the reason that these offences were committed while the applicant was on bail.

8 In relation to the third indictment, the learned sentencing Judge imposed a sentence of 1 year for the offence of possessing 18.8 grams of powder containing either 0.1 or 1 per cent of methylamphetamine - the material before us referred to both percentages. In relation to the second offence, that of possessing methylamphetamine with intent to sell or supply it to another, his Honour indicated that a range of 3 to 4 years' imprisonment would have been appropriate, but "taking into account his plea of guilty", and "also to some extent the totality principle", he imposed a sentence of 2 years for this offence. The quantity involved was 39.4 grams of methylamphetamine, having a purity of 4 per cent. The drug was found on the applicant's property, in a palm tree, concealed in two plastic bags. With respect to the final offence, that of possessing cocaine with intent to sell or supply it to another, the quantity involved was 7.8 grams. It was of a purity of 10 per cent. The drug was found in a plastic bag in a refrigerator. The learned sentencing Judge imposed a sentence of 18 months' imprisonment for this offence. He ordered that all the sentences imposed in respect of this indictment should be served concurrently.

9 The learned sentencing Judge then ordered that the sentences imposed in respect of each of the three indictments, which in each case were ordered to be served concurrently, should, as between themselves, be served cumulatively. His Honour proceeded on the basis that the sentences which he was imposing in respect of the offences charged in the three indictments before him were "entirely separate" from the other sentences which had been imposed recently by this Court. He therefore did not take into account the impact of those sentences on the totality of the sentences he was imposing.

10 The end result was that the applicant was sentenced by his Honour to an effective head sentence of 7 years' imprisonment, which was directed to be served cumulatively upon the earlier sentence of 4 years and 6 months, making a total of 11 years and 6 months.

11 The applicant now seeks leave to appeal against his sentences on the following grounds:

"1. The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion, by failing to properly apply the principle of totality when imposing the overall term of 7 years' imprisonment cumulative upon the sentence already being served by the applicant.

2. The learned sentencing Judge imposed a sentence that was manifestly excessive in all the circumstances.

Particulars

(a) the applicant's pleas of guilty;

(b) the applicant's prospects of rehabilitation;

(c) the applicant's previous co-operation with authorities.

2.2 Failure to take into account, or alternatively gave insufficient weight to, the effect that the order for cumulation would make to the overall sentence.

3. The learned sentencing Judge erred by misdirecting himself as to the maximum penalty that was applicable to the offences to which the applicant pleaded guilty.

Particulars

His Honour sentenced the applicant on the basis that the Criminal Code stated "that the penalty for receiving is the same as that for the offence as a result of which the goods were received or obtained by the co-offender".

4. The learned sentencing Judge erred by treating the receiving of stolen goods by the applicant in exchange for drugs as an aggravating factor.

Particulars

The applicant admitted that with respect to the goods referred to in count 2 upon indictment 211 of 1998 [the first indictment], he had received them in exchange for a small quantity of amphetamine. The learned sentencing Judge considered this to constitute a very strong aggravating factor."

12 The totality principle, which is raised in ground 1, was conveniently summarised by McHugh J in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, at 307 - 308:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved (see Mill v The Queen (1988) 166 CLR 59 at 63). In Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536, at 541, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi (Unreported; Court of Criminal Appeal of SA; 20 April 1988):

'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged (R v Holder [1983] 3 NSWLR 245, at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences (Holder [1983] 3 NSWLR 245, at 260).

Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing Judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.

The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon ((1994) 71 A Crim R 459, at 466):

'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the Judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.' "

13 That passage must now be read in the light of Pearce v The Queen (1998) 194 CLR 610, in which McHugh, Hayne and Callinan JJ said, at 623 - 624:

"To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59)."

14 As I have already indicated, the learned sentencing Judge failed to have regard to the sentences which the applicant was already serving. He therefore failed to apply the totality principle to all the sentences, to those presently being served as well as to those about to be imposed.

15 Senior counsel for the applicant argued, on the basis of Postiglione's case, that the totality principle applies both in relation to head sentences and also in relation to non-parole periods. Postiglione's case, however, was concerned with a comparison between the sentences imposed upon co-offenders. Furthermore, the non-parole periods were not fixed by statute as in this State, but fell to be fixed by the sentencing Judge in the exercise of his or her discretion. The factual situation and the legislative background were quite different in Postiglione's case.

16 Senior counsel for the applicant then contended under ground 2.2 that the effect of the orders made by the learned sentencing Judge in respect of the present offences, having regard to the sentencing legislation, increased the applicant's non-parole period from 50 months to 68 months. In arriving at this conclusion, he relied upon the provisions of s 8 of the Sentence Administration Act 1995. That section provides as follows:

"8(1) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order:

(a) firstly, those that are not parole terms are to be served according to whether they are concurrent or cumulative with one another;

(b) secondly, the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent or cumulative with one another;

(c) thirdly, unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served according to whether they are concurrent or cumulative with one another.

(2) If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly cumulatively on another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (1).

(3) In this section -

"fixed term" includes a period of imprisonment ordered under sections 58 or 59 of the Sentencing Act 1995;

"non-parole period", in relation to a parole term, means the period that under section 93 of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole."

17 By s 6 of the Sentencing Administration Act, words and phrases in the Part of the Act in which s 8 finds its place have the same definition as in Pt 13 of the Sentencing Act 1995. In s 85, which is to be found in Pt 13 of the Sentencing Act, "fixed term" is defined to mean a term that is not a life term, and "parole term" is defined to mean a term to which a parole eligibility order applies. In this case, all the terms of imprisonment imposed upon the applicant were fixed terms. They were also parole terms, a parole eligibility order having been made with respect to each of them. Accordingly, s 8(1)(a) has no application and pars (b) and (c) of s 8(1) apply, with the result that the non-parole periods of each sentence, and the balance of the terms until the prisoner is released on parole, are to be served according to whether those parole terms are concurrent or cumulative with one another.

18 By s 94(1) of the Sentencing Act it is provided that, in the case of a prisoner serving two or more parole terms, the time when he or she is eligible to be released on parole, and the parole period for such a prisoner are to be calculated by reference to the aggregate of those terms, but only if under s 94(2) or (3) those terms are to be aggregated. Subsection (2) provides that a parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1), unless it is to be served partly cumulatively with that other term. The exception has no application in this case. Subsection (3) provides that a parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of subsection (1), unless it is to be served concurrently with that other term or partly cumulatively with it. Once again, the exception has no application. Accordingly, by s 94, the non-parole periods are required to be aggregated.

19 Section 93(1) determines when a prisoner is eligible to be released on parole. In this case, the aggregate of all the terms exceeding 6 years, the applicant will be eligible for parole when he has served 2 years less than two-thirds of the aggregate term of 11-1/2 years. When so aggregated, the result is as senior counsel for the applicant indicated. This is the result of the Act operating upon the sentences which the Court imposes, and it is not for a sentencing Judge either to increase or to reduce the head sentence in order to avoid the impact of the Act - see R v Yates [1985] VicRp 3; (1985) 13 A Crim R 319 at 322 and following and re Jackson [1997] 2 VR 1. In the latter case, Calloway JA warned (at 3) that sentencing Judges should not speculate as to decisions which may or may not be taken by Parole Boards.

20 All the offences could have been dealt with at the same time, having all been committed prior to the first sentencing having taken place. Had all the offences been so dealt with, and the parole terms aggregated, there could have been no reasonable complaint on this ground. The result would be quite anomalous if the applicant were to benefit from the sentences being imposed on separate days.

21 The next issue, raised in ground 3, concerned the maximum penalty under the Code for receiving stolen property knowing it to have been stolen. By s 414 of the Code, it is relevantly provided:

"Any person who receives any property which has been obtained by means of any act constituting an indictable offence ... knowing the same to have been so obtained, is guilty of a crime.

The offender is liable to -

(a) the greatest punishment provided for the kind of offence by means of which the property was obtained; or

(b) imprisonment for 14 years,

whichever is the lesser."

22 Stealing, by s 378, if no other punishment is provided, carries a sentence of imprisonment of 7 years. Stealing in particular cases carries sentences of imprisonment from 8 to 14 years in length, whilst burglaries (other than those dealt with on summary conviction) also carry penalties ranging from 8 to 14 years - see s 401. His Honour, however, sentenced on the basis that the penalty for receiving is the same as that for the offence as a result of which the property had subsequently been received or obtained, without having regard to the express terms of the counts in the two indictments. The consequence of this would be that, for property obtained in circumstances of aggravation, for example, while the indictable offence was a robbery and the offenders were in company, or were armed, and whether or not the receiver was aware of the circumstances of its being obtained, he or she would be liable to a maximum sentence of 20 years. It was accepted by both counsel that the maximum sentence for the receiving offences for which the applicant was to be sentenced was 14 years. In the first and second indictments, however, the indictable offence identified was that of stealing and the applicant was alleged in each count to have received the property in question "which had then lately been stolen, then well knowing it to have been stolen" - cf Form 251 in the Criminal Practice Rules. In these circumstances, in my view, no sentence greater than 7 years could be imposed. In this case, the maximum sentence imposed by the learned Judge was 3 years' imprisonment so that the relevant sentences fell within the permissible range, although the extent to which, if at all, his Honour was influenced by what he perceived to be the maximum sentence for receiving, is not known.

23 Ground 4 has, in my opinion, been made out, in that his Honour treated the circumstances of the proceeds of the stolen property the subject of the second count in the first indictment as a very serious or strong aggravating factor, the applicant having admitted that he had exchanged the stolen goods for a small quantity of drugs. He was not, however, charged with the sale or supply of drugs. It is well established that a person should not be punished for an offence of which he has not been convicted - see R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, R v Medcraft (1992) 60 A Crim R 181 and R v Newman [1997] 1 VR 146.

24 The remaining ground of appeal, ground 2.1, relates to the claimed failure of the sentencing Judge to give sufficient weight to the applicant's pleas of guilty, to his prospects of rehabilitation and to his previous co-operation with authorities.

25 In Atholwood v The Queen [1999] WASCA 256, at par 9, Ipp J said:

"A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial, inconvenience to witnesses and delay to other cases in the list. This is so even when the case of the prosecution is strong : Simpson v The Queen (1993) 68 A Crim R 439, R v Doyle (1994) 71 A Crim R 360. Of course, the mitigatory effect of such a plea is not as strong as a plea made at the earliest opportunity by an offender who expresses genuine contrition. That is because the earlier the plea is made, the greater the savings to the administration of justice and genuine remorse is an indication of an intention to reform and is conduct that tends to show that the offender is unlikely to offend again : R v Gray [1977] VicRp 27; [1977] VR 225 at 230-231. Thus, the timing of the plea (and the general circumstances of the offence) would have a bearing on the credit to be given therefor : R v Holder [1983] 3 NSWLR 245; R v Bulger [1990] Qd R 559."

26 His Honour then went on to discuss the position where a plea of guilty is delayed while negotiations take place with respect to the withdrawal of certain charges. He indicated that when this occurs, as it did in the present case to some extent, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled.

27 The learned sentencing Judge, in his sentencing remarks, indicated that he had given consideration to the appropriate discount to reflect the comments made by Ipp J with respect to discounts. He did not specify the particular discounts, and he was not obliged to do so. The point should be made, however, that there is very little information before us on which to base any discount. We have, for example, no information as to when the first initiative was taken by the applicant to convey to the Crown prosecutor his intention to plead guilty to at least some counts in the indictment.

28 In relation to the applicant's prospects of rehabilitation, this is largely a matter of conjecture. He appears to have combined an apparently useful life with serious criminal activities over a not insignificant period of time. He stood in no need of augmenting his income by resorting to crime. The applicant was clearly deeply involved in the receipt of stolen property from a wide variety of sources, as well as being involved in the distribution of illegal drugs. They were not isolated offences. As has been said on many occasions, in the case of persons who facilitate the disposal of stolen property and make it worthwhile for those committing burglaries and the like offences to continue to commit them, a deterrent sentence is normally called for. I would attach little weight to the factor of rehabilitation in this case, although I accept that the applicant's antecedents revealed only sporadic, and relatively minor, offending.

29 So far as his previous co-operation with the authorities is concerned, as Burt CJ said in Hayes v R [1981] WAR 252, at 254:

"Informers, of course, come in all shapes and sizes and are motivated by many considerations. About such things the sentencing Judge must make his own judgment. But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account."

30 The circumstances here are unusual, but it was claimed that they fell within the fifth of the six propositions carefully formulated by Wells J in R v Golding (1980) 3 A Crim R 26, at 36:

"Where a prisoner is shown to have been an informer (whether in the matter in which he has been convicted or some associated matter or matters, or in some matter or matters that has or have no direct relation to the offence for which he has been convicted), the Court, other considerations apart, will be disposed to show leniency to mark the good he has done and in furtherance of the policy embodied in par 3 above. This paragraph is subject, amongst other considerations, to what is said in par 6(d) below."

31 Paragraph 3 in the judgment of Wells J stated that courts are opposed to the precept that there should be honour among thieves and, all other considerations apart, sentences and published reasons for them should be so adjusted as to further that opposition. Paragraph 6(a) was as follows:

"The effectiveness of the prisoner's work as an informer should be appraised: for example, whether large quantities of stolen property or illicit drugs have been recovered; whether persons guilty of wide scale criminal operations have been brought to justice; whether crimes that would have otherwise been difficult to detect or to resolve have been effectively cleared up."

Reference may also be made to R v Kelly (1993) 30 NSWLR 64, per Mahoney JA at 70, and to R v Schioparlan (1991) 54 A Crim R 294. In the latter case, at 305, Young CJ in the Victorian Court of Criminal Appeal emphasised that every such case must depend upon its own facts and that the discretion of the sentencing Judge should not be unnecessarily circumscribed.

32 The applicant's co-operation related to complaints alleging the theft by police officers of $3,000 and a photograph from his home during the execution of a search warrant. This was said to justify a discount in his sentences. An inquiry had in fact been instigated by a neighbour of the applicant, who had tape recorded a telephone conversation between a detective and the Duty Sergeant in which the detective made what appeared to be a self-incriminating comment. The applicant also complained about improper conduct on the part of the detective, under whose work station at the office of the Drug Squad the photograph had been discovered. The Internal Affairs Unit of the Police Service investigated the complaint. However, it found inconsistencies in the recollection of events not only on the part of the two opposing groups, that is the applicant and his partner Ms Steele on the one hand, and the police officers on the other, but also between the individuals within those two groups. It was stated by the Unit that there was insufficient evidence to provide a basis for bringing a charge of stealing. However, the circumstances in which the photograph was found in the Drug Squad offices and Ms Steele's information concerning the detective, which had highlighted his unacceptable conduct at the applicant's premises on the night of the search, had resulted in the detective being served with a notice of intention to remove him from the Police Service. We were given no further information regarding the outcome of that matter.

33 I am not persuaded that the learned sentencing Judge was in error in declining to allow a discount to the applicant for his co-operation over and above the discount of 25 per cent which had been already allowed by the Court of Criminal Appeal in respect of the applicant's earlier sentences. Scott J, in the Court of Criminal Appeal, pointed out that the applicant's assistance to the authorities was substantially self-motivated and was used in the trial for the purpose of gaining a forensic advantage by extensive cross-examination of the detective. Clearly, each case is to be looked at in the light of its facts, but it would be far more unusual than not for co-operation with police to have resulted from self motivation. In all the circumstances, in my opinion, no further discount was called for by the learned sentencing Judge in respect of the sentences with which we are concerned.

34 Having regard to the foregoing, the applicant should be granted leave to appeal and his appeal should be allowed. In accordance with s 689(3) of the Criminal Code, the sentences should be quashed and other sentences passed in substitution as this Court thinks should have been passed. Taking full account of the factors which I have discussed, and in particular having regard to the total criminality involved in the applicant's course of offending, including the offences for which he was previously sentenced by the Court of Criminal Appeal, I would substitute the following sentences, while noting that, if considered individually, more substantial terms would have been justified. Included in brackets are the sentences which his Honour imposed.

36 I would direct that the sentences on counts 1 and 4 should be served cumulatively and that the balance of the sentences should be served concurrently with the sentence imposed on count 1. The effective head sentence for the offences in the first indictment would then be 2 years (3 years).

37 In respect of the second indictment, I would substitute the following sentences of imprisonment -

38 I would direct that the sentences on counts 1 and 10 should be served cumulatively, with the balance of the sentences to be served concurrently with the sentences imposed in respect of counts 1 and 10. I would direct that the sentences with respect to the second indictment should be served cumulatively upon the sentences imposed in respect of the first indictment. The effective head sentence in respect of the second indictment would then be 2 years (2 years).

39 In respect of the third indictment, I would substitute the following sentences of imprisonment -

40 I would direct that the sentences imposed on counts 3 and 4 be served cumulatively as between themselves and also cumulatively upon the sentences imposed in respect of the first and second indictments. As should be apparent, these sentences have been significantly reduced as a

result of the application of the totality principle. I would direct that the sentence on count 5 should be served concurrently with the sentence imposed with respect to count 4. The foregoing would result in an effective head sentence of 2 years (2 years) with respect to the third indictment and an effective head sentence of 6 years (7 years) with respect to the three indictments. These sentences should be served cumulatively upon the sentence of 4 years and 6 months already being served by the applicant. I would direct that the applicant be eligible for parole with respect to each of the sentences now to be imposed.

41 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the orders proposed by his Honour.

42 PARKER J: I have had the advantage of reading in draft the reasons now published by Kennedy J. I agree with those reasons and with the orders proposed by his Honour.