Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 55 of 2004, IND 430 of 2004, IND 914 of 2004

Appeal - Criminal law and procedure - Application for leave to appeal against sentence - 4 years' imprisonment for multiple offences cumulative on sentences already being served - Aggregate of 6 years 6 months - 25-year-old offender - Principle of totality - Whether aggregate sentence "crushing" - Whether reasonable prospect of success on appeal - Application for extension of time - Notice almost two years out of time

Hapke v The State of Western Australia [2006] WASCA 188

Jarvis v The Queen (1993) 20 WAR 201

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Magee v The Queen [1980] WAR 117

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

1 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence.

2 The appellant was convicted on his plea of guilty to 10 counts on three indictments before Nisbet DCJ in the District Court at Perth on 29 July 2004. He was sentenced on that date, although the sentence was subject to correction by his Honour on 13 August 2004.

3 The appellant was sentenced to a total of 4 years' imprisonment, to be served cumulatively upon an aggregate sentence of 2 years 6 months imposed in the Perth Court of Petty Sessions on 29 January 2004 and backdated to 27 October 2003.

4 The individual offences and the sentences imposed were:

Stealing motor vehicle and driving recklessly: 1 year 7 months' imprisonment.

Aggravated burglary (two counts): 4 years' imprisonment for each count.

Aggravated burglary (count 1): 4 years' imprisonment.

Aggravated burglary (count 2): 3 years 4 months' imprisonment.

Aggravated burglary (count 3): 3 years 4 months' imprisonment.

Aggravated burglary (count 4): 4 years' imprisonment.

Stealing motor vehicle: 1 year 4 months' imprisonment.

5 His time for applying for leave to appeal against the sentence, as corrected on 13 August 2004, expired on 3 September 2004. It was not until 20 June 2006, almost two years later, that he filed an appeal notice. That notice asserted one ground of appeal, which was that his Honour erred in law by imposing a sentence that was manifestly excessive in all the circumstances, specifically the fact of the appellant's then current term and the common range of sentences imposed for aggravated burglary in particular. He sought an extension of time to file his application for leave to appeal. The application for an extension was supported by an affidavit of Mr Aulfrey, filed on 20 June 2006.

6 Mr Aulfrey deposes that the appellant was legally aided for his plea in mitigation in the District Court but was without funds to conduct an appeal against sentence. Following his sentencing on 29 July 2004, an "inaccuracy" in the sentencing process came to light and defence counsel sought the matter be recalled for correction of sentence. That was heard on 13 August 2004 when the sentences the subject of the application for leave to appeal were imposed. The difference between the two occasions was the decision of his Honour that the sentences ought to be served cumulatively upon the appellant's then current term of imprisonment, rather than concurrently.

7 Mr Aulfrey deposes that in the course of giving his decision on 13 August 2004 the sentencing Judge said that the practical effect of the sentences would be that he would serve about another six months in prison before being eligible for parole. However, the appellant was not released as at that rough date of calculation and became confused. He did not contact his lawyers directly, assuming he would be released at a date in the near future. Eventually his mother sought counsel's assistance for clarification of the matter.

8 The appellant's legal advisers wrote to the Department of Justice in December 2005 requesting clarification and received information from the Department later that month. The appellant's lawyers applied to re-list the matter before his Honour for clarification and, if necessary, a further correction of sentence. His Honour was unavailable and the application came before two other District Court Judges on different occasions, ultimately resulting in a decision in March 2006 that the matter was not appropriate for a correction of sentence and could only be re-visited by way of appeal. Legal aid was granted for an appeal against sentence on 22 May 2006.

9 Given the lengthy delay, the application for extension of time will turn upon the likely prospects of success on the appeal. It is therefore appropriate that I turn to the application for leave to appeal.

10 Having read the appellant's case and formed the preliminary view that leave to appeal might well be refused, in accordance with the policy of this Court I directed the application be listed ex parte for oral submissions. The application was accordingly heard on 22 September 2006. Mr Aulfrey appeared for the appellant.

11 There is only one ground of appeal set out in the Appellant's Case. It is that his Honour erred in law by failing to correctly apply the totality principle by ordering an insufficient reduction of the sentence for totality when all the circumstances dictated that a lesser term ought to have been imposed. The ultimate submission is that the sentence imposed on 13 August 2004 should have been ordered to run concurrently with those then being served by the appellant.

12 The submissions in the Appellant's Case are entirely general. They amount to no more than an assertion that the resulting total sentence of 6 years 6 months' imprisonment was too lengthy by reason of insufficient regard being paid to the totality principle in the circumstances.

13 It is put that in ordering cumulation of the entirety of the sentence, his Honour did not have proper regard to totality in the sense of asking whether the sentence imposed was of such a nature as to crush the appellant's will and desire for rehabilitation, which are said to be evidenced by the shame of his behaviour, genuineness for rehabilitation and good outlook. It is further submitted that the appellant suffered depression and self-defeating tendencies.

14 It was put that this was more than merely despair, but a medically defined condition (which Mr Aulfrey suggested was clinical depression).

15 At the hearing, Mr Aulfrey conceded the point about his Honour's reference to the "practical effect of the sentence" was not the subject of a ground of appeal and disavowed any reliance upon it in that way. I therefore take it that the point is relevant only in that the attempt to "correct" it was the principal reason for the appellant's delay in instituting his appeal.

16 At the date of his sentence by Nisbet DCJ, the appellant had some 20 months to serve of the sentence imposed on 21 September 2004. It follows that the imposition of the cumulative sentence of 4 years' imprisonment resulted in an aggregate term of 5 years 8 months from that date. He was then 25 years of age.

17 As the appellant's submissions were put, they crystallised into two propositions. The first was that the aggregate was disproportionate to the seriousness of the combination of his offending and his antecedents; and the second was that the sentence was "crushing".

18 It is not for me on this application to make any final determination of those propositions or the sole ground of appeal. I am required to consider whether the ground has a reasonable prospect of succeeding on the appeal. Unless I am so satisfied, I must refuse leave to appeal (s 27(2) of the Criminal Appeals Act 2004 (WA)). The application of the statutory test was explained in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473. That is the way I approach it here.

19 There is virtually no information before me (as there was not before the sentencing Judge) about the details of the offences for which the appellant was sentenced in the Court of Petty Sessions on 29 January 2004. The criminality involved is therefore left to be evaluated essentially on the basis of the number and nature of the offences and the punishments actually imposed. It must be accepted that the punishments were appropriate and proportionate to the appellant's criminal culpability to that stage. The point therefore turns on the question whether the aggregate sentence imposed on 13 August 2004 was such, in combination with the existing sentences, as to produce a cumulated sentence which was disproportionate to the overall offending.

20 In that regard, the appellant submits that a lesser sentence, or one to run concurrently with those the appellant was then serving, would have equally achieved the purposes of sentencing. Mr Aulfrey really advanced no further analysis to demonstrate this, beyond asserting the general proposition that the aggregate sentence was disproportionate to the combination of the appellant's offending.

21 I am not persuaded that proposition would have a reasonable prospect of success before the Court of Appeal.

22 The offences were particularly serious. That is apparent from the circumstances as briefly described by his Honour. I do not deal with all the offences. The following are indicative.

23 Both counts on Indictment 430 of 2004 were for aggravated burglary. The first offence occurred when the appellant entered the house of an older couple in their mid-60's and took goods to the value of $6524 after ransacking the house. His Honour observed that photographs within the prosecution brief showed the disgusting way in which the appellant went about committing that crime; for the occupants to have arrived home to see their house in the condition in which he left it must have been greatly distressing to them. His Honour described the second offence on that indictment as "a brazen offence of burglary" whereby the appellant entered the complainant's property with the full knowledge that the house was occupied, with the female owner cooking in the kitchen in full view of the appellant. He nonetheless entered the house because he saw her husband's wallet on a table. There was a confrontation and she threw a plate at the appellant, hitting him on the head.

24 By Indictment 914 of 2004, the appellant was charged with 4 counts of aggravated burglary and 1 count of stealing a motor vehicle. With respect to count 1 on that indictment, there was a confrontation between the appellant and the son of the owner of the premises, causing the boy to flee the house, take his bike and ride off. The appellant on that occasion was armed with the remnants of a pair of scissors. He entered the house and stole goods to the value of $1300.

25 Count 4 involved a burglary in which the appellant smashed his way into the complainant's house in the early hours of the morning, brazenly smashing open the front door. His Honour described the facts of that offence as "truly remarkable". The appellant stole goods to the value of $1210 and the keys to a BMW motor vehicle, which he then stole. The stealing of the vehicle was the subject of count 5 on that indictment.

26 On Indictment 55 of 2004 the appellant was convicted of 1 count of aggravated burglary and 1 count of stealing a motor vehicle and driving recklessly. His Honour described the facts as particularly serious. Whilst a young woman in a state of terror locked herself in her bedroom, he ransacked her house, stole her wallet and the car keys and later her car. The police quickly located the appellant and tried to stop him, but he led them on an exceptionally dangerous chase through suburban streets. When eventually cornered, he fought to escape arrest. Those offences occurred prior to those the subject of the previous two indictments.

27 His Honour then observed that in respect of the fighting to escape arrest, it had become obvious to him only that morning, following the appellant's counsel's submissions, that the appellant had been convicted of the offence of assaulting a public officer on 29 January 2004 in respect of that part of this offending behaviour and had been sentenced to 12 months' imprisonment, cumulative upon a sentence of 18 months' imprisonment imposed in respect of a series of other offences. His Honour said that, had the usual procedure been followed, those matters would undoubtedly have been dealt with by way of a s 32 notice and there would have been a high probability that all of those sentences would have been ordered to be served concurrently with the sentences his Honour was about to impose - or at least there would have been a degree of concurrency. That understanding subsequently proved to be erroneous, and I shall return to it below.

28 His Honour then addressed the appellant's personal circumstances and antecedents. He noted the appellant was regarded as being at high risk of re-offending, had an entrenched drug habit and only little insight into his offending behaviour and empathy with his victims. He noted the appellant had said that many of the offences were committed in a fog induced by his drug addiction. I note that the psychological report records the appellant suggesting that he was pleading guilty to the charges because of his lack of memory and because he did not want to go through the stress of a trial, although he acknowledged that DNA evidence indicated he was responsible for the offences. The report comments that the appellant subsequently indicated that his difficulty with recall "... was a function of his engagement in a much broader course of criminal activity such that a given property did not necessarily hold significance for him in terms of memory. He stated simply that he was supporting a habit and 'would have been going anywhere for money'."

29 Nisbet DCJ observed the appellant was then 25 years of age and had amassed what could only be said to be a terrible record, including three prior offences of burglary, two of which appear to have been aggravated burglaries. He also had offences for breach of bail and escaping legal custody. His Honour allowed for the appellant's early pleas of guilty on the fast track system on the second and third indictments and an early plea of guilty on the first.

"Looking at other sentencing considerations, there is an incredible prevalence of aggravated burglaries in our community, demonstrating a need for a strong general deterrent in sentencing. Parliament, by its stipulation of a maximum penalty of 20 years' imprisonment for this crime, has indicated that courts are to deal with these crimes seriously and recently the Court of Criminal appeal has said on a number of occasions that sentences for aggravated burglaries need to be firmed up.

For you there is a need for a specific deterrent, having regard to your record, and there is a need to punish you for these crimes. In my opinion the community presently needs protection from people like you. There is, however, a very real problem with the totality principle, because if I was to sentence you to separate sentences in respect of each of these offences to be served cumulatively upon one another to give effect to the principle that separate offences should be punished separately and be seen to be punished separately, the total amount of imprisonment would be crushing upon you and this would offend the totality principle.

Accordingly, I have to craft a sentence which reflects, on the one hand, the seriousness of your crimes but, on the other, does not offend the totality principle."

31 His Honour then imposed sentences in respect of each of the offences before him. None of the individual sentences are challenged by the appellant.

32 Finally, his Honour turned to the question whether the sentences should be served cumulatively or concurrently or partially so. He said there were two principles which he bore in mind. The first was that part of the appellant's behaviour for which he was before his Honour had already been the subject of 12 months' imprisonment; and secondly, he was concerned again at the effect of the totality principle. He said that it had been his intention to direct the sentence of 4 years be cumulative upon the unexpired portion of any terms of imprisonment the appellant was then serving, but he had been persuaded otherwise by counsel's submissions.

33 The matter was brought back before his Honour on 13 August 2004, on the application of counsel for the appellant, for correction of sentence. Counsel who then appeared for the appellant told his Honour that some information which he had put to the Court on the sentencing had subsequently been found to be inaccurate. He said he had assumed that the count of assaulting a public officer was the same offence which had been dealt with in the Perth Court of Petty Sessions on 29 January 2004, when the appellant had received a term of some 30 months' imprisonment which included a cumulative sentence of 12 months' imprisonment in respect of an assault against a public officer. He subsequently discovered that contrary to his earlier submissions to his Honour, that had in fact been a different assault. His earlier submission had been because of that, the sentences imposed on 29 July 2004 should have been concurrent. His Honour had relied upon that submission and expressly on that basis had ordered concurrency.

34 Counsel then submitted that the appellant remained a young man and there had been personal difficulties which had been canvassed on the previous occasion. There would be a need to correct the sentence only if the Court was of the view, in light of the new information, that there might be a need to change the sentence. But he submitted the totality principle still had application and nothing might be changed. He acknowledged that if the Court were minded to change the sentence, a cumulative term could result, but that of course was not the application being made on behalf of the appellant.

35 Following further submissions, his Honour dealt with the application.

36 His Honour said that when he received the application for re-sentencing pursuant to s 37(1) of the Sentencing Act 1995 (WA), he had reviewed the materials that were before him on 29 July. He reiterated that all of the offences were serious but some were particularly so. They were aggravated burglaries which resulted in confrontations with homeowners. He noted that when sentencing the appellant previously he had given him full credit for his youth and all of the other mitigating factors, including his very difficult family circumstances. He had, however, taken into account the fact that part of the conduct for which the appellant had come before him had already been dealt with in the court below and had been made the subject of a sentence of a term of imprisonment. That information was subsequently shown to be incorrect. The effect of that was that there was a separate occasion in the appellant's record which related to another event, which made his antecedents worse than his Honour thought they were at the time. He said that he had decided his original intention should be given effect to and the principle that he wished to act on and which he would have done on the previous occasion, was that the group of offences should be seen to be punished separately from the appellant's previous offending behaviour in respect of which he was already serving a sentence of imprisonment. His Honour accordingly recalled the order that the sentences be served concurrently with the unexpired portion of the existing terms and substituted an order that the head sentence of 4 years' imprisonment be served cumulatively with that.

37 It cannot be said that his Honour failed to have regard to considerations of totality, either in the general sense or specifically on the point whether the aggregate sentence would be "crushing".

38 Having regard to the number and nature of the offences, their circumstances and the seriousness of the appellant's offending overall, I do not see a reasonable prospect that the Court of Appeal would be persuaded the aggregation of sentences was disproportionate to the appellant's overall criminality.

39 The next submission was that the aggregate sentence was "crushing". No authority was cited as to what that principle actually requires, nor how it might apply here. Mr Aulfrey submits the appellant had demonstrated a desire for rehabilitation, shame, a good outlook and also suffered depression and self-defeating tendencies.

40 A "crushing" sentence is one which leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the offender if and when he is released; or where it destroys a reasonable expectation of useful life after release (per Ipp J in Jarvis v The Queen (1993) 20 WAR 201 at 205 - 207, referred to with approval in Hapke v The State of Western Australia [2006] WASCA 188 at [98]).

41 I have read the psychological report. I think the submissions advanced on behalf of the appellant, at least with respect to the appellant's mental condition, somewhat overstate the position. I need not canvass here all that is said in the report. I note it does say that there was no evidence to suggest the presence of any clinically significant psychopathology, although some of the testing results indicated pronounced depressive and self-defeating tendencies and some evidence of avoidant and dependent features. There was also some evidence of anti-social features. The writer observed that many of the appellant's underlying depression related symptoms had generally been concealed by his drug use, which had resulted in quite aggressive behaviour on his part as opposed to him adopting a more passive and removed demeanour which is seemingly more apparent when he is not using drugs.

42 The psychologist observed it is apparent that the appellant's drug use has reached such a level that his involvement in crime has been an automatic response and during such times he has been a quite volatile and defensive individual with limited regard for the consequences of his actions or the effects on others. On the basis of his history, the psychologist opined that the appellant clearly represents a very high risk of re-offending, although that risk was likely to be lowered were he able to effectively manage his drug use. He did observe that the appellant impressed as being genuine in his desire to desist from such use and was seemingly intent on curtailing his associations with individuals linked to it. He noted the appellant's focus on religious issues and connection with the Jehovah Witness movement which appeared to offer him an opportunity for more pro-social associations.

43 It is clear, therefore, there were some positive features militating in the appellant's favour. The fact is, however, his Honour expressly adverted to those and made allowance for them. It is apparent those considerations were the reason his Honour made an order that the appellant be eligible for parole, which it seems he would otherwise not have been disposed to do. Nonetheless, these positive features in the appellant's favour were entirely outweighed in his Honour's view by the need to impose an overall sentence which appropriately reflected the gravity of the appellant's offending. Having regard to that, I am not persuaded there is a reasonable prospect the Court of Appeal would conclude that the overall aggregate of 6 years 6 months for all of these offences, imposed on the 25-year-old appellant, could be described as "crushing" in the sense described.

44 This ground has not been shown to have that prospect of success which s 27(2) of the Criminal Appeals Act requires. I would refuse leave to appeal. That being so, the application for extension of time must be dismissed.