State appeal against imposition of sentence - Current sentence imposed - Totality principle - Whether totality principle correctly applied - Application of "double jeopardy" principle - Turns on own facts

Police Act 1892 (WA), s 59

Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321

Jarvis v R (1993) 20 WAR 201

Lowndes v R [1999] HCA 29; (1999) 195 CLR 665

Mill v R (1988) 166 CLR 59

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

R v Churchill [2000] WASCA 230

R v Clarke [1996] VICSC 30; [1996] 2 VR 520

R v Hough [2002] WASCA 42

R v White [2002] WASCA 112

Kenny v Lewis, unreported; SCt of WA; Library No 990113; 12 March 1999

2 On 24 March 2004 in the Court of Petty Sessions at Perth, the learned Magistrate sentenced the respondent to 10 months' imprisonment for breaching a violence restraining order by communicating with the protected person, contrary to s 61(1) of the Restraining Orders Act 1997 (WA), and to 4 months' imprisonment for using threatening behaviour to that same person, contrary to s 59 of the Police Act 1892 (WA). Each sentence was made concurrent with the other and also upon the terms of imprisonment the respondent was then serving in respect of a number of other prior convictions.

3 The appellant does not appeal against the appropriateness of the term of imprisonment imposed in each case, but says that the learned Magistrate erred in law in ordering that the sentences be served concurrently with the sentences the respondent was then currently serving, rather than be served cumulatively upon such sentences, or that, in ordering that the sentences be served concurrently, the learned Magistrate failed adequately to reflect the total criminality of the offending behaviour and the seriousness of that behaviour.

4 The parties accept that the principles upon which this Court must approach an appeal in respect of the exercise of a sentencing discretion are well established. First, it is not sufficient that the Court may take a different view from the learned Magistrate who imposed the sentence. The appellant must show that the learned Magistrate failed properly to exercise his discretion: Lowndes v R [1999] HCA 29; (1999) 195 CLR 665.

5 Second, an appeal by the State should only succeed where one or other of the three primary rules referred to in R v Clarke [1996] VICSC 30; [1996] 2 VR 520, at 522, are satisfied: Lowndes (supra) at 671 - 672; R v Churchill [2000] WASCA 230 at [23] and [24]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [61] and [62]; R v Hough [2002] WASCA 42.

6 Third, where a State appeal succeeds, it is conventional for the appellate Court to impose a substituted sentence towards the lower end of the range of available sentences to avoid the element of double jeopardy involved from the respondent's point of view, on twice standing for sentence: see, eg, Dinsdale (supra) at [62].

7 In this case, having regard to the rules stated in R v Clarke (supra), the appellant says that the sentences imposed reveal manifest inadequacy, or, as I understand the way counsel for the appellant framed his submissions, the sentences are otherwise so disproportionate to the seriousness of the crimes as to shock the public conscience.

The respondent's relevant court history

8 Prior to 24 March 2004, the respondent had been convicted and sentenced on a number of matters that concerned the protected person, who was the respondent's former de facto spouse, including:

(1) two charges of threats to kill, for which the respondent was sentenced in the District Court on 22 February 2002 to 4 years' imprisonment in respect of each charge to be served concurrently;

(2) breach of a violence restraining order, for which the respondent was sentenced in the District Court on 22 February 2002 to 6 months' imprisonment cumulative with the 4 years' imprisonment for the threats to kill charges;

(3) stalking, for which the respondent was sentenced in the Court of Petty Sessions to 3 months' imprisonment concurrent with the sentence he was then serving;

(4) four charges of breaching a violence restraining order, for which the respondent was fined $1600 in total;

(5) breach of a violence restraining order, for which the respondent was sentenced in the Court of Petty Sessions on 9 December 2003 to 4 months' imprisonment cumulative upon the sentence he was then serving;

(6) breach of violence restraining order, for which the respondent was sentenced in the Court of Petty Sessions on 10 March 2004 to 10 months' imprisonment cumulative upon the sentence he was then serving.

The learned Magistrate's sentencing remarks

9 As noted, on 24 March 2004, the learned Magistrate sentenced the respondent on one count of further breach of the violence restraining order in respect of the protected person and one count of using threatening behaviour to that same person. His Worship sentenced on the basis that, when he appeared in the Court of Petty Sessions on another matter on 22 August 2003, the respondent had pointedly said to the protected person, who was also present in the court on that occasion: "I'll cut your throat" and "Watch your back on the way out of court, hey". The Magistrate accepted that when the respondent spoke the words "I'll cut your throat", he motioned with a finger across his throat.

10 The learned Magistrate accepted that these comments were directed to the protected person and intended by the respondent to be heard by her. His Worship also accepted that the respondent intended his comments and actions to do more than just tell the protected person to keep quiet, or not to react in the way that she had to his pleas of not guilty in court that day, and that he intended to threaten her in order to make her alarmed and fearful; and that he achieved his objective.

11 The Magistrate also sentenced the respondent by reference to the court history set out above, which included the respondent's convictions for violent conduct directed to the protected person in the past.

12 The learned Magistrate noted expressly the earlier threats to kill and that the respondent had been convicted of stalking the protected person whilst he was in prison, by means of sending her some 15 separate communications, either directly to the protected person or to her family members, in which communications he had made threats to her safety and welfare.

13 The learned Magistrate concluded that, when the respondent said the things to the protected person that he did while in court on 22 August 2003, the:

" ... only message that could have been received by [her] from the words and conduct of the [respondent] ... in court 38, was a message of future intention to cause her harm. It was entirely consistent with past conduct. The circumstances of the threat to kill which Justice Jenkins dealt with were, as she expressed it, extremely serious, and at the time in indicating that she was refusing to grant him parole, the opinion that she expressed was that he had not changed his attitude towards things at all, that his conduct which was reflected in his previous record up until that time was consistent with what had happened on the night in question".

"The fact that the incident occurred in court and it was the second incident of that type which had occurred in court is an aggravating factor, and a fact of which I have to take into account. It shows ... not so much a defiance of the court but there is an element of that there, but it shows an attitude on the part of the [respondent] that even in circumstances where he is being charged with offences connected with his conduct towards [the protected person] he is still prepared to behave in the same way, namely, make threats to her undeterred apparently by the fact that he had been charged over the offence which was committed in Ms Lane's court. That factor has to be taken into account in assessing ... the overall attitude of the [respondent] and his likely response to sentencing options."

The sentences imposed by the learned Magistrate

15 The learned Magistrate then imposed a sentence of imprisonment of 10 months in respect of the breach of the violence restraining order and a sentence of 4 months' imprisonment in respect of the charge of threatening behaviour.

16 It may be noted in passing that at that time the maximum term of imprisonment for which the respondent might have been sentenced for beaching the violence restraining order was 18 months and for the threatening behaviour was 6 months. Since then, the penalty provision in respect of the threatening behaviour charge has been amended by legislation and imprisonment is not currently a sentencing option in respect of that offence.

17 The learned Magistrate, having determined the appropriate sentences of imprisonment, then turned to the question whether those terms should be cumulative or concurrent. He stated:

"The next question that I have to decide is whether or not there should be any accumulation of terms? I take the view that there shouldn't be, and that all terms should be served concurrently."

18 I interpolate at this point to note that the Magistrate's reference to "all terms" was not only a reference to the 10-month and 4-month terms of imprisonment he had adjudged appropriate for the two offences for which he had just sentenced the respondent, but also a reference to the other terms of imprisonment then currently being served by the respondent.

19 The learned Magistrate went on to explain his reason for saying that all terms should be served concurrently. The first apparent reason for doing so was stated by his Worship in these terms:

"Now, my reason for doing that is partly because I accept that what counsel has said is correct concerning the fact that because of the legal argument which the defendant sought to pursue concerning the matter, that it went before Mr Brown involving communications, contrary to the restraining order which contained threats, these two matters weren't dealt with on that occasion."

20 Counsel for the appellant draws particular attention to this statement by the learned Magistrate because he says it is one of the bases upon which the learned Magistrate apparently determined that the sentences of imprisonment imposed on 24 March should be served concurrently with the other terms the respondent was then serving. The appellant contends that, when the learned Magistrate observed that the two matters were not dealt with earlier on 10 March with the matter for which the respondent was sentenced on that day, he must be taken to have meant that, if the two matters had been dealt with at the same time as the matter on 10 March, a concurrent sentence may have been considered appropriate.

21 I tend to accept this submission by counsel for the appellant, as there would be no particular reason for the learned Magistrate to have made this comment if he did not think there was some merit in the proposition that the respondent might possibly have received concurrent sentences if the two matters he dealt with on 24 March had been dealt with at the same time as the matter on 10 March.

22 The usual approach, as McKechnie J said in R v White [2002] WASCA 112, at [26], (with which other members of the Court agreed) in determining whether to impose a concurrent or cumulative sentence is that:

"There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties."

23 In this case, counsel for the appellant contends that the application of ordinary principles of sentencing could not have resulted in concurrent sentences being imposed in respect of the three matters if they had been dealt with at the same time on 10 March. Counsel draws attention to the separate and distinct nature of the matter the subject of sentencing on 10 March and the two matters the subject of sentencing on 24 March. The matter dealt with on 10 March was yet another occasion where the respondent had directed a written communication to the protected person, whereas the matters dealt with on 24 March involved the direct verbal threats and the other threatening behaviour made or done by the respondent in court on 22 August 2003.

24 While counsel for the respondent suggests that the fact that, on both occasions, the matters involved a course of conduct between the respondent and the protected person, I consider the submissions of counsel for the appellant must be preferred and that, in the ordinary course of the sentencing process, it would be difficult to treat the events that led to the sentence imposed on 10 March as constituting part of a single transaction or a course of conduct that included the events that led to the respondent being sentenced on 24 March. There is a qualitative difference between the relevant conduct of the respondent on each of these occasions. First, the two occasions were separated by a distinct period of time - about a month. Secondly, while it might be said that the conduct of the respondent for which he was sentenced on 24 March exhibited a continuing attitude and course of conduct by him towards the protected person over a protracted period of time, the conduct for which he was sentenced on 24 March was of a nature different from that which had preceded it and involved direct communications and threatening behaviour to the protected person.

25 In my view, there is merit in the submissions made on behalf of the appellant. The conduct of the respondent in communicating with the protected person while she was in court on 22 August 2003 in threatening the protected person as he did and in making gestures of a threatening nature towards her whilst he made those threats on that occasion, were quite separate and distinct from the offending conduct concerning the protected person that led to the respondent's sentence on 10 March 2004. Ordinarily, a judicial officer would not countenance the imposition of a concurrent sentence for the offending behaviour of 22 August 2003, at least on the basis that it was part of one transaction or a common course of conduct.

26 I have explained already that the learned Magistrate seems implicitly to have considered that it might have been appropriate for concurrent sentences to have been imposed if the two matters dealt with on 24 March had been dealt with at the same time as the single matter on 10 March, although I should observe that at no time did the learned Magistrate fully explain why he thought this might have been so. This of itself suggests that the learned Magistrate's comments to this effect should not be given too much emphasis and that his Worship was probably more influenced in making the sentences concurrent by the effect he thought a cumulative sentence might have in all the circumstances.

27 Indeed, the learned Magistrate went on to give further reasons why he considered concurrent sentences were appropriate by adding:

"But I also take into account in deciding as I do that the sentences should be served concurrently, the fact that he's not due for release until early 2005, and to some small extent I think it could be said that were I to impose sentences of that nature and make them cumulative the ... totality principle would be offended, and in that respect I don't think it would have been appropriate to simply reduce the terms of what I consider to otherwise be an appropriate sentence, merely to make them cumulative and to accommodate that principle. I see little purpose in - - would be achieved in - - in extending for a short period the time that he is going to serve."

28 In this passage of his sentencing remarks the learned Magistrate appears to provide a more substantive reason why he considered concurrent sentences were appropriate. As counsel for the appellant acknowledges, it was appropriate for his Worship to make the two sentences imposed on 24 March concurrent with each other as they related to the behaviour of the respondent in court on the one occasion; there is no debate about that. If the learned Magistrate had made the effective head sentence of 10 months' imprisonment for the two offences (10 months and 4 months respectively) cumulative upon the respondent's other existing sentences of imprisonment, the respondent's expected release date, as of 24 March 2004, in early 2005 would have been extended by a period of 10 months so that the respondent would not have been eligible for release until late 2005. From what the learned Magistrate has stated in this passage, he considered if he were to make those sentences cumulative in that way, then "to some small extent ... the ... totality principle would be offended". It seems, for that reason, the learned Magistrate chose to make the sentences concurrent with the other terms the respondent was then serving. He did not think it would be appropriate "to simply reduce the terms of what I consider to otherwise be an appropriate sentence, merely to make them cumulative and to accommodate that principle".

29 As I understand what the learned Magistrate was saying in this passage of his sentencing remarks, his Worship recognised that the proper sentencing procedure, in accordance with that laid down by the High Court in Pearce v R (1998) 194 CLR 610 at 623 - 624 per McHugh, Hayne and Callinan JJ and Mill v R (1988) 166 CLR 59, required him first to determine what the appropriate sentence was in each case, and then to turn to the question of whether the sentence should be made cumulative upon or concurrent with any other existing sentence being served by the offender, and consider the question of totality of sentence. His Worship considered - although apparently only to a "small extent" - that to add a 10-month head sentence to the respondent's existing terms of imprisonment - or indeed any lesser period - would offend the totality principle. Whilst his Worship did not explain in what respect he considered the totality principle would be offended to "a small extent" by such a sentence, it may be assumed that he considered that a total term of imprisonment to the end of 2005 would be disproportionate to the seriousness of the offending behaviour of the respondent to a "small extent". His Worship also commented that:

"I see little purpose in - - would be achieved in - - in extending for a short period the time that he is going to serve."

In approaching the sentencing exercise in this way, the learned Magistrate accepted, in my view rightly, that it was not open for him to contrive some lesser head sentence than 10 months in order to oblige the respondent to serve a sentence of some period shorter than 10 months after early 2005, although it would have been open to him to make only a portion of the sentence cumulative, the balance concurrent. However, because the learned Magistrate seems to have considered that the imposition of a head sentence of 10 months cumulative upon other sentences then being served by the respondent would offend the totality principle to "a small extent", or that a shorter cumulative sentence would serve "little purpose", he chose instead not to make the sentences of imprisonment cumulative at all with the other terms. For the learned Magistrate, it seems to have been an "all or nothing" decision.

30 Thus, the critical question on this appeal is whether the learned Magistrate erred in the exercise of his sentencing discretion in considering that the totality principle would, in all the circumstances, be offended - even to "a small extent", if a cumulative 10-month head sentence were imposed.

31 So far as the totality principle is concerned, counsel for the appellant drew attention to what was said by Ipp J in Jarvis v R (1993) 20 WAR 201. At 205, his Honour noted that it has often been said that, where the overall sentence for two or more crimes is "crushing", that overall sentence should be reduced, even though each of the terms, when separately viewed, is within an appropriate range. His Honour then asked: when is a sentence to be regarded as "crushing" and when is "enough" to be regarded as "enough"? His Honour observed:

"It is sometimes said that a sentence falls into this category when it leaves the offender of no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release [footnote omitted]."

"Seen in this light the 'crushing' effect of a cumulative or aggregate sentence is no more a mitigatory factor than the crushing effect of a severe sentence imposed for a single offence. It is always the duty of the sentencing court to be justly merciful and the potentially crushing effect of a sentence should always be taken into account as one of the factors relevant in the sentencing process."

"While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos [ (1981) 4 A Crim R 238] (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312."

33 Largely to similar effect, in Jarvis at 211 - 212, Murray J observed:

"Not only is the [totality] principle to be applied when the court is required to sentence for a number of offences on one occasion, but it is to be applied when a court is, or two courts are, required to sentence for a number of offences on different occasions. It is clear that it is again the same question which must be asked. What is the appropriate sentence for the totality of the criminal behaviour? And it does not matter that the totality of the criminal behaviour is comprised of quite unrelated offences which can in no sensible way be described as a series of offences committed in the course of a particular crime spree."

34 Murray J, at 213, confirmed his opinion that the totality principle is an aspect of the fundamental principle that the sentence imposed must be proportionate to the gravity of the crime. Accordingly, where there is a multiplicity of offences and sentences to be passed, the totality of the sentence must be proportionate to the totality of the criminal behaviour involved, whether or not there was any link between the commission of individual offences beyond the identity of the offender and the fact that he must, at the one time, serve the sentences.

35 In Jarvis at 215 - 216, Anderson J also commented to similar effect on the totality principle. However, his Honour also emphasised, at 216, that a sentence may offend the totality principle without being "crushing". His Honour added that:

"In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished (which is to apply the totality principle) the aggregate may be seen to be inappropriately long even although it is not so long as to bring about 'the destruction of any reasonable expectation of useful life after release' (the definition of 'crushing' given in Yates v The Queen [1985] VicRp 3; [1985] VR 41 at 48) or so long that all desire for rehabilitation is likely to be extinguished."

36 The nature of the totality principle has been confirmed in similar terms also in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, at 307 - 308, per McHugh J.

37 Counsel for the appellant says that, in this case, the learned Magistrate erred in applying the totality principle because he accorded undue importance to the subjective effect of a cumulative sentence upon the respondent and failed sufficiently to impose a sentence that reflected the seriousness of the respondent's offending behaviour.

The application of the totality principle

38 There is no doubt, as noted earlier, that the learned Magistrate was fully alert to the seriousness of the respondent's offending behaviour and the alarm and fear it caused in the protected person. Indeed, the imposition of sentences of imprisonment for such behaviour reflected the learned Magistrate's view of the seriousness of the respondent's offending behaviour.

39 The issue is whether, by making the sentences concurrent, the learned Magistrate effectively undid his recognition of the seriousness of the offending behaviour and misapplied the totality principle in this case.

40 In considering this issue, I am mindful of the principles set out in Lowndes (supra) and other authorities: the question is not whether this appellate Court would have imposed a sentence different from that which the sentencing judicial officer imposed, but whether, in all the circumstances, it has been demonstrated that the sentence actually imposed reveals such manifest inadequacy in sentencing standards as to constitute error in principle, or that it is so disproportionate to the seriousness of the crime as to shock the public conscience.

41 In my view, by making the head sentence of 10 months' imprisonment concurrent with other sentences, the respondent effectively went unpunished for his serious offending behaviour towards the protected person in court on 22 August 2003. While it was important for the learned Magistrate to have asked himself the question whether, by requiring the respondent to serve an additional 10 months' imprisonment after early 2005 when his existing sentences expired, the sentence so imposed might be considered disproportionate to the totality of the criminal behaviour for which he had been sentenced, and so offend the totality principle, the alternative of effectively not punishing the respondent for his serious offending of 22 August was, in the circumstances, really not open.

42 The threats made by the respondent to the protected person in the Court of Petty Sessions on 22 August 2003 justified a sentence of imprisonment. The learned Magistrate so found and determined that a head sentence of 10 months' imprisonment was appropriate for the convictions of breaching the violence restraining order and threatening behaviour. However, by making the term of imprisonment concurrent with existing terms of imprisonment the Court removed from the sentence any useful deterrent factor that might bring home to the respondent and other would-be offenders the community's view that such conduct will not be tolerated or allowed to go unpunished. The need for the head sentence to be made cumulative was further emphasised by the particular background to which the learned Magistrate referred when sentencing the respondent that included the respondent's earlier, regular and consistent convictions for conduct directed at the personal safety and well-being of the protected person. In all the circumstances, there was no basis to conclude that a cumulative sentence of 10 months could be considered "crushing" from the respondent's point of view.

43 Accordingly, I consider that, having regard to the serious nature of the offences committed against the protected person, the existence of aggravating circumstances (particularly the fact that the offences were committed during a judicial proceeding) and the number and nature of offences previously committed by the respondent in respect of the same protected person, the imposition of concurrent sentences by the learned Magistrate on 24 March 2004 involved the miscarriage of his sentencing discretion because it failed to reflect the need for general and personal deterrence and placed too much weight on those aspects of the totality principle that have regard to the subjective effect of a sentence on the offender.

44 In these circumstances, I would allow the appeal and resentence the respondent.

45 However, as I have already noted, where a State appeal against conviction of this nature succeeds, it is well established that if the Court decides to resentence the offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

46 In this case, I consider that the learned Magistrate's finding that a head sentence of 10 months' imprisonment for the two offences for which he sentenced on 28 August 2004 was appropriate is correct. The State does not contend otherwise. However, because of the double jeopardy principle, it is not now appropriate for this Court simply to order that the sentence of 10 months' imprisonment be served cumulatively following the expiration of the other sentences the respondent was serving as at 24 March 2004. In all the circumstances, I consider that the principle of double jeopardy should result in the respondent now being resentenced to imprisonment for a term of 6 months cumulative upon the sentences of imprisonment he was serving as at 24 March 2004.

47 For the reasons given above, I consider the State appeal should be allowed and the respondent resentenced.

48 Having regard to the double jeopardy principle, I would resentence the respondent to a term of 6 months' imprisonment to be served cumulatively upon the sentences of imprisonment he was serving as at 24 March 2004.

49 I will hear from counsel for the parties as to the precise terms of the order that should now be made.

• Introduction
• General principles
• The appellant's position
• The respondent's relevant court history
• The learned Magistrate's sentencing remarks
• The sentences imposed by the learned Magistrate
• The question of concurrent sentences
• The totality principle
• The application of the totality principle
• The "double jeopardy" principle
• Conclusion and order