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IN THE SUPREME COURT OF THE ) No. ACTCA 49 - 2011

) No. SCA 46 of 2011

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROBERT LACHLAN WICKEY

Appellant

AND: THE QUEEN

Respondent

Judges: Penfold, North JJ, Nield AJ

Date: 2 August 2012

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. Robert Lachlan Wickey was sentenced by Magistrate Doogan on 20 April 2011 to a total of five years imprisonment.

The sentencing

2. The head sentence was made up of sentences for eleven different offences, being one burglary, two thefts and three minor thefts, two damage property offences, an assault, one offence of possession of methylamphetamine and one fail to appear, as follows:

(a) for the burglary, there was a sentence of three years imprisonment;

(b) for the theft that was associated with that burglary, 12 months imprisonment concurrent with the burglary sentence;

(c) for another theft, 12 months imprisonment on top of that original three years (bringing the sentence up to four years);

(d) for an assault, three months imprisonment on top of that four years imprisonment;

(e) for a minor theft, a further three months imprisonment on top of the assault sentence (bringing the total term to four years and six months);

(f) for possessing a prohibited substance, six months imprisonment concurrent with the assault sentence and minor theft sentences;

(g) for a second minor theft, a further three months imprisonment on top of the earlier minor theft sentence, bringing the total sentence to four years and nine months;

(h) for the two damage property offences, three months imprisonment, each being accumulated on the first minor theft sentence and therefore concurrent with the sentence for the second minor theft;

(i) for a third minor theft, three months imprisonment, concurrent with the two damage property sentences; and

(j) for the fail to appear, six months imprisonment cumulative on the first minor theft sentence (and therefore partially concurrent with some of the other offences) but bringing the total term of imprisonment to 5 years.

The offences

3. There were some unpleasant aspects to several of the offences. For instance, the burglary took place at night and involved Mr Wickey entering a bedroom in which a woman was asleep, taking her handbag and its contents, and leaving his knife on the premises. Fortunately, his victim did not wake up. One of the thefts involved Mr Wickey taking a handbag belonging to an elderly woman from her shopping trolley, which she had momentarily looked away from. One of the damage property offences was caused by Mr Wickey masturbating to ejaculation while wearing clothes he was trying on in a shop.

4. On the other hand, the quantity of prohibited substance possessed by Mr Wickey was little more than a trace, and the amounts stolen in the various thefts, and the value of the property damage offences, was relatively small. Indeed, all the thefts, not just three of them, could have been charged as minor thefts with a maximum penalty including only six months imprisonment. The assault occurred when Mr Wickey knocked into a customer as he ran out of a shop where he had stolen the shop assistants’ handbags.

5. The police Statement of Facts referred to the knife that Mr Wickey left in the burgled house, and this certainly adds a disturbing dimension to the burglary. Her Honour referred to the knife in her sentencing remarks, saying, “It is also serious because of the aggravating factors associated with it. He used a knife to gain entry”. However, Mr Wickey was not charged with aggravated burglary, as would seem to have been available on the basis that he was carrying an offensive weapon, and nor did the Statement of Facts suggest that the knife had been used to gain entry. This means that Magistrate Doogan may have fallen into a De Simoni error (R v De Simoni (1981) 147 CLR 383) in that her Honour may have treated the knife as an aggravating factor in the burglary. Subjective circumstances

6. Her Honour noted that Mr Wickey is an indigenous man who is largely uneducated, suffers from haemophilia, and has a history of illicit substance abuse which seems to be the main cause of his regular offending. His criminal history was substantial and her Honour was justified in finding that it entitled him to no leniency. She was also justifiably sceptical about his professed determination to overcome his drug problems, especially in the light of his indication to the Pre-Sentence Report author that he would undertake rehabilitation in a residential rehabilitation facility in the community, but not in the Alexander Maconochie Centre. Appeal to Supreme Court

7. Mr Wickey appealed to the Supreme Court against his sentence. He was represented on the appeal, and at the Supreme Court hearing his counsel sought and was permitted to amend the grounds of appeal. Following that amendment, counsel argued two grounds, being first, that one of the sentences was manifestly excessive and, secondly, that her Honour had failed to properly apply the totality principle.

8. We note that, by consent, the appeal Judge adjusted Mr Wickey’s sentence to take account of two days in pre-sentence custody that her Honour had overlooked in the original sentencing.

9. His Honour also accepted that the sentence challenged, being six months imprisonment for possession of 0.142 grams of powder containing methylamphetamine, was excessive, and that her Honour had not taken proper account of the absence of evidence about the pure weight of the drug found in Mr Wickey’s possession. His Honour reduced the sentence of six months to one month. However, because that sentence was in any case to be served wholly concurrently with other sentences, the reduction made no difference to the total length of the head sentence.

10. His Honour then considered the totality argument. The sentencing Magistrate had explicitly referred to totality, saying, “I am also mindful, because of the number of offences that I have, of the totality principle in sentencing.” Accordingly, counsel needed to establish that despite adverting to the principle, her Honour had failed to apply it.

11. As already outlined, the sentencing Magistrate had provided for many of the sentences to be served concurrently with at least one other sentence, while also entirely accumulating a total of five sentences for offences committed in five different incidents on four different days. The Judge on appeal said: It is clear from the statements made by her Honour in the course of sentencing the appellant that she did turn her mind to the question of totality. The argument which is put before me is that the total sentence imposed by her Honour was so manifestly excessive as to lead to a conclusion that her Honour misapplied the totality principle.

12. His Honour then referred to the principles relevant to sentence appeals set out by the High Court majority in House v The King (1936) 55 CLR 499 at 504 as follows: But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against the exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

13. That statement from the High Court refers to the specific errors that may be identified in the exercise of a sentencing discretion. The possibility of relying on manifest excess or inadequacy to allow the inference of an otherwise unidentifiable error is provided by the following words in House v The King at 505, which were not quoted by his Honour: It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

14. See also Dinsdale v The Queen [2000] 202 CLR 321, in particular at [58] to [60], Kirby J.

15. His Honour the appeal Judge then went on: I am unpersuaded that the total sentence imposed by her Honour was so excessive as to reveal error in the application by her Honour of the totality principle.

16. As we understand it, the appeal Judge’s approach was that since her Honour had turned her mind to the question of totality, she could not be said to have fallen into specific error in relation to totality, but that if the sentence were nevertheless manifestly excessive, that might have suggested error in the application of that principle so as to justify appellate interference with the sentence. We would not criticize that reasoning. However, we are not persuaded that the appeal Judge was correct in finding, as his starting premise, that her Honour’s statement that she was mindful of the totality principle was a sufficient basis in the circumstances to accept that she had applied that principle.

17. The totality principle was set out by the High Court in Mill v The Queen [1988] 166 CLR 59. The Court’s explanation, at 62­63, bears repeating: The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. … pp 56-57 as follows: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’. See also Ruby, Sentencing, 3rd ed. … pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable the former is to be preferred.

18. That is, where totality is an issue, the sentencing court: must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself, what is the appropriate sentence for all the offences.

19. Magistrate Doogan made some effort to explain how she had reached the five-year sentence she was imposing in terms of adding up the various sentences to reach that total of five years. However, there is nothing in her sentencing remarks to indicate that, despite having mentioned the totality principle, she had given any thought to whether that five-year sentence properly reflected the totality of Mr Wickey’s criminal behaviour. Court of Appeal consideration Error by the sentencing Magistrate

20. We note first that judicial compliance with a legal requirement cannot be achieved simply by a recital of the requirement and a declaration of compliance, if other aspects of the judicial officer’s reasons or his or her decision indicate that the requirement has not been adequately complied with.

21. We have already noted that, apart from the burglary, the offences were in many ways relatively minor, albeit unpleasant, examples of the relevant offences. We are not convinced that her Honour could have been satisfied, if she had asked herself what might be described as the totality question, that in those circumstances, and having regard to Mr Wickey’s subjective circumstances, a sentence of five years imprisonment was necessary to reflect the overall criminality. Counsel for the respondent Crown in fact conceded that the five-year sentence was on the high side and that as such an explanation for its severity, by reference to the offences or to Mr Wickey’s subjective circumstances, could have been expected.

22. On this basis, we consider that Magistrate Doogan fell into error in relation to the application of the totality principle.

23. Having found that specific error, it is not necessary to rely on an error that can only be inferred from a finding that the sentence was manifestly excessive. The appeal judge’s conclusion that there was no error in Magistrate Doogan’s application of the totality principle, because the sentence was not manifestly excessive, must also be set aside. Re-exercising the sentencing discretion

24. Before re-exercising the sentencing discretion, however, we must also be satisfied that another sentence would be appropriate. This conclusion is implicit in our finding that Magistrate Doogan could not have asked herself whether five years imprisonment was necessary to reflect the totality of Mr Wickey’s criminal behaviour because, if she had, she could not have given a positive answer to the question.

25. Having regard to the sentences routinely imposed in the Supreme Court for burglaries and associated thefts, but taking account also of Mr Wickey’s poor criminal record and fairly unconvincing prospects of rehabilitation, we consider that a more appropriate total sentence for Mr Wickey’s offending would be in the order of four years and three months, made up as follows: (a) for the burglary and associated theft, two and a half years imprisonment and six months imprisonment, to be served concurrently; (b) for the theft of the elderly woman’s handbag, nine months imprisonment fully accumulated on the burglary sentence, giving a total of three years and three months; (c) for the two minor thefts in the one shop and the associated property damage offence, three months imprisonment each, and for the associated assault and the fail to appear offence, six months imprisonment each, all to be served concurrently but fully accumulated on the first handbag theft sentence, bringing the total sentence up to three years and nine months; (d) for the second property damage offence, three months fully accumulated on the assault sentence, giving a total sentence of four years; (e) for the last minor theft, three months, and for the drug possession offence, one month, concurrent with each other but fully accumulated on the second property damage offence, which adds three months to the four years previously imposed.

26. The non-parole period set by Magistrate Doogan was three years, representing 60% of the total sentence that her Honour imposed. Having regard to Mr Wickey’s apparently poor prospects of rehabilitation left to himself, and to his very poor criminal record, we consider that a longer proportionate non-parole period is appropriate. So we would set a new non-parole period of two years and 10 months, which represents 67% or two-thirds of the total sentence. Correction of drug possession charge

27. Before formally re-sentencing Mr Wickey, we note the Crown’s advice that methylamphetamine is a drug of dependence and not a prohibited substance, and that charge CC2010/3512 should therefore be amended to refer to a drug of dependence rather than a prohibited substance, and to s 169(1) rather than s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT), and we so order.

28. In making this order, we note that the penalties for the two offences are the same and that, while we hesitate to accommodate this kind of carelessness in the preparation of charges, we are satisfied that if the problem had been identified in the Magistrates Court the charge would have been amended, and that no injustice is done by the amendment at this stage. We also note that this order will require an amendment to the Court documents and to Mr Wickey’s criminal record as kept by the AFP. Re-sentencing

29. Mr Wickey, please stand. Your appeal is upheld to the extent necessary, as already indicated, and you are re-sentenced now to imprisonment for a total period of four years and three months, made up of the periods that we have already specified. That sentence is backdated to 17 April 2011 and will run till 16 July 2015. The non-parole period will be two years and 10 months and will expire on 16 February 2014. You may sit down. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 28 August 2012

Counsel for the Appellant: The appellant appeared in person

Counsel for the Respondent: Mr S Drumgold

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 2 August 2012

Date of judgment: 2 August 2012

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