Abbott v The Queen

[2019] WASCA 90

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ABBOTT -v- THE QUEEN [2019] WASCA 90

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   18 FEBRUARY 2019

DELIVERED          :   28 JUNE 2019

FILE NO/S:   CACR 111 of 2018

BETWEEN:   BRENDEN JAMES ABBOTT

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   SMITH J

File Number             :   INS 142 of 1987

Catchwords:

Criminal law - Appeal against sentence - Conviction after trial - Aggravated armed robbery - Breaking and entering - Unlawful use of motor vehicle - Receiving stolen firearm - Escape from legal custody in Western Australia - Multiple armed robbery offences committed in Queensland - Escape from legal custody in Queensland - Applications for prisoner transfer from Queensland to Western Australia - Over 20 years' imprisonment served in Queensland - Alleged implied error - 'Retrospective totality' - Whether the total effective sentence was crushing having regard to events subsequent to imposition - Whether s 41(4)(a) of the Criminal Appeals Act 2004 (WA) empowers the court to interfere with a sentence based on events occurring after the sentence was imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e), s 41(4)(a)
Criminal Code (WA), s 390A, s 391, s 393, s 404, s 414
Sentence Administration Act 2003 (WA), s 8
Sentencing Act 1995 (WA), s 6(3)(b)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Ms N Cavallaro
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	The Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Abbott v The Queen (Unreported, Western Australian Supreme Court, Court of Criminal Appeal, Library No 7814, 1 September 1989)

Colwell v The State of Western Australia [No 2] [2012] WASCA 196

JKL v The State of Western Australia [2012] WASCA 215

LAT v The State of Western Australia [2018] WASCA 215

LWD v The State of Western Australia [2017] WASCA 174

MacCauley v The State of Western Australia [No 2] [2017] WASCA 65

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Abbott (Unreported, Queensland Supreme Court, Court of Appeal, 13 April 1999)

R v Clements (1993) 68 A Crim R 167

R v Friedemann [1998] VSCA 9; [1999] 1 VR 162

R v Pollitt (1986) 20 A Crim R 102

Roffey v The State of Western Australia [2007] WASCA 246

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

Woods v The State of Western Australia [2017] WASCA 179

JUDGMENT OF THE COURT:

1. The appellant was charged and convicted after trial in the Supreme Court of Western Australia of four counts contained in indictment 142 of 1987, being:[1]

   [1] WAB 201 - 203.

Count 1	Receiving a quantity of firearms knowing that they were stolen, contrary to s 414 of the Criminal Code (WA) (the Code)
Count 2	Unlawful use of a motor vehicle, contrary to s 390A of the Code
Count 3	Breaking and entering the Commonwealth Bank of Australia with intent to commit an offence, contrary to s 404 of the Code
Count 4	Armed robbery in circumstances of aggravation, contrary to s 391 and s 393 of the Code.

1. On 30 March 1988, the appellant was sentenced by Smith J, as follows:[2]

   [2] ts 321; WAB 210.

Count 1	1 year's imprisonment
Count 2	1 year's imprisonment
Count 3	3 years' imprisonment
Count 4	10 years' imprisonment

1. His Honour ordered that the sentences for the first three offences be served concurrently with the sentence for the offence of armed robbery in circumstances of aggravation.  Thus, the total effective sentence imposed was 10 years' imprisonment.  The sentencing judge did not set a minimum term.[3]

   [3] WAB 210.

2. Approximately 30 years out of time, on 5 June 2018, the appellant filed a notice of appeal against the sentence imposed by Smith J, including an application for an extension of time.  The application for an extension of time is supported by the affidavit of the appellant's solicitor, Laura Marie Willox, sworn 31 May 2018.  Among the documents annexed to this affidavit was a letter from the Department of Corrective Services to the appellant, dated 7 June 2016, which contained an 'account' of the sentences imposed upon the appellant from 1981.[4]

   [4] WAB 19 - 26 (the letter).

3. The sole ground of appeal upon which the appellant relies reads:[5]

   The total effective sentences imposed are manifestly excessive and crushing having regard to the events subsequent to their imposition and the total length of imprisonment the applicant presently is required to serve.

   The 'events subsequent' are the imposition of lengthy terms of imprisonment in Queensland for serious offences committed by the appellant in that State following upon his escape from legal custody in Western Australia and the refusal of six applications he made for a transfer to Western Australia, pursuant to the Prisoners (Interstate Transfer) Act 1982 (Qld) (Prisoners (Interstate Transfer) Act).[6]

   [5] WAB 170.

   [6] WAB 173, 175 - 176.

4. Although the ground of appeal refers to 'total effective sentences', the appellant's appeal concerns only the total effective sentence imposed by Smith J on 30 March 1988. 

5. On 17 August 2018, an order was made referring the application for an extension of time and the application for leave to appeal to the hearing of the appeal.[7]

   [7] WAB 4.

6. On 2 October 2018, the respondent filed an application to adduce additional evidence in the appeal, being an affidavit affirmed by Lindsay Makinson Fox on 2 October 2018.  This affidavit essentially contains documents relevant to the appellant's offending in Queensland, in particular, the transcripts of the sentencing proceedings on a number of occasions in the District Court in Queensland.[8]  There was no objection to this court receiving Mr Fox's affidavit.[9]  Accordingly, the respondent's application should be granted. 

   [8] WAB 28 - 168.

   [9] Appeal ts 2.

7. On 13 February 2019, the appellant applied to adduce additional evidence in the appeal in the form of an affidavit affirmed by the appellant on 6 February 2019.  This affidavit, in essence, summarises the conditions in which the appellant was held in custody while he was incarcerated in Queensland.  This material is irrelevant to this appeal and leave to adduce it should be refused. 

8. In our opinion, the proposed ground of appeal has no merit, leave to appeal should be refused and the application for an extension of time should be dismissed.  Our reasons for these conclusions are as follows.

Facts with respect to the sentence imposed in Western Australia on 30 March 1988

1. There is no dispute as to the findings of fact made by Smith J in respect of the offences that were the subject of indictment 142 of 1987.  They may be summarised in this way. 

2. The appellant and others made an elaborate plan to rob the Commonwealth Bank branch at Belmont.  There were two stages to that plan.  The first stage involved the cutting of a hole in the roof of the premises in which the bank was situated in order to gain access to the ceiling of the banking chamber and in preparation for the second stage.  The second stage involved the appellant and two others dropping from the ceiling into the bank chamber after the staff had reported for work that morning, and then coercing the staff into operating the safe combinations, giving the appellant and his co‑offenders access to the large sums of money held in the bank vaults.[10]

   [10] ts 325; WAB 206.

3. Both stages of the plan were successfully implemented.  In the early hours of 29 May 1987, a hole was cut in the ceiling of the bank.  Shortly after 8.30 am, the appellant and a co‑offender, David Brian Stabback, dropped from the ceiling of the bank chamber disguised with ski masks, and carrying handguns.  They proceeded to harass and terrify the bank staff into complying with their demands.  The appellant and the co‑offender were given access to the vaults and they ultimately escaped with money in excess of $112,700 in a getaway car being driven by Peter James Lievense.[11]

   [11] ts 325 - 326; WAB 206 - 207.

4. Later, the appellant was apprehended at Perth domestic airport.  Police officers found, in the appellant's luggage, a handgun which had been stolen a week prior to the robbery from a gun shop in Maddington.  The police also found significant sums of cash which were parcelled in a manner similar to that employed by the Commonwealth Bank.[12]

   [12] ts 326; WAB 207.

5. In an interview with the police, the appellant admitted that on the day prior to the robbery he and Mr Lievense drove to a caryard in Victoria Park.  While the appellant waited, the co‑offender took possession of a car which was ultimately used as the getaway vehicle from the robbery.[13]

   [13] ts 326; WAB 207.

6. The learned sentencing judge observed that the actions of the appellant and Mr Stabback had terrified the bank officers.  His Honour also noted that Mr Stabback fired two shots while the appellant and he were in the bank.  While the learned sentencing judge accepted that the shots had been fired accidentally, he adopted the comment made by Olney J, who sentenced Mr Stabback, to the effect that the accidental discharge of the firearm was just as lethal as a deliberate firing.[14]  Smith J noted that Olney J sentenced Mr Stabback to 12 years' imprisonment without parole but, unlike the appellant, Mr Stabback had, at the time of the commission of the offence, a prior conviction for armed robbery and had been convicted of the breaking and entering of the Maddington gun shop.[15]

   [14] ts 327; WAB 208.

   [15] ts 327; WAB 208.

The appellant's personal circumstances as at 30 March 1988

1. The appellant was, as at 30 March 1988, 26 years of age.  Although at that time he had no prior convictions for armed robbery, he had a long criminal record involving many convictions for offences of dishonesty.  At the time he committed the offences the subject of indictment 142 of 1987 he was subject to an arrest warrant issued by the Parole Board, the appellant's release on parole for earlier offending having been suspended and, later, cancelled.[16]

   [16] ts 327 - 328; WAB 208 - 209.

2. Taking into account the sentence imposed on Mr Stabback for parity purposes and invoking the totality principle, his Honour imposed the individual sentences set out earlier in these reasons and imposed a total effective sentence of 10 years' imprisonment.  His Honour did not fix a minimum term.  He ordered that the sentence be imposed cumulatively upon any other sentence that the appellant was then liable to serve.[17]  At the time he was sentenced, the appellant 'owed' the Parole Board 813 days.[18]

   [17] ts 329; WAB 331.

   [18] WAB 21.

The appellant commits offences in Fremantle Prison

1. On the afternoon of 4 January 1988, the appellant and others were involved in a riot at Fremantle Prison.  Later, the appellant was convicted of two counts of unlawfully assaulting a public officer then performing a function of his office and six counts of unlawful deprivation of liberty, each relating to one of the prison officers who had been taken hostage.  The appellant was sentenced at first instance to a total effective sentence of 6 years' imprisonment to be served cumulatively on the sentences imposed by Smith J.  The total effective sentence was reduced by the Court of Criminal Appeal to 4 years' imprisonment.[19]

   [19] See Abbott v The Queen (Unreported, Western Australian Supreme Court, Court of Criminal Appeal, Library No 7814, 1 September 1989), 209.

The appellant escapes from Fremantle Prison

1. On 24 November 1989, the appellant escaped legal custody from Fremantle Prison.[20]  He remained at large for more than five years until 26 March 1995.[21]

   [20] WAB 22.

   [21] He appears to have been apprehended in Queensland on 26 March 1995 - see WAB 50.

The appellant commits offences in Queensland

1. At some point the appellant travelled to Queensland.  There, he committed a number of serious offences for which he received lengthy terms of imprisonment. 

2. On 20 January 1995, the appellant robbed the Elanora branch of the Commonwealth Bank of Australia of $354,000.  He broke into the bank through a fire cupboard before the bank was open and hid in the ceiling.  After members of staff arrived, but before the bank was opened, the appellant dropped through a hole in the ceiling and confronted the staff.  He was armed with a loaded Colt automatic pistol.  He ordered staff to obtain money from the bank's safe and automatic teller machine.  Once the appellant obtained the money, he radioed an accomplice in a getaway vehicle.[22]

   [22] WAB 48.

3. The sentencing judge, Hoath DCJ, described the robbery as well‑planned and professionally executed.  He took into account the substantial amount of money the appellant stole.  He also noted that the appellant was armed with a loaded firearm and that he had committed, in effect, an identical offence in Western Australia.[23]

   [23] WAB 49.

4. In determining the appropriate sentence, Hoath DCJ took into account that the appellant would be returned to Western Australia to serve the sentence from which he had escaped, after he served the sentence his Honour imposed.  As a result, Hoath DCJ remarked that he was obliged to impose a sentence which may, in isolation, appear to fail to reflect the seriousness of the offending.[24]

   [24] WAB 49 - 50.

5. On 7 June 1996, Hoath DCJ sentenced the appellant to 9 years' imprisonment.[25]

   [25] WAB 50.

6. On 2 May 1997, the appellant was also sentenced by Pratt QC DCJ for two offences of armed robbery, the first of which occurred on 16 April 1992 at the National Australia Bank at Springwood, and the second on 24 December 1993 at the Commonwealth Bank in Pacific Fair on the Gold Coast.[26]  As described by Pratt QC DCJ, the offences were expertly planned and carefully executed.  On each occasion, entry was gained through a rear door and the appellant was armed with a pistol.  His Honour described the appellant as using 'a combination of intricate planning and terror and manipulation … to obtain vast sums of money'.  The appellant obtained $203,716 from the National Australia Bank and $781,252 from the Commonwealth Bank.[27]

   [26] WAB 55 - 58.

   [27] WAB 99.

7. His Honour took into account that the appellant was serving the sentence imposed upon him by Hoath DCJ and the sentence he would have to serve when he was ultimately returned to Western Australia.[28]  Acknowledging that the totality principle must apply, and taking into account the appellant's pleas of guilty, Pratt QC DCJ sentenced the appellant to 9 years' imprisonment for the robbery on the National Australia Bank and 10 years' imprisonment for the robbery on the Commonwealth Bank.  He ordered that those sentences be served concurrently with each other and concurrently with the sentence of 9 years imposed by Hoath DCJ.[29]

   [28] WAB 100.

   [29] WAB 101 - 102.

The appellant escapes legal custody for a second time

1. On 5 November 1997, while serving the sentences imposed by Hoath DCJ and Pratt QC DCJ, the appellant and others escaped legal custody from the Sir David Longland Prison at Wacol.[30]  The appellant and others cut through the bars of their cell windows and the perimeter fences.  In the course of the escape, shots were fired at prison officers and at a manned perimeter security vehicle.  The appellant was at large for 182 days and was recaptured in Darwin on 2 May 1998 and extradited to Queensland.[31]

   [30] WAB 111 - 112.

   [31] WAB 139.

2. The appellant was charged with five offences arising from this escape, being one count of escaping legal custody, and four counts of assault with intent to prevent arrest.  The appellant pleaded guilty to these charges, and was sentenced by Trafford‑Walker SJDC to a total effective sentence of 6 years' imprisonment cumulative upon the sentences that the appellant was then serving.  In her sentencing remarks, her Honour said that she had regard to the fact that the appellant had to eventually serve a lengthy term of imprisonment in Western Australia.  Her Honour also considered that the appellant had to serve a lengthy period of imprisonment in Queensland.[32]  An appeal against Trafford-Walker SJDC's sentence was dismissed.[33]

   [32] WAB 136.

   [33] WAB 142; R v Abbott (Unreported, Queensland Supreme Court, Court of Appeal, 13 April 1999).

3. The appellant was convicted by a jury of one count of unlawful use of a motor vehicle in circumstances of aggravation, and one count of armed robbery in company.  These offences were committed along with a co‑offender.[34]  On 29 June 1999, Boulton DCJ sentenced the appellant to 6 years' imprisonment on count 1 and 7 years' imprisonment on count 2.  His Honour ordered that the sentences be served concurrently with each other.  Thus, the total effective sentence was 7 years' imprisonment.  Boulton DCJ ordered that the total effective sentence be served cumulatively upon the sentences the appellant was then serving.  In imposing these sentences his Honour took into account the sentences the appellant was obliged to serve in Western Australia and the other sentences which had been imposed in Queensland.  His Honour also took into account that the appellant was serving his Queensland sentences in maximum security 'in a situation of isolation'.[35]  An appeal against Boulton DCJ's sentence was dismissed.[36]

   [34] WAB 163.

   [35] WAB 165 - 167.

   [36] R v Abbott [1999] QCA 425.

4. On 22 February 2001, the appellant was sentenced in the Caboolture Magistrates Court for an offence of wilfully and unlawfully damaging a security communication system.  The circumstances in which this offence was committed were not provided to this court.[37]  What is known is that the appellant was sentenced to 6 months' imprisonment concurrent with all of the sentences the appellant was then serving.[38]

Applications pursuant to the Prisoners (Interstate Transfer) Act)

[37] WAB 30.

[38] WAB 174.

1. While in custody in Queensland, the appellant made six applications pursuant to the Prisoners (Interstate Transfer) Act to be transferred from Queensland to Western Australia.  None of these applications were successful.  For such an application to succeed, the Attorney General (or relevant minister) of each involved State must consent to the transfer.  In each of the appellant's applications, either the Attorney General for Western Australia, or the relevant minister, or their Queensland counterpart refused to consent to the application.  Had one of his applications been granted, and the appellant transferred from Queensland to Western Australia, he would have served the sentences that were imposed upon him in Queensland in this State.  The Queensland sentences would have been served concurrently with the unserved portion of the sentences that the appellant was subject to in this State.[39]

   [39] Appeal ts 20 - 21.

The appellant is granted parole and extradited to Western Australia

1. On 12 April 2016, the appellant was released on parole in Queensland.  On that day, upon his release, he was arrested.[40]  By this time, he had spent more than 20 years in custody in Queensland.  On 4 May 2016, he was extradited to Western Australia.[41] He has since been returned to custody. According to the letter referred to in [4] of these reasons, the content of which was not challenged by the State, by operation of s 8 of the Sentence Administration Act 2003 (WA), the appellant is required to serve 1,530 days in addition to the term or terms the appellant had yet to serve at the time of his escape from Western Australia. As things presently stand, all in all, the appellant's earliest eligibility date for release on parole is 23 October 2026 and his maximum sentence will expire on 12 January 2033.[42]  If he serves the maximum sentence, he will be 70 years of age.[43]

   [40] WAB 22.

   [41] WAB 10.

   [42] WAB 22 - 23; Appeal ts 10, 17, 19, 23 - 25.

   [43] The appellant was born on 8 May 1962.

The appellant's submissions

1. The sole ground of appeal is set out at [5] above.

2. Senior counsel for the appellant accepted that Smith J did not err in respect of any of the individual sentences or the total effective sentence he imposed.[44]  It was expressly conceded by the appellant in his written submissions that, 'the individual sentences and [the structuring] of those sentences were within the sound exercise of the relevant sentencing [discretion]'.[45]  It was not alleged that, at the time, the total effective sentence imposed by Smith J breached the totality principle. 

   [44] Appeal ts 8.

   [45] Appellant's submissions, pars 53, 66; WAB 178 - 179.

3. However, the appellant submits that the sentence imposed by Smith J has become 'unfair' and this court should intervene to reduce the total effective sentence imposed by Smith J because of the more than 20 years' imprisonment served in Queensland for the offences he committed after he had escaped legal custody in Western Australia.  Further, while he was a serving prisoner in Queensland, all of his applications for an interstate transfer were refused.  Consequently, he lost the opportunity to return to Western Australia and serve the sentences imposed in Queensland concurrently with the sentences he had to serve in Western Australia.[46] 

   [46] WAB 178 - 180.

4. Senior counsel submitted that this court should apply what he called 'retrospective totality' to deal with what he said were the 'exceptional' circumstances of this case.  By 'retrospective totality', senior counsel meant that, although the total effective sentence imposed by Smith J at first instance was a proper exercising of the sentencing discretion, it became unfair and unjust in the light of the sentences the appellant was required to serve later, combined with the refusal of all of his applications for an interstate transfer.  Senior counsel argued that the present case was out of the ordinary and that this court should intervene as an exercise of mercy.[47] 

   [47] Appeal ts 3, 7 - 8, 18.

5. The appellant submitted that if he is required to serve the remainder of his Western Australian sentences in addition to the sentences he served in Queensland, the total sentence would be disproportionate to the seriousness of his criminal conduct as a whole and would be crushing because it would instil a sense of hopelessness in the appellant before his release.[48]

   [48] Appellant's submissions, pars 61 - 65; WAB 179.

6. The appellant submitted that the statutory power of this court to interfere with the sentence imposed by Smith J on the basis of events which occurred after that sentence was imposed derives from s 41(4)(a) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act),[49] which reads as follows:

   41.     Sentencing or re‑sentencing on appeal

   …

   (4)The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

   (a)may take into account any matter, including any material change to the person’s circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; …

   [49] Appellant's submissions, pars 78 - 81; WAB 181.

7. Senior counsel argued that the words 'may require it to impose a sentence, or to vary a sentence imposed' allow this court to take into account, in deciding whether an error or miscarriage has been demonstrated, events which have occurred after the sentence in question was imposed. Senior counsel contended that there was no decision of this court with respect to the construction of s 41(4)(a) of the Criminal Appeals Act which precluded the court taking into account events which occurred after the imposition of the sentence in question.[50]

   [50] Appeal ts 6 - 7, 13 - 17.

Disposition

1. The appellant's concession that the total effective sentence imposed by Smith J did not offend the totality principle, at the time that it was imposed, is undoubtedly correct and should be accepted.  All of the offences committed by the appellant were serious.  However, the offence of armed robbery was a particularly serious example of its type.  As the primary judge observed, it involved elaborate planning.  The appellant and his co‑offenders emerged from the ceiling into the bank chamber, taking the bank staff by surprise.  A firearm was discharged and the bank staff were terrified.  A large sum of money was obtained.  The appellant committed the offence while subject to a return to prison warrant, having breached his parole. 

2. There were no mitigating factors of any substance.  The appellant, at 26 years of age, could no longer claim youth as a matter of mitigation.  While the appellant cannot be, and was not, punished for pleading not guilty, the mitigation that would have been afforded by pleas of guilty was not available to him.  At the time he was sentenced by Smith J the appellant was not a person of good character.  Having regard to the maximum penalty for armed robbery - life imprisonment - the individual sentence that was imposed upon the appellant was an appropriate exercise of the sentencing discretion.  Of course, the sentences Smith J imposed for counts 1 ‑ 3 were all ordered to be served concurrently with the sentence for the armed robbery offence.  In no way could it be said that the imposition by Smith J of a total effective sentence of 10 years' imprisonment infringed either limb of the totality principle.

3. The sole ground of appeal relied upon by the appellant is without merit.  It faces two insurmountable obstacles. 

4. The first of these obstacles is that it relies on events which occurred after the appellant was sentenced by Smith J and which do not relate to facts in existence at the time of sentencing.  The following reasons for dismissing a ground of appeal in LAT v State of Western Australia[51], suffering from the same flaw, seem to us to apply with equal force to the present appeal:

   The sole ground of appeal is fundamentally flawed, as it relies on events occurring after the completion of the sentencing process.  An appeal to this court is not an opportunity to revisit the question of the appropriate sentence in light of all material now available.  The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice below in the sentencing.  Only if there was error or a miscarriage of justice does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed.  Consequently, with limited exceptions referred to below, it is only at the second stage - once error or a miscarriage of justice is demonstrated - that this court takes account of post-sentencing events in exercising afresh the sentencing discretion and deciding whether a different sentence should have been imposed.  Because there is no ground of appeal asserting error or a miscarriage of justice in the sentence imposed as at the time it was imposed, no occasion arises to receive information concerning events post-sentencing.

   [51] LAT v State of Western Australia [2018] WASCA 215 [39].

5. In Colwell v The State of Western Australia [No 2],[52] this court held that, as a general rule, an appeal court decides an appeal on the evidence and material before the court below: see s 39(1) of the Criminal Appeals Act.[53] While this court has a broad discretion to admit other evidence on appeal pursuant to s 40(1)(e) of the Criminal Appeals Act, in the context of an appeal against sentence, ordinarily at least, a distinction is drawn between matters which existed at the time of sentencing, but were not known, and matters which have come into existence since the time of sentence.  An appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed and which are unrelated to facts in existence at the time of sentencing.  The reasons for this are grounded in the role of an appellate court and were explained by Newnes JA (with whom Pullin & Mazza JJA agreed):[54]

   It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed.  Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court:  R v Munday [1981] 2 NSWLR 177, 178; R v Vachalec [1981] 1 NSWLR 351, 353 ‑ 354; R v Babic [1998] 2 VR 79, 80 ‑ 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] ‑ [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 ‑ 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].

   Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed.  However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time:  R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] ‑ [69].

   [52] Colwell v The State of Western Australia [No 2] [2012] WASCA 196.

   [53] Colwell [28].

   [54] Colwell [29] ‑ [30].

6. This passage has been adopted and applied in a number of decisions of this court, including JKL v The State of Western Australia;[55] MacCauley v The State of Western Australia [No 2];[56] LWD v The State of Western Australia;[57] and, most recently, in LAT v The State of Western Australia.[58]

   [55] JKL v The State of Western Australia [2012] WASCA 215 [173].

   [56] MacCauley v The State of Western Australia [No 2] [2017] WASCA 65 [46].

   [57] LWD v The State of Western Australia [2017] WASCA 174 [84].

   [58] LAT v The State of Western Australia [2018] WASCA 215 [39] ‑ [43].

7. Senior counsel for the appellant expressly declined to challenge the correctness of Colwell v The State of Western Australia [No 2].  Instead, senior counsel sought to, in effect, carve out an exception to the statements made in Colwell v The State of Western Australia [No 2], on the basis that this court should exercise mercy in favour of the appellant, having regard to the 'crushing' length of time the appellant will be required to spend in prison if this court does not intervene.  In our opinion, this court cannot intervene in the exercise of mercy on the basis of subsequent events.  To do so would be to exceed its function as an appellate court.  As explained in Colwell v The State of Western Australia [No 2], where an appropriate sentence at first instance has been passed, it is a matter for executive government, not an appellate court, to decide whether, in the exercise of mercy on the basis of subsequent events, an offender should be released.

8. Even if this court could intervene as an exercise in mercy, for reasons which we will explain, it should not do so in this case. 

9. As to the application of s 41(4) of the Criminal Appeals Act, the limits upon, or preconditions to, the exercise of the power conferred by s 41(4)(a) do not require definition in this case, particularly as the appellant's submissions on this point were far from comprehensive.[59]

   [59] See The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 [27] (McLure JA); The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [41] (McLure P) [220] ‑ [224] (Buss JA); LWD v The State of Western Australia [82] and Woods v The State of Western Australia [2017] WASCA 179 [66].

10. In Woods v The State of Western Australia, Buss P (with whom Beech JA & Hall J relevantly agreed) said:[60]

    In my opinion:

    (a)s 41(4)(a) does not permit an appeal court, when the appeal court is in the process of deciding whether to allow the appeal or not, to take into account 'any matter' that has occurred between when the lower court dealt with the person and when the appeal is heard, unless 'the matter' is 'relevant to' the sentence that was imposed by the lower court; and

    (b)s 41(4)(a) does not permit an appeal court, when the appeal court is imposing a sentence, or varying a sentence imposed, on a person for an offence, to take into account 'any matter' that has occurred between when the lower court dealt with the person and when the appeal is heard, unless 'the matter' is 'relevant to' the imposition by the appeal court of the sentence or the variation by the appeal court of the sentence imposed by the lower court.

    [60] Woods v The State of Western Australia [66].

11. In the present case, 'the matter' of the sentences imposed upon the appellant in Queensland and the refusal of his applications for an interstate transfer were not relevant to the sentence that was imposed by Smith J because, at the time Smith J imposed sentence, those matters had not occurred. 

12. Further, for closely related reasons, there is no such concept as 'retrospective totality'.  Senior counsel for the appellant accepted that there was no case decided by this court or any other court which acknowledged the existence of such a concept. 

13. The totality principle is a common law principle of sentencing recognised in this State by s 6(3)(b) of the Sentencing Act1995 (WA), which provides that a sentence can be reduced because of 'any rule of law as to the totality of its sentences'. Its operation and rationale were explained by McLure JA in Roffey v The State of Western Australia[61] in the following well‑established and frequently quoted statement, as follows:[62]

    The appellant relies on the totality principle which comprises two limbs.  The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Woods v The Queen (1994) 14 WAR 341.

    The second limb is that the court should not impose a 'crushing' sentence.  The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release:  Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

    The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences:  R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

    [61] Roffey v The State of Western Australia [2007] WASCA 246.

    [62] Roffey [24] ‑ [26].

14. It hardly needs stating that a sentencer considering the operation of the totality principle does so in the context of offences which have already been committed or sentences which have already been imposed.  Thus, in the present case, each of the District Court judges who sentenced the appellant in Queensland took into account the unserved portion of the sentences which had been imposed upon the appellant in Western Australia.  Senior counsel, in oral argument, submitted that the information given to the sentencing judges in Queensland about the length of the unserved portion of the Western Australian sentences was inaccurate.  Whether that is true was not a matter relevant to the application of the totality principle before Smith J.  That is a matter which may have been the subject of appeal in Queensland, but it is not a matter this court can take into account.  It would, of course, be a strange result to allow the appellant to mitigate the sentences imposed upon him in Queensland because he will be required to serve out his Western Australian sentences and then, when he returns to Western Australia for that purpose, to have the sentences originally imposed in this State reduced to take into account the Queensland sentences.  In effect, the appellant would be seeking double credit for totality. 

15. The appellant sought to support his ground of appeal by reference to R v Friedemann;[63] R v Clements;[64] R v Pollitt[65] and the decision of the High Court in Mill v The Queen.[66]  It is unnecessary to analyse these cases in detail.  It is sufficient to say that each case concerned an appeal against sentence by an offender who was being sentenced in one State, and who had served or would be required to serve a sentence that had previously been imposed in another State.  These cases provide no support for any concept of 'retrospective totality', which is not a concept known to the law.

    [63] R v Friedemann [1998] VSCA 9; [1999] 1 VR 162.

    [64] R v Clements (1993) 68 A Crim R 167.

    [65] R v Pollitt (1986) 20 A Crim R 102.

    [66] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

16. For the reasons we have already explained, this court is not at liberty to intervene in this case on the basis of mercy.  However, the second fatal obstacle to the ground of appeal is that, for the reasons that follow, if the court was empowered to intervene on this basis, we would not do so.

17. The appellant consciously and deliberately chose to engage in the criminal conduct which led to the sentences that were imposed upon him in Queensland.  When he escaped legal custody in Western Australia, he must have known that, if he was apprehended, he would be required to serve the unexpired portion of his sentence.  While he was an escapee, and until the time of his arrest in Queensland, he committed a number of very serious armed robberies.  Each of them involved a modus operandi not dissimilar from the armed robbery offence he committed in Western Australia. 

18. When he was sentenced by Hoath DCJ and Pratt QC DCJ, each of them took into account, as a mitigating factor, that once the appellant had served his sentences in Queensland he would be returned to Western Australia to serve out the balance of the sentences imposed in this State.  The appellant then, again, consciously and deliberately chose to escape legal custody in Queensland.  Yet again, while an escapee, he committed serious offences. 

19. Trafford‑Walker SJDC and Boulton DCJ took into account the sentences already imposed in Queensland and that the appellant would be required to return to Western Australia to serve out the sentences imposed in this State.  Each time the appellant offended, he must have known that if he was caught he would receive further punishment in Queensland and that when he was discharged from his Queensland sentences he would have to return to Western Australia to serve out the sentences imposed here.

20. Senior counsel for the appellant asserted that the decisions to refuse an interstate transfer, so that the appellant would be returned to Western Australia where he would serve the sentences imposed in Queensland and Western Australia concurrently, were unjust, and this was a relevant factor the court should take into account in concluding that it should intervene in this case as an act of mercy.  There is no material before this court which could justify the conclusion that the refusal of the relevant authorities to grant the appellant an interstate transfer was unjust.  More fundamentally, such a decision is one for the Executive and not this court. 

21. It is true that there is a prospect that the appellant will not be released until January 2033.  By that time, he will be 70 or 71 years of age.  He will have served, by our calculations, close to 40 years in gaol for the crimes he committed in Western Australia and Queensland.  A proportion of that time has been spent in isolation, due to his propensity to escape from prison.  It is a tragedy for the appellant that he has, by his deliberate criminal conduct, ruined his life.  Nevertheless, the appellant must take responsibility for the serious crimes he has committed.  It is significant that the appellant twice escaped legal custody and committed serious violent offences.  Generally speaking, offences of escaping legal custody and any offences which occur while an escapee is at large ordinarily warrant sentences which reflect these facts and demand particular attention to personal and general deterrence and public protection. 

1. We would summarise the position as follows.  The avenue that remains open to the appellant is to persuade Executive Government to exercise the prerogative of mercy.  It is not for this court to undertake that exercise.  There is no lawful basis for this court to intervene.  The sentence imposed by Smith J was, as the appellant concedes, entirely appropriate.  The court cannot re‑exercise the sentencing discretion because of the events which subsequently occurred in Queensland.  The court has no power to intervene on the basis of mercy.  Even if it had such a power, based on the material presently before the court, we would not exercise it in favour of the appellant.

2. In our opinion, the ground of appeal relied upon by the appellant has no reasonable prospect of succeeding.  It is devoid of merit.  In these circumstances, there is no justification to grant an extension of time to appeal.

3. The orders we would make are as follows:

   1.The appellant's application to adduce additional evidence dated 13 February 2019 is refused.

   2.The respondent's application to adduce additional evidence dated 2 October 2018 is granted.

   3.Leave to appeal is refused.

   4.The application for an extension of time is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DT
Associate to the Honourable Justice Mazza

28 JUNE 2019