Adams v The State of Western Australia
[2014] WASCA 191
•28 OCTOBER 2014
ADAMS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 191
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 191 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:167/2013 | 15 MAY 2014 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 28/10/14 | |
| 49 | Judgment Part: | 1 of 1 | |
| Result: | Leave to adduce additional evidence granted Leave to appeal on ground 3 granted Appeal allowed Sentence imposed on count 1 in the s 32 notice varied only to the extent that the appellant be released in relation to that sentence on recognizance in the sum of $10,000 after serving 7 months | ||
| A | |||
| PDF Version |
| Parties: | STEPHEN MICHAEL ADAMS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Various offences Appellant former police officer Whether sentencing judge failed to consider restrictive conditions of imprisonment in mitigation Whether sentence infringed the totality principle Whether a notice pursuant to s 32 of the Sentencing Act 1995 (WA) may contain a Commonwealth offence Whether sentencing judge failed to fix a recognizance release order |
Legislation: | Commonwealth Constitution, s 77, s 79 Crimes Act 1914 (Cth), s 4G, s 4J, s 19AC, s 19AH Criminal Appeals Act 2004 (WA), s 31(3), s 31(4), s 39, s 40(1)(e) Criminal Code (Cth), s 131.1 Criminal Code (WA), s 5, s 326, s 333, s 378, s 388, s 392, s 392(c), s 409(1)(c), s 428(1), s 491(1), s 552 Criminal Procedure Act 2004 (WA), s 83 Firearms Act 1973 (WA), s 19(1) Judiciary Act 1903 (Cth), s 39, s 39A, s 68, s 79 Road Traffic Act 1974 (WA), s 97(2)(d) Sentencing Act 1995 (WA), s 4(1), s 9AA, s 31, s 32, s 33, s 39, s 46 Weapons Act 1999 (WA), s 6(1)(b), s 7(1) |
Case References: | Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 Commonwealth Director of Public Prosecutions v Wallace [2011] WASC 286; (2011) 43 WAR 61 Commonwealth v District Court of the Metropolitan District [1954] HCA 13; (1954) 90 CLR 13 Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65 Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481 Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 R v Gee [2003] HCA 12; (2003) 212 CLR 230 R v LK [2010] HCA 17; (2010) 241 CLR 177 R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 R v Murphy [1985] HCA 50; (1985) 158 CLR 596 R v Murray and Cormie [1916] HCA 58; (1916) 22 CLR 437 Rafferty v The Queen [2002] WASCA 312; (2002) 135 A Crim R 282 Roffey v The State of Western Australia [2007] WASCA 246 Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119 Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119 The State of Western Australia v Adams [2013] WASCSR 152 Wheeler v The Queen [No 2] [2010] WASCA 105 Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ADAMS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 191 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
Citation : [2013] WASCSR 152
File No : INS 68 of 2013
Catchwords:
Criminal law - Appeal against sentence - Various offences - Appellant former police officer - Whether sentencing judge failed to consider restrictive conditions of imprisonment in mitigation - Whether sentence infringed the totality principle - Whether a notice pursuant to s 32 of the Sentencing Act 1995 (WA) may contain a Commonwealth offence - Whether sentencing judge failed to fix a recognizance release order
Legislation:
Commonwealth Constitution, s 77, s 79
Crimes Act 1914 (Cth), s 4G, s 4J, s 19AC, s 19AH
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4), s 39, s 40(1)(e)
Criminal Code (Cth), s 131.1
Criminal Code (WA), s 5, s 326, s 333, s 378, s 388, s 392, s 392(c), s 409(1)(c), s 428(1), s 491(1), s 552
Criminal Procedure Act 2004 (WA), s 83
Firearms Act 1973 (WA), s 19(1)
Judiciary Act 1903 (Cth), s 39, s 39A, s 68, s 79
Road Traffic Act 1974 (WA), s 97(2)(d)
Sentencing Act 1995 (WA), s 4(1), s 9AA, s 31, s 32, s 33, s 39, s 46
Weapons Act 1999 (WA), s 6(1)(b), s 7(1)
Result:
Leave to adduce additional evidence granted
Leave to appeal on ground 3 granted
Appeal allowed
Sentence imposed on count 1 in the s 32 notice varied only to the extent that the appellant be released in relation to that sentence on recognizance in the sum of $10,000 after serving 7 months
Category: A
Representation:
Counsel:
Appellant : Mr S B Watters & Mr M G Pemberton
Respondent : Mr J A Scholz
Solicitors:
Appellant : Lynn & Brown Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
Commonwealth Director of Public Prosecutions v Wallace [2011] WASC 286; (2011) 43 WAR 61
Commonwealth v District Court of the Metropolitan District [1954] HCA 13; (1954) 90 CLR 13
Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65
Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69
Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481
Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447
Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174
R v Gee [2003] HCA 12; (2003) 212 CLR 230
R v LK [2010] HCA 17; (2010) 241 CLR 177
R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338
R v Murphy [1985] HCA 50; (1985) 158 CLR 596
R v Murray and Cormie [1916] HCA 58; (1916) 22 CLR 437
Rafferty v The Queen [2002] WASCA 312; (2002) 135 A Crim R 282
Roffey v The State of Western Australia [2007] WASCA 246
Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119
Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119
The State of Western Australia v Adams [2013] WASCSR 152
Wheeler v The Queen [No 2] [2010] WASCA 105
Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551
Wilson v The State of Western Australia [2010] WASCA 82
1 BUSS JA: This is an appeal against sentence.
2 On 1 August 2013, the appellant was convicted, on his pleas of guilty in the Supreme Court, of 19 counts in an indictment dated 29 July 2013 and 12 charges listed in a notice dated 29 July 2013 (the s 32 notice) under s 32 of the Sentencing Act 1995 (WA).
3 On 7 August 2013, Simmonds J imposed a total effective sentence of 10 years' imprisonment. His Honour made a parole eligibility order and backdated the sentence to 24 December 2012. His Honour also imposed a fine of $300 for one of the offences.
The facts and circumstances of the offending, the primary judge's sentencing remarks, the individual sentences, the appellant's personal circumstances and antecedents and the submissions of the parties
4 A detailed account of the facts and circumstances of the offending, the primary judge's sentencing remarks, the individual sentences, the appellant's personal circumstances and antecedents and the submissions of the parties are set out in the reasons of Mazza JA. I will not repeat them except to the extent necessary to explain my reasons.
The grounds of appeal
5 Ultimately, the appellant relied on four grounds of appeal. At the hearing of the appeal his counsel abandoned grounds 1 and 2. The remaining grounds read:
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Ground 3
6 I agree with Mazza JA, for the reasons he gives, that ground 3 has been made out. Leave to appeal should be granted on this ground.
Ground 4
7 The appellant's criminality included the commission of fraud, armed robbery and aggravated sexual assault offences. The individual sentences imposed by the primary judge are not challenged. They were well within the range open to his Honour on a proper exercise of the sentencing discretion.
8 It is very difficult, for the purposes of comparison in the context of the first limb of the totality principle, to identify any relevant total effective sentences imposed in previous cases. The nature, extent and diversity of the appellant's overall offending, by a person with his antecedents, is very unusual. No previous case is truly comparable.
9 However, in my opinion, after taking into account the maximum penalties for the offences, the circumstances of the offending (including the vulnerability of the victims) viewed as a whole, the seriousness of the appellant's overall criminal conduct, the appellant's personal circumstances and antecedents, and all other relevant sentencing factors including the pleas of guilty and other matters of mitigation, the total effective sentence of 10 years' imprisonment was well within the range open to the primary judge on a proper exercise of the sentencing discretion. The appellant has not established that the total effective sentence does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors. I am satisfied that the first limb of the totality principle was not infringed. Sentencing error should not be inferred from the sentencing outcome.
10 Ground 4 fails.
Ground 5
11 The appellant was convicted of one federal offence. This offence was listed in the s 32 notice. The charge alleged that between 27 May 2002 and 17 August 2006, in Canberra, the appellant dishonestly appropriated items comprising 'a Motorola Astro Australian Federal Police (AFP) radio, AFP ballistic vest and AFP Mk-9 pepperfoam OC spray', the property of the AFP, a Commonwealth entity, contrary to s 131.1 of the Criminal Code1995 (Cth) (the Commonwealth Code).
12 Section 131.1 of the Commonwealth Code provides, relevantly:
(1) A person is guilty of an offence if:
(a) the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft.
13 The primary judge sentenced the appellant to 16 months' imprisonment for this offence. His Honour ordered that 7 months of the sentence be served before the commencement of any of the sentences of imprisonment for the State offences. The effect of this order was that 7 months of the sentence for the federal offence was to be served cumulatively upon the other sentences of imprisonment.
14 Division 6 of pt 3 of the Sentencing Act is headed 'Other pending charges' and comprises s 31, s 32 and s 33. Those provisions read:
31. Term used: pending charge
In this Division -
pending charge means a charge, in a court of summary jurisdiction of an offence (whether indictable or simple) for which no sentence has been imposed.
32. Pending charges, offender may request court to deal with
(1) An offender who is to be sentenced by a superior court for an offence (in this Division referred to as the original offence) may request the court to also deal with any pending charges against him or her.
(2) On such a request being made, a list of pending charges against the offender is to be prepared and served in accordance with rules of court.
(3) The list must not include any indictable offence that the superior court would not have jurisdiction to deal with, even with the consent or at the election of the offender or the prosecutor.
(4) For the purposes of this section a superior court is to be taken to have jurisdiction to deal with simple offences.
33. Pending charges, court may deal with
(1) When a list of pending charges has been prepared and served, the superior court must ask the offender -
(a) to plead to any of the pending charges listed which the offender has not previously been convicted of; and
(b) to say if he or she wants the superior court to also pass sentence for each of those pending charges that he or she is convicted of.
(2) If the State consents and the superior court considers that it is just to do so, it may, in addition to sentencing the offender for the original offence, also sentence the offender for each of the pending charges the offender is convicted of and wants dealt with.
(3) A sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment.
(4) A pending charge that was not dealt with by the superior court may be dealt with by the court before which it was pending.
(5) If an offender pleaded guilty before the superior court to a pending charge but it was not dealt with by that court, the plea is not admissible in any proceedings for that charge.
16 So, if an offender is to be sentenced by a superior court for an offence (the original offence), and there is a charge (whether indictable or simple) against the offender that is pending in a court of summary jurisdiction, the offender may request the superior court also to deal with the pending charge. Further, if:
(a) the offender makes such a request;
(b) the offender pleads guilty to the pending charge in the superior court, and informs the superior court that he or she wants the superior court also to pass sentence for the pending charge; and
(c) the State consents and the superior court considers that it is just to do so,
the superior court may, in addition to sentencing the offender for the original offence, also sentence the offender for the pending charge.
17 In the present case, counsel for the appellant asserted that offences contrary to the Commonwealth Code 'cannot be dealt with by way of a s 32 notice'. His brief submissions in support of that proposition were of no assistance. Counsel did not refer to the Judiciary Act 1903 (Cth) or any other Commonwealth legislation apart from s 133 of the Commonwealth Code. He did not cite any authorities.
18 By s 77(iii) of the Commonwealth Constitution, the Commonwealth Parliament may make laws with respect to investing any court of a State with federal jurisdiction.
19 Chapter III of the Commonwealth Constitution, while enabling the Commonwealth Parliament to utilise the judicial services of State courts, unequivocally recognises that they remain 'State courts'. See R v Murray and Cormie [1916] HCA 58; (1916) 22 CLR 437, 452 (Isaacs J); Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481, 495 (Knox CJ, Rich & Dixon JJ).
20 The general powers embodied in s 77 and s 79 of the Commonwealth Constitution do not authorise the Commonwealth Parliament to enact legislation dealing with the constitution or organisation of State courts. If the Commonwealth Parliament confers part of the judicial power of the Commonwealth upon State courts, that federal jurisdiction is vested in the State courts as they are constituted and organised under State law. The Commonwealth takes State courts as it finds them. See Le Mesurier (495 - 496); Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69, 88 (Menzies J), 109 (Gibbs J); Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49, 64 (Mason J), 66 (Murphy J); Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 92 (Mason CJ & Deane J), 109 (Brennan J), 117 (Dawson J), 138 (Toohey J), 143 (Gaudron J), 158 (McHugh J).
21 Section 39 and s 68 of the Judiciary Act confer federal jurisdiction upon State courts. See also s 39A. Section 39 and s 68 are ambulatory in character. As to s 39, see Commonwealth v District Court of the Metropolitan District [1954] HCA 13; (1954) 90 CLR 13, 22 (Dixon CJ, Kitto & Taylor JJ). As to s 68, see R v Gee [2003] HCA 12; (2003) 212 CLR 230 [6] - [7] (Gleeson CJ), [24] (McHugh & Gummow JJ). See also R v LK [2010] HCA 17; (2010) 241 CLR 177 [13] (French CJ).
22 Section 68(1) and s 68(2) of the Judiciary Act provide:
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
24 The administration of federal criminal law is organised on a State by State basis. Each State administers federal criminal law upon the same footing as State criminal law. See Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551, 560 (Dixon J); R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338, 345 (Mason J); R v Murphy [1985] HCA 50; (1985) 158 CLR 596, 617 (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ); Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455, 467 (Mason CJ, Dawson & McHugh JJ).
25 State laws concerning criminal procedure do not apply, of their own force, in the exercise by a State court of federal jurisdiction with respect to the prosecution of federal offences. Rather, the State laws are 'picked up' and applied by s 68 of the Judiciary Act as federal laws. See Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 [4] (Gleeson CJ); LK [25] (French CJ). See also, in the context of s 79 of the Judiciary Act, Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 [80] (Gleeson CJ & Gummow J); Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119 [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).
26 When s 68 of the Judiciary Act 'picks up' and applies a State law as a federal law, the State law applies with its meaning unchanged, subject to the qualification that the State law is applied upon the hypothesis that it operates as a federal law. See John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65, 88 (Gibbs J), 95 (Mason J); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [134] - [137] (McHugh J).
27 In Solomons, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ noted that s 68 of the Judiciary Act distinguishes between jurisdiction, on the one hand, and powers and procedures, on the other [19]. By s 68(1), State laws with respect to, relevantly, procedure are to apply 'so far as they are applicable' [19]. By contrast, s 68(2) is concerned with 'the ambit of the jurisdiction rather than the content of the powers to be exercised under it' [19].
28 However, in Putland Gleeson CJ said there is no justification for distinguishing between the procedures referred to in s 68(1) of the Judiciary Act, on the one hand, and powers, on the other [6]. His Honour said that par (a) to par (d) of s 68(1) refer to 'procedures of various kinds which typically involve or create powers' [6].
29 By virtue of the express qualification 'so far as they are applicable' in s 68(1) of the Judiciary Act, the State laws, to which s 68(1) refers, apply except as otherwise provided from time to time by the laws of the Commonwealth. See Putland [7] (Gleeson CJ), [41] (Gummow & Heydon JJ), [121] (Callinan J); Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [11] (French CJ, Gummow, Hayne, Kiefel & Bell JJ). Accordingly, a State law, to which s 68(1) refers, will not be 'picked up' and applied by s 68 if a Commonwealth law expressly or impliedly makes contrary provision or if there is a Commonwealth legislative scheme dealing with the subject matter of the State law which is 'complete upon its face' and has 'left no room' for the operation of the State law. See Gee [62] (McHugh & Gummow JJ); Putland [7] (Gleeson CJ); Bui [25] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
30 The expression 'the summary conviction' in s 68(2)(a), and the expression 'the trial and conviction on indictment' in s 68(2)(c), of the Judiciary Act must be read in the context of the primary meaning of the word 'conviction'. This word refers to the judicial determination of a criminal proceeding by a judgment involving two matters, namely a finding of guilt or an acceptance of a plea of guilty followed, in each case, by sentence. See Williams [No 2] (560) (Dixon J); Putland [4] (Gleeson CJ), [32] (Gummow & Heydon JJ), [121] (Callinan J).
31 In Gee, after referring to Williams [No 2] and noting that the general policy disclosed by s 68 is to assimilate criminal procedure, including remedies by way of appeal, in State and federal offences, Gleeson CJ observed:
That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time [7]. (emphasis added)
32 In Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447, the High Court held, by a majority, that s 68(2) of the Judiciary Act operates on s 5D of the Criminal Appeal Act 1912 (NSW) so as to enable the Attorney-General of the Commonwealth to appeal to the Court of Criminal Appeal of New South Wales against a sentence pronounced by the Supreme Court, or another court of the State, upon the conviction of a person charged with a federal offence. See, in particular, the reasons of Gibbs J (468 - 469). See also Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119, where the High Court approved, by a majority, the decision in Peel.
33 In Putland, the High Court considered the application of s 52(1) of the Sentencing Act (NT) to the sentencing of offenders convicted of federal offences. Section 52(1) empowered a court, where an offender was found guilty of two or more offences joined in the same information, complaint or indictment, to impose one term of imprisonment in respect of both or all of those offences, but provided that the term of imprisonment should not exceed the maximum term that could be imposed if a separate term were imposed in respect of each offence. The appellant was charged in the Supreme Court of the Northern Territory with indictable offences against the Commonwealth Crimes Act and indictable offences against the Bankruptcy Act 1966 (Cth). The Supreme Court was exercising federal jurisdiction. The appellant pleaded guilty. The High Court held, by a majority, that s 68(1) of the Judiciary Act 'picked up' s 52(1) of the Northern Territory Sentencing Act in relation to the imposition of an aggregate term of imprisonment. The majority also held that pt 1B of the Commonwealth Crimes Act did not cover the field so as to exclude the aggregate sentencing by superior courts of federal offenders under State or Territory laws. No implication arose from s 4K of the Commonwealth Crimes Act to exclude the application of s 52(1) of the Northern Territory Sentencing Act to federal offences.
34 Gleeson CJ said in Putland:
It is impossible to conclude that Pt 1B left no room for the application of, or was inconsistent with, s 52 of the Sentencing Act. Such a conclusion depends upon a misunderstanding of its history, an exaggeration of its comprehensiveness, and the attribution to the legislature of a policy which cannot be discerned in the legislation.
It may be added that the decision of this Court in Kesavarajah v The Queen ((1994) 181 CLR 230) is inconsistent with a proposition that State and Territory laws cannot be picked up unless they are expressly provided for in Pt 1B. That case concerned procedures for determining fitness to be tried. State or Territory law governs the method of determining fitness to be tried. Division 6 of Pt 1B governs the consequences. The two work together [23] - [24].
- See also the reasoning of Gummow and Heydon JJ at [42] - [43], [53] - [56] and Callinan J at [121].
35 Accordingly, pt 1B of the Commonwealth Crimes Act, which makes provision for the sentencing, imprisonment and release of federal offenders,does not cover the field with respect to those matters.
36 Section 4G of the Commonwealth Crimes Act provides that offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
37 In the present case, the federal offence created by s 131.1 of the Commonwealth Code, of which the appellant was convicted, was punishable by imprisonment for 10 years. The offence was an indictable offence. A contrary intention, for the purposes of s 4G of the Commonwealth Crimes Act, does not appear in s 131 or any other provision of the Commonwealth Code.
38 Section 4J of the Commonwealth Crimes Act enables certain indictable federal offences to be dealt with summarily. It reads, relevantly:
(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
(2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a) where the offence is punishable by imprisonment for a period not exceeding 5 years - a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years - a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6) A court of summary jurisdiction shall not impose under subsection (3) or (5):
(a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;
(b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or
(c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
40 In the present case, a contrary intention, for the purposes of s 4J(1), is not revealed by s 131 or any other provision of the Commonwealth Code. Further, s 4J(2) does not apply because the Commonwealth Code does not provide that an offence against s 131.1 may be heard and determined by a court of summary jurisdiction.
41 Section 16BA of the Commonwealth Crimes Act is concerned with taking other federal offences into account where a person is convicted of a federal offence or offences. It provides, relevantly:
(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:
(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;
(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;
(c) the document has been signed:
(i) by the Director of Public Prosecutions;
(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or
(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;
and by the person convicted;
(d) a copy of the document has been given to the person; and
(e) in all the circumstances it is proper to do so;
the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.
(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.
(3) The court shall not take into account under this section any indictable offence that it would not have jurisdiction to try even if the defendant consented to the court hearing and determining proceedings for the offence or the prosecutor requested the court to hear and determine those proceedings.
(3A) Subsection (3) does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence.
(4) Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his or her guilt, the sentence passed on him or her for any of the offences of which he or she has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him or her for the offence if no offence had been so taken into account.
…
(8) Where an offence is taken into account under this section, the court shall certify, upon the document filed in the court, the offence taken into account and the conviction or convictions in respect of which the offence was taken into account and thereafter no proceedings shall be taken or continued in respect of the offence unless the conviction or each conviction, as the case may be, in respect of which the offence has been taken into account has been quashed or set aside.
…
(10) An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.
42 In the present case:
(a) the appellant was charged with the offence against s 131.1 of the Commonwealth Code pursuant to a prosecution notice dated 11 February 2013;
(b) before the primary judge dealt with it, the charge was pending in a court of summary jurisdiction, namely the Magistrates Court of Western Australia; and
(c) the prosecutor and the appellant had not consented, under s 4J(1) of the Commonwealth Crimes Act, to the offence against s 131.1 being heard and determined by the Magistrates Court.
43 Section 31, s 32 and s 33 of the Sentencing Act are to be compared to and contrasted with s 16BA of the Commonwealth Crimes Act.
44 As to s 31, s 32 and s 33:
(a) s 31, s 32 and s 33 do not create a mechanism by which an offence or offences may be 'taken into account' by a court when imposing a sentence for another offence or offences of which a person has been convicted;
(b) rather, s 31, s 32 and s 33 create a mechanism for enabling an offender to be convicted and sentenced, by one judge of a superior court and at one sitting, for all outstanding charges against the offender;
(c) s 31, s 32 and s 33 require the existence of a 'pending charge'; that is, a charge, in a court of summary jurisdiction, of an offence (whether indictable or simple) for which no sentence has been imposed; and
(d) the judge must enter or record a conviction and, subject to s 39(2)(a) and s 46 of the Sentencing Act (which are not presently relevant), impose a discrete sentence for each offence.
45 As to s 16BA:
(a) s 16BA applies only where a person 'is convicted of a federal offence' and wishes to have other federal offences 'taken into account';
(b) s 16BA relates solely to federal offences;
(c) s 16BA creates a mechanism to enable another federal offence or other federal offences to be 'taken into account' when a court imposes sentence for a federal offence or offences of which a person has been convicted;
(d) s 16BA does not require that proceedings for the federal offence or offences sought to be 'taken into account' have been commenced by way of an originating process (for example, a prosecution notice); and
(e) when another federal offence or other federal offences are 'taken into account' under s 16BA, no conviction is entered or recorded in respect of the other federal offence or offences and a discrete sentence is not imposed for each such offence.
46 In the present case, the Magistrates Court and, later, the Supreme Court exercised federal jurisdiction, pursuant to s 68(2) of the Judiciary Act, in respect of the appellant's federal offence.
47 The appellant entered a plea of guilty to the indictable federal offence against s 131.1 of the Commonwealth Code, and the primary judge imposed sentence for that offence consequent upon the plea, without an indictment having been lodged pursuant to s 83 of the Criminal Procedure Act 2004 (WA). That was in accordance with this State's laws of criminal procedure (including the procedure for the sentencing of offenders who have pleaded guilty to indictable offences). See, relevantly, pt 3 div 4 of the Criminal Procedure Act read with s 31, s 32 and s 33 of the Sentencing Act.
48 In my opinion, s 68(1)(c) of the Judiciary Act 'picks up' and applies s 31, s 32 and s 33 of the Sentencing Act as a federal law. My reasons for that opinion are as follows.
49 First, s 31, s 32 and s 33 are a law of criminal procedure (in particular, a law with respect to the procedure for sentencing an offender who has pleaded guilty to an offence in the circumstances and upon the conditions specified in those provisions).
50 Secondly, the expression 'trial and conviction on indictment' in s 68(1)(c), like that expression in s 68(2)(c), must be read in the context of the primary meaning of the word 'conviction'. As Gummow and Heydon JJ (Callinan J agreeing) explained in Putland, this word refers to the judicial determination of a criminal proceeding by a judgment involving two matters, namely a finding of guilt or an acceptance of a plea of guilty followed, in each case, by sentence [32], [121].
51 Thirdly, the expression 'trial and conviction on indictment' in s 68(1)(c), understood in that sense, includes the sentencing of an offender for an indictable federal offence after the offender has pleaded guilty to the offence, even though the offender has entered the plea of guilty, and a superior court will impose sentence for the offence consequent upon the plea, without an indictment having been lodged.
52 Fourthly, s 31, s 32 and s 33 therefore constitute '[a law] of a State … respecting … the procedure for … [the] trial and conviction on indictment' of 'persons charged with offences', within s 68(1)(c) of the Judiciary Act.
53 Fifthly, no Commonwealth law expressly or impliedly makes contrary provision to s 31, s 32 and s 33, and there is no Commonwealth legislative scheme dealing with the subject matter of those provisions which is complete upon its face and has left no room for the operation of s 31, s 32 and s 33. As I have explained, the subject matter and procedure dealt with by s 16BA of the Commonwealth Crimes Act is materially different from the subject matter and procedure dealt with by s 31, s 32 and s 33. Similarly, s 4J of the Commonwealth Crimes Act and s 31, s 32 and s 33 have different areas of operation. All sets of provisions work harmoniously together. Nothing in any Commonwealth law renders the procedure in s 31, s 32 and s 33 inapplicable to a federal offence.
54 It is unnecessary to consider the respondent's submission that s 79(1) of the Judiciary Act operates in relation to s 31, s 32 and s 33.
55 Ground 5 fails.
Ground 6
56 I agree with Mazza JA, for the reasons he gives, that ground 6 has been established to the extent it complains about the primary judge's failure to make a recognisance release order in relation to the federal offence.
Resentencing
57 The appellant has made out grounds 3 and 6.
58 Section 31(3) of the Criminal Appeals Act 2004 (WA) provides that, unless under s 31(4), this court allows an appeal against sentence, it must dismiss the appeal.
59 By s 31(4)(a), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
60 As to ground 3, the individual sentences and the total effective sentence imposed by the primary judge were, as I have said, well within the range open to his Honour on a proper exercise of the sentencing discretion.
61 The past, present and likely future conditions of the appellant's imprisonment, by reason of his status as a former police officer, were a relevant sentencing consideration that his Honour was bound to take into account. See Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [151] - [157] (Buss JA).
62 However, after taking into account:
(a) the maximum penalties for the offences;
(b) the circumstances relating to the commission of the offences (including the vulnerability of the victims) viewed individually and collectively;
(c) the seriousness of the appellant's criminal conduct in relation to the offences viewed individually and collectively;
(d) the past, present and likely future conditions of the appellant's imprisonment by reason of his status as a former police officer;
(e) the appellant's personal circumstances and antecedents; and
(f) all other relevant sentencing factors including the pleas of guilty and other matters of mitigation,
I am of the opinion that different individual sentences, and a different total effective sentence, should not have been imposed.
63 As to ground 6, I am satisfied that, in all the circumstances, the recognisance release order proposed by Mazza JA in respect of the federal offence is appropriate.
Conclusion
64 The orders proposed by Mazza JA should be made.
65 NEWNES JA: I agree with Mazza JA on grounds 3, 4 and 6 and with Buss JA on ground 5. I would make the orders proposed by Mazza JA.
66 MAZZA JA: This is an appeal against sentence.
67 On 1 August 2013, the appellant pleaded guilty to 31 offences made up of 19 offences in an indictment and 12 offences in a notice pursuant to s 32 of the Sentencing Act1995 (WA), being one count of deprivation of liberty, one count of attempted armed robbery, two counts of aggravated sexual penetration without consent, one count of armed robbery, nine counts of fraud, four counts of attempted fraud, one count of stealing Commonwealth property, one count of bringing stolen goods into Western Australia, two counts of stealing, three counts of possession of a prohibited weapon, one count of possession of a controlled weapon, one count of possession of unlicensed ammunition, two counts of possessing stolen or unlawfully obtained property, one count of possession of identification material with intent to commit an offence and one count of possession of a false numberplate. All but two of the offences were committed on various dates between 3 October 2011 and 24 December 2012.
68 On 7 August 2013, Simmonds J sentenced the appellant to a total effective sentence of 10 years' imprisonment with eligibility for parole, backdated to commence on 24 December 2012. He also fined the appellant $300: The State of Western Australia v Adams [2013] WASCSR 152. The details of the offences, the statutory maxima, the individual sentences that were imposed and the orders for concurrency or cumulacy are set out in the annexure to these reasons.
69 Originally the appellant sought to rely on four grounds of appeal. At the hearing of the appeal, the appellant abandoned two of those grounds, but leave was granted to add two further grounds of appeal. In general terms, the appellant alleges that his Honour made several express errors and that the total effective sentence infringed the first limb of the totality principle.
The facts of the offending
70 The appellant was born on 14 October 1968 in Perth. After leaving school, he was employed for approximately 13 years by a bank. He then joined the Australian Federal Police (AFP), for whom he worked in Canberra for approximately five years. He applied for a transfer to Perth, but that application was refused. He then left the AFP.
71 Sometime prior to his departure from the AFP in 2006, he dishonestly appropriated a number of items of property belonging to his employer, including a police radio, a ballistic vest and a container of OC spray. He took these items because he felt annoyed that the AFP had not approved his application to transfer to Western Australia (count 1 on the s 32 notice).
72 Between 2006 and 2010, the appellant was employed by the Australian Customs Service. For three of these years he lived and worked in Darwin. In about June 2010, the appellant was living in an apartment block. He took exception to the behaviour of two men who lived in another apartment in the block. While the men were overseas on holiday, the appellant entered their apartment without their consent. Once inside, he ransacked it. He stole various items of property, including two laptop computers, a hard drive, a Northern Territory driver's licence, a NRMA membership card and a Commonwealth Bank MasterCard. Later, he found and kept the driver's licence of another occupant of the apartment block. The appellant was transferred to Western Australia sometime between November 2010 and January 2011. He brought with him the items he had stolen from the occupants of the apartment block (count 2 on the s 32 notice).
73 In 2011, the appellant joined the Department of Immigration and Citizenship (DIAC). He remained there until his arrest on 24 December 2012.
74 On 3 October 2011, the appellant made an online application for a Commonwealth Bank Smart Access account from a computer at a convenience store in Perth. He applied for the account using false identity details and incorrect information as to his employment, assets and liabilities. Some of the false information came from documents he had accessed through his employment with the DIAC. The Commonwealth Bank approved the application and sent a Visa card and PIN to the address on the application, which was a backpackers' hostel in Victoria. The appellant then telephoned the hostel and asked for the mail to be sent to an address in West Perth which he knew was unoccupied. The appellant later collected the mail, including the mail containing the card and PIN from this address (count 1 on the indictment).
75 On 11 October 2011, the appellant made an online application for a National Australia Bank Low Rate Visa card with a credit limit of $8,000 from an internet cafe, using much the same method as he had in respect of count 1 on the indictment. The application was approved and a Visa card and PIN were issued (count 2 on the indictment). As will be seen, the appellant later used this Visa card and PIN to draw down money to which he was not entitled.
76 On 19 October 2011, the appellant made another online application from an internet café for a National Australia Bank Low Rate Visa card with a credit limit of not less than $500. The appellant used much the same method as he had previously. However, this application was not approved by the bank because the appellant failed to provide it with further information it required (count 3 on the indictment).
77 On 21 October 2011, the appellant stole a cheque in the sum of $259.49 from the letterbox of a unit on Eric Street in Como. The appellant took the cheque to a branch of the National Australia Bank in West Perth and deposited it into the Visa account the subject of count 2 on the indictment. The bank credited the amount of the cheque to that account (count 4 on the indictment).
78 Also on 21 October 2011, the appellant stole $1,000 from the National Australia Bank by withdrawing that sum from the Visa account the subject of count 2 on the indictment (count 3 on the s 32 notice).
79 The next day, 22 October 2011, the appellant withdrew a further sum of $1,000 from the same Visa account (count 4 on the s 32 notice).
80 On 30 October 2010, the appellant made another fraudulent online application, this time to Bankwest for a MasterCard with a credit limit of $3,000. Once the bank requested further documentation, the appellant did not proceed any further with it (count 5 on the indictment).
81 On 8 November 2011, the appellant made another fraudulent online application. On this occasion, he applied to Westpac for a Visa card with a credit limit of $6,200. Although Westpac approved the application, the appellant was required to produce identification in order to collect the card. Ultimately he failed to do so (count 6 on the indictment).
82 Also on 8 November 2011, the appellant made a fraudulent online application from an internet café for an ANZ Visa credit card with a credit limit of $7,000. The application was approved but, as in count 6 on the indictment, the appellant did not collect the card (count 7 on the indictment).
83 At some point on either 13 or 14 December 2011, the appellant went to a Commonwealth Bank branch in West Perth. There, using masking tape, a fishing line and a sinker, he stole, from the cheque deposit box, a cheque made payable to a company in the sum of $2,000. The appellant had previously been in that branch and realised that it would be easy to steal a cheque from the cheque deposit box in the manner that he did. On 14 December 2011, he deposited the stolen cheque into the Commonwealth Bank Smart Access account he had opened on 3 October 2011 (count 8 on the indictment).
84 On either 13 or 14 December 2011, the appellant stole another cheque from the cheque deposit box in a Commonwealth Bank branch in West Perth, using the same equipment he employed in the commission of count 8. The cheque, which was made payable to a company in the sum of $44,511.10, was deposited into the Commonwealth Bank Smart Access account to which I have already referred (count 9 on the indictment).
85 On 30 January 2012, the appellant applied to rent a self-storage unit from a company in Welshpool. He did so under a false name and address, using one of the Northern Territory driver's licences he had stolen and which formed part of count 2 on the s 32 notice. He also provided, as an alternative contact person, the details of someone he had previously worked with at the Australian Customs Service. The appellant used the storage unit to store a number of stolen items, as well as weapons, ammunition and a BB gun which he used to commit some offences which I will soon describe (count 10 on the indictment).
86 On 21 February 2012, the appellant applied for a post office box at the West Perth branch of Australia Post. He did so under a false name and address, using a stolen Northern Territory driver's licence as identification. The post office box was used as a mailing address for invoices for the storage unit he had rented and in applications for bank accounts in false names (count 11 on the indictment).
87 On 22 and 23 March 2012, the appellant parked a vehicle in a parking bay in West Perth. On each occasion, a parking infringement notice was issued for failing to display an unexpired ticket, carrying a $50 fine. Affixed to the vehicle were registration plates that the appellant had removed from another vehicle in South Perth. The evident purpose for using the registration plates was to avoid paying parking fees (count 5 on the s 32 notice).
88 On 30 March 2012, at about 8.20 pm, Ms TEM, a 19-year-old Finnish national, was at a bus stop in West Perth waiting for the arrival of a Red CAT bus. The appellant approached her and said words to the effect of, 'this is a robbery. I'm not joking'. The appellant then pulled up the top he was wearing to show Ms TEM what she believed was a handgun tucked into the waistband of his shorts. He stated, 'this is a real gun', or words to that effect, and then said, 'give me your cash'. The handgun was in fact a BB gun.
89 The victim removed a $20 note from her bag and went to hand it to the appellant. However, he said words to the effect of, 'no, not in public, go there', and then forced the victim, against her will, to walk to the rear of some nearby business premises. The victim felt that she had no choice but to do so, believing that the appellant had a firearm and there was no one around to assist her.
90 The rear of the premises was very dark. The victim was, understandably, scared. The appellant pushed her against a brick wall, grabbed her handbag and started searching through it. He then demanded that she take her jacket off.
91 At this point, Ms TEM was crying. The appellant began rubbing her on the upper arm. She asked the appellant to leave her alone. He then said, 'I want to lick your pussy'. He pushed the victim onto some steps, forced her legs apart and, after removing her underpants, inserted two fingers into her vagina. He asked, 'do you like it'? The victim, still crying, replied, 'no'.
92 The appellant then moved his face to the victim's genital area. He licked the outside and then the inside of her vagina. While this was occurring, the victim attempted to remove what she thought was the handgun from the appellant's shorts. The appellant stopped what he was doing and jumped up. Ms TEM managed to dig her fingernails into his neck, but this did not prevent him from grabbing the gun and pointing it at the victim's stomach. He then pulled a large black-handled kitchen knife from his backpack and asked the victim if she wanted him to slash her face. He asked to see the victim's passport. After doing so, he said something to the effect of, 'now I know your name, bitch, if you go to the police'. The appellant was disturbed by some noise coming from an adjacent building. He picked up the victim's underpants, jacket, handbag and other items and left the scene (counts 12, 13, 14 and 15 on the indictment). Shortly after, the victim complained to a friend and the police were called. Forensic exhibits were taken from the scene and a male DNA profile was obtained. Later, that DNA profile was matched to the appellant.
93 On 29 April 2012, about a month after the offences involving Ms TEM, the appellant committed another offence in West Perth. The appellant parked his motorcycle and changed his clothing in a way which was intended to disguise his appearance. At approximately 4.15 pm, the victim, Ms JSR, was walking towards her residence. The appellant ran past and stopped in front of her. When the victim got to within a metre of him, the appellant said something about a robbery and then, 'come to the garage', or words to that effect. There was an underground car park nearby. Ms JSR was shocked and terrified. The appellant, as he had in the offences involving Ms TEM, lifted up the top he was wearing and showed the victim the handle of what she thought was a handgun tucked into the waistband of his shorts. By now, Ms JSR was completely terrified. She took her handbag from her shoulder and threw it at the appellant, hitting him. She then turned and ran away, screaming for help. The appellant ran back to his motorcycle and left the scene. Ms JSR's handbag contained a smartphone, a wallet, the victim's driver's licence, a Visa card and other sundry items. It was not recovered (count 16 on the indictment).
94 On 28 November 2012, the appellant made two online applications from an internet café for Commonwealth Bank Smart Access account debit cards. He used much the same fraudulent method as he had in earlier offences of this kind, including the use of documentation that he had access to by virtue of his employment with the DIAC. The address used in the applications was the post office box in West Perth the subject of count 11 on the indictment (counts 17 and 18 on the indictment).
95 On 24 December 2012, detectives from the Sex Assault Squad executed a search warrant at the appellant's residence in Como. There they found a New South Wales student identification card in the name of Mr CJM with an address in Potts Point, New South Wales. On the card were photographs of the appellant and across the photographs was a signature of Mr CJM. The appellant admitted that he had arranged for the false card to be made. The appellant had used the identification card to falsely represent that he was Mr CJM when he exchanged €1,000 for $1,185 (count 19 on the indictment). The police also located 38 items of opened Australia Post mail stolen by the appellant from addresses in Mosman Park, South Perth, West Perth and Ascot (count 12 on the s 32 notice). He was placed under arrest.
96 On 28 December 2012, detectives executed a search warrant on the appellant's self-storage unit at Welshpool. There, they found a flick-knife, three stun-guns, three knuckledusters, a canister of OC spray and some unlicensed ammunition. The police also located nine items of mail which had been stolen from addresses in Como, South Perth and West Perth. The appellant had used information from this mail for the purpose of making online applications for transactional and credit accounts. The police also located the registration plates the subject of count 5 on the s 32 notice (counts 6 - 11 on the s 32 notice).
The appellant's antecedents
97 The appellant's parents separated when he was three years old. After that, he was brought up by his mother and had nothing to do with his father. His mother, at one point, was in a relationship with a man who was physically abusive towards her.
98 The appellant left school halfway through Year 11, but later completed Year 12. I have already referred to the appellant's employment history. Since leaving school, he has been constantly and productively employed.
99 He has no relevant criminal history. Moreover, he has no history of alcohol or substance abuse. The appellant married in 1999, but separated from his wife in 2006. Subsequently, he has been in a long term relationship with another woman. He has no children.
The expert reports
100 The learned sentencing judge received and took into account a number of reports, including a report by consultant forensic psychiatrist Dr Mark Hall dated 25 July 2013, and a report from forensic and clinical psychologist Ms Mary-Anne Martin also dated 25 July 2013.
101 Although Dr Hall noted that the appellant's clinical history was marked by 'inconsistencies and contradictions' and thus 'highly unreliable', he was able to draw a number of conclusions.
102 In Dr Hall's opinion, the appellant does not suffer from a major mental illness. However, a pattern of 'deviant sexual arousal' was apparent from the appellant's report of 'intrusive, intense and recurrent sexual fantasies of initiating a rape that progresses to a consensual encounter that proves pleasurable to the victim'. In Dr Hall's opinion, the appellant acted on these fantasies. Dr Hall described the appellant's fantasies as 'entrenched' and said that they were 'highly likely to [reflect] an ongoing deviant sexual interest'.
103 Dr Hall described the appellant's account of the offending. The appellant told Dr Hall that the fraud offences were 'easy'. The appellant said that he formed the intent to commit rape around Christmas 2011, after 'an attractive girl came up to me in the street and asked for directions'. He told Dr Hall that he then set himself up in a state of readiness in case the opportunity arose. He said that he worked in West Perth and was familiar with the area and that 'he knew where all the CCTV cameras were'.
104 The appellant said that the offences he committed on 30 March 2012 'didn't … live up to the fantasy', and that afterwards he was 'shocked' by what he had done. Dr Hall reported that the appellant told him that his fantasies resumed the day prior to the offence on 29 April 2012 and were 'intrusive, repetitive and unmovable for two hours before the attack'.
105 Dr Hall observed in the appellant a number of narcissistic and obsessive-compulsive traits.
106 In Dr Hall's opinion, the appellant has low self-esteem which he compensated for by 'the acquisition and assertion of power taken from his victim through forced sexual acts'. Dr Hall said that the appellant's belief that he was being 'sexually unselfish and does not intend to harm the victim is a form of rationalisation or cognitive distortion'. Dr Hall assessed the appellant as being at moderate risk of reoffending in a sexual way in the future without intervention. He described the appellant as having 'high sex offender treatment needs'. Dr Hall suggested that the appellant should participate in an intensive sex offender treatment program. He thought that selective serotonin reuptake inhibitor medication could 'be very useful in reducing the frequency and intensity of deviant sexual fantasies and urges'.
107 As I read Ms Martin's report, it is largely consistent with that of Dr Hall. However, in her opinion, the appellant represented as a low to moderate risk for sexual reoffending, absent any effective treatment. She added that, in her opinion, the appellant posed a moderate to high risk of committing further dishonesty offences.
The sentencing remarks
108 His Honour rightly considered the offences committed on Ms TEM as the most serious. He said that they involved a significant measure of premeditation and were sexually motivated. He noted that the offending occurred in a secluded location and that the victim had been deprived of her liberty for a significant period of time. As to the offences of aggravated sexual penetration, he said:
The aggravated sexual penetration in each case was accompanied by the use of not one but two weapons, with accompanying serious threats before, during and after the incident; the examining of the passport with a further threat arising out of that examination; and the aggravated sexual penetration involving some persistence was of a greatly vulnerable victim in circumstances where [the appellant] caused her enormous fear in the period leading up to the penetration involved, while she also suffered considerable emotional distress and stress during and in the aftermath of these incidents [145].
109 As to the armed robbery offence in respect of Ms JSR, which was committed on 29 April 2012, his Honour found that it was sexually motivated. He said it involved 'significant premeditation and planning' and that the appellant's actions terrorised the victim.
110 With respect to the dishonesty offences, his Honour noted the appellant's statement to the psychologist that he felt empowered by the cleverness of his offending. His Honour stated that the fraud and attempted fraud offences involved 'deliberate, systematic and planned criminality over a significant period'.
111 The most significant mitigating factor was the appellant's pleas of guilty, which attracted a 25% discount pursuant to s 9AA of the Sentencing Act, the maximum allowable under that provision. His Honour observed that there was some 'qualified' mitigation by reason of remorse, victim empathy, acceptance of responsibility and the appellant's 'very difficult upbringing'.
112 His Honour noted the assessments in the psychiatric and psychological reports as to the appellant's risk of reoffending. He observed that both reports recommended that the appellant undertake sex offender treatment in custody, noting 'the high desirability of such access'. As to this, his Honour observed that the appellant's placement in a maximum security protection unit may cause him difficulty in accessing these programs.
113 His Honour made express reference to the totality principle and the so-called one transaction rule. His Honour then imposed the sentences referred to in the annexure for each offence and made orders for concurrency and cumulacy.
114 To summarise, his Honour sentenced the appellant on all of the dishonesty offences, save for the theft of Commonwealth property, to a total term of 20 months' imprisonment; for the offences committed against Ms TEM, the appellant was sentenced to a total of 4 years and 1 month imprisonment; for the armed robbery on 29 April 2012, he was sentenced to 3 years 8 months' imprisonment; and for the offence of stealing Commonwealth property, 16 months' imprisonment. His Honour ordered full accumulation of all of these sentences except for the offence of stealing Commonwealth property. In relation to this offence, he ordered that the sentence be served first and that a period of 7 months of it be served before any of the other sentences. In this way, his Honour imposed a total effective sentence of 10 years' imprisonment.
115 In relation to the Commonwealth offence, his Honour did not make a recognizance release order pursuant to s 19AC of the Crimes Act 1914 (Cth).
The grounds of appeal
116 The grounds of appeal the appellant pursued are as follows:
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117 Leave to appeal was granted in respect of these grounds, save for ground 3. In respect of that ground, the question of leave to appeal was referred to the hearing of the appeal.
118 The general principles which are applicable to this appeal are those set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They are well known and there is no need to repeat them.
Ground 3 - Conditions of imprisonment
119 Defence counsel submitted to the learned sentencing judge that his Honour should take into account that the appellant was serving his sentence in what counsel described as 'the maximum protection unit' [sic] (MPU) because he was an ex-police officer. Counsel asserted that the appellant was 'doing hard time' in the MPU. Further, defence counsel submitted that the appellant 'will find it very difficult to access rehabilitative programs' because of his incarceration in the MPU (AB 153 - 154). When questioned further by his Honour, defence counsel said that the only point he wished to make was that it would be 'very difficult' for the appellant to be made eligible for parole while he remained in the MPU (AB 155). \
120 The learned sentencing judge, in his sentencing remarks, noted defence counsel's submission that the appellant's 'placement in the maximum protection unit at Casuarina Prison may cause … difficulties in [the appellant's] ability to access needed programs'. His Honour then said:
I note, what seems to me to be reasonably apparent, the high desirability of such access. However, I do not have the power to order such access be provided. I further note that it was not pressed on me that [the appellant was] subject to such a special burden in prison that any sentence of imprisonment … should be lighter on that account; and, in any event, no such special burden is evident to me [229].
121 Ground 3 alleges that the learned sentencing judge erred by failing to take into account that the conditions of imprisonment for the appellant would be more restrictive than for other prisoners in determining the length of the total sentence. As framed, the ground of appeal appears to be referring to defence counsel's submission that, by reason of the appellant's service as an AFP officer, his time in prison would be spent in protective custody and, as a consequence, his conditions of imprisonment would constitute 'hard time', that is, they would be materially more arduous than those of the general prison population. An aspect of these more arduous conditions of confinement is, according to the appellant, his difficulty in accessing programs which would improve his eligibility to being released on parole. The appellant will be eligible for release on parole on or around 23 December 2020.
122 In support of this ground, the appellant, by an application dated 12 November 2013, sought to adduce additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The additional evidence the appellant sought to adduce is contained in his affidavit sworn 12 November 2013. The affidavit is brief and I will quote it in full, omitting formalities:
1. I am the Appellant.
2. I swear this Affidavit in support of my application to adduce additional evidence at the hearing of my appeal.
3. Since the time of my arrest I have been held in custody in the Special Purpose Unit at Casuarina Prison.
4. This placement is due to me being a former Australian Federal Police Officer, Immigration Officer and Customs Officer.
5. Due to me being in this unit I am not able to access recreation or education. I am able to undertake work cleaning the visits area in the prison.
6. For me to undertake the sex offender treatment programme I would need to sign a waiver absolving the Department of Corrective Services from their duty of care in relation to me.
7. For me to move to medium or minimum security, I would also need to sign such a waiver. My case was on the front page of the West Australian.
8. After a prisoner was set on fire, I received a note saying 'you're next'.
9. I am subject to constant lockdowns and spend between 16 to 18 hours per day locked down. Sometimes this period is as low as 14 hours.
10. There is only a small courtyard for exercise.
11. The inability to access programmes unless I sign a waiver is likely to affect my ability to be granted parole.
12. I greatly regret my offending but consider that the conditions of my imprisonment should have been taken into account in determining the total length of the imprisonment which I am to serve.
123 It is immediately apparent that the appellant's affidavit lacks crucial detail. For example:
(a) he does not specify with precision the conditions in which he is held in the special purpose unit at Casuarina Prison;
(b) he does not state who advised him nor in what circumstances he was advised that he would need to sign the waivers that he refers to;
(c) he does not specify the conditions of his work; and
(d) with respect to the alleged incident involving the prisoner being set on fire and the threat he received, he does not state:
(i) when the incident occurred;
(ii) when he received the note; and
(iii) whether he reported the matter to a prison officer.
125 Contrary to the appellant's affidavit, Mr Pittard stated that the 'unlock periods' in the SPU are comparable to general prison units. Further, the appellant has access for two to three hours a day to two outdoor recreational areas and a day room for prisoners which contains a pool table and television.
126 Mr Pittard states that the appellant is employed as a cleaner of the visits area for approximately three to four hours a day, seven days a week. He also stated that the Department of Corrective Services no longer utilises 'protection waivers'.
127 With respect to the appellant's access to programs, Mr Pittard stated that the appellant has no access to programs while in the SPU, but that he is scheduled to attend a sex offender program at another facility in the fourth quarter of 2015. In Mr Pittard's experience, the appellant's current protection status will impact adversely on his ability to be transferred to an alternate facility to complete the sex offender treatment program in a group setting. However, in his view, it is more likely, with the passage of time, that the appellant may be able to transfer to another facility to complete the group program towards the end of his sentence in 2019 and 2020 (that is, before his current parole eligibility date). He states that currently there is no ability for prisoners to participate in individual programs. Mr Pittard stated that the appellant's former status as an AFP officer 'would possibly impede his ability to fulfil his program requirements over the next few years. However, it [is] not inconceivable that with the passage of time, his program requirements could be fulfilled closer to his earliest eligibility date for release of 23 December 2020'. Mr Pittard stated that, at the moment, the appellant could access educational programs by correspondence, subject to their availability, but noted that his placement in the SPU precluded him from accessing the education centre with mainstream prisoners at Casuarina Prison.
128 Mr Pittard stated that there was no evidence on the Total Offender Management Solution database to support the appellant's allegation that he received a threat after a prisoner was set on fire.
129 Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material before the lower court. However, s 39(3) of that Act provides that the statement in s 39(1) does not affect the power of an appeal court to admit evidence under s 40. Section 40(1)(e) invests an appeal court with the power to 'admit any other evidence'. The test to be applied in determining whether additional evidence should be admitted under s 40(1)(e) in an appeal against sentence correlates with the requirement in s 31(4) of the Criminal Appeals Act that this court may allow the appeal if, in its opinion, a different sentence should have been imposed: Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [52] - [53] (Owen JA).
130 I would admit the additional evidence in the appeal sought to be adduced by both the appellant and the respondent. It is in the interests of justice to do so and the evidence adduced by the appellant, if accepted, may require that a different sentence should be imposed.
131 There are differences in the affidavits. Where there are differences, I prefer the evidence of Mr Pittard. The information he provides is more precise. Further, Mr Pittard has access to the records of the Department of Corrective Services which are, in the circumstances, more likely to be accurate than the information deposed to by the appellant. Finally, it is of some relevance in assessing the credibility of the appellant's affidavit that Dr Hall formed the opinion that the appellant was a highly unreliable historian.
132 On the evidence provided by Mr Pittard, I am satisfied that, as a result of the appellant's service with the AFP, his movements and participation in programs has been, and will continue to be, adversely affected. Further, based on common experience, former police officers are at greater risk of assault and intimidation than the general prison population. Consequently, it may be said that the appellant's imprisonment will be materially more arduous than for other prisoners. The evidence is insufficient to establish that the appellant will not, prior to being eligible for parole, have access to rehabilitative programs or a sex offender treatment program. I do not accept the appellant's evidence that he received a threat he would be set on fire.
133 In Milenkovski v The State of Western Australia [2014] WASCA 48, Buss JA undertook a careful and detailed analysis of cases decided in this jurisdiction and around Australia concerning the mitigation or discount which should be given to an offender for the fact that he or she has been, or is more likely to be, subject to prison conditions that are materially more arduous than normal, other than for reasons attributable to breaches of prison rules or disciplinary requirements. From these cases, his Honour distilled the following principles:
First, the fact that an offender has served or is likely to serve at least part of a term of imprisonment in conditions that are materially more arduous than those applicable to the general prison population is a factor to be taken into account in the determination of the sentence.
Secondly, if it is submitted, accepted or otherwise apparent at the sentencing hearing that an offender has been or is likely to be held in custody under conditions that are, at least in some respects, materially more arduous than those applicable to the general prison population, the prosecutor and defence counsel should provide the sentencing judge with all available information as to:
(a) the facts and circumstances of the offender's detention in custody;
(b) how those facts and circumstances differ from the facts and circumstances applicable to the general prison population; and
(c) the nature and extent of any consequential hardship or benefit to the offender.
Thirdly, the weight to be given in the sentencing outcome to an offender's detention under conditions that have been or are likely to be materially more arduous than those applicable to the general prison population will depend on all the facts and circumstances of the case including, for example, the reasons why the offender required or is likely to require protection and the duration or likely duration of the materially more arduous conditions. Plainly, any benefits to the offender, as well as the hardships, from the special nature of the offender's detention must be taken into account.
Fourthly, greater leniency or a larger discount will ordinarily be given to an offender who is at risk of reprisals from other criminals held in prison because of the offender's cooperation with law enforcement authorities than an offender who is at risk of reprisals because of grudges arising in the context of the illegal activities of rival criminal gangs. The reason for this difference in treatment lies in the public policy rationale for allowing leniency or a discount for cooperation with law enforcement authorities, namely the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. This rationale is absent where the risk to the offender is attributable to grudges of the kind I have mentioned.
Also, greater leniency or a larger discount will ordinarily be given where the materially more arduous conditions have caused or exacerbated an offender's physical or mental illness or disability than where those conditions have not had that deleterious effect on an offender.
Fifthly, the justification for allowing an offender some leniency or a discount where he or she has been or is likely to be held in custody under conditions that are materially more arduous than those applicable to the general prison population is that time spent in custody under materially harsher or more onerous circumstances is, in general, equivalent, in evaluating the sentencing objectives of punishment, denunciation, personal deterrence and general deterrence, to a longer period in custody under materially less harsh or onerous circumstances [152] - [157].
134 In my opinion, having regard to the matters set out in [132] of these reasons, the conditions in which the appellant has served and will serve his sentence are more arduous because of his service with the AFP. Leave to appeal on ground 3 should be granted. The ground has been made out. The question of whether a different sentence should have been imposed will be addressed later in these reasons.
Ground 4 - Alleged breach of the totality principle
135 The totality principle is well known and the cases in respect of it are legion. An accepted statement of the principle was made by McLure JA (as her Honour then was) in Roffey v The State of Western Australia [2007] WASCA 246 in these terms:
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) [24] - [26].
136 The appellant submits that the total effective sentence imposed upon him breached the first limb of the totality principle.
137 Generally, it is relevant, when considering whether the totality principle has been infringed, to refer to similar cases to ensure that the outcome of the case at hand is broadly consistent with other comparable cases. However, in the present case, this exercise is of no utility because of the unique combination of offending by the appellant. The appellant has not only committed serious dishonesty offences, both against State and Federal law, but he has also committed serious sexual offences and offences of armed robbery and attempted armed robbery.
138 The appellant's overall offending was self-evidently very serious. It was varied and substantial. It involved deliberate, systematic and planned criminality executed with considerable sophistication. Without downplaying the dishonesty offences, the sexual and robbery offences were particularly serious, being committed against vulnerable victims who were randomly chosen and attacked on public streets, in the case of Ms TEM, at night. The offending involved the use of weapons and threats to terrify and subdue them. The appellant used the skills he had gained in the work he had undertaken in the banking and law enforcement sectors to commit the offences, and went to considerable lengths to avoid detection.
139 His Honour took into account the mitigating factors in the case, particularly the appellant's pleas of guilty and his remorse. Nevertheless, the predominant sentencing considerations were general and personal deterrence, punishment and public protection.
140 In my opinion, the total effective sentence of 10 years' imprisonment was proportionate to the totality of the appellant's substantial and varied criminal conduct and all the other factors relevant to the case. It could not in any way be viewed as unreasonable or plainly unjust. Ground 4 has not been made out.
Ground 5 - Can a Commonwealth offence be included in a s 32 notice?
141 Part 3 div 6 of the Sentencing Act deals with pending charges in these terms:
31. Term used: pending charge
In this Division -
pending charge means a charge, in a court of summary jurisdiction of an offence (whether indictable or simple) for which no sentence has been imposed.
32. Pending charges, offender may request court to deal with
(1) An offender who is to be sentenced by a superior court for an offence (in this Division referred to as the original offence) may request the court to also deal with any pending charges against him or her.
(2) On such a request being made, a list of pending charges against the offender is to be prepared and served in accordance with rules of court.
(3) The list must not include any indictable offence that the superior court would not have jurisdiction to deal with, even with the consent or at the election of the offender or the prosecutor.
(4) For the purposes of this section a superior court is to be taken to have jurisdiction to deal with simple offences.
33. Pending charges, court may deal with
(1) When a list of pending charges has been prepared and served, the superior court must ask the offender -
(a) to plead to any of the pending charges listed which the offender has not previously been convicted of; and
(b) to say if he or she wants the superior court to also pass sentence for each of those pending charges that he or she is convicted of.
(2) If the State consents and the superior court considers that it is just to do so, it may, in addition to sentencing the offender for the original offence, also sentence the offender for each of the pending charges the offender is convicted of and wants dealt with.
(3) A sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment.
(4) A pending charge that was not dealt with by the superior court may be dealt with by the court before which it was pending.
(5) If an offender pleaded guilty before the superior court to a pending charge but it was not dealt with by that court, the plea is not admissible in any proceedings for that charge.
142 The list of pending charges is commonly referred to as a s 32 notice. For the most part, I will refer to the provisions in pt 3 div 6 as the s 32 notice procedure.
143 The s 32 notice procedure enables a superior court, that is, either the Supreme Court or the District Court, when sentencing an offender for an offence on indictment (the original offence) to sentence that offender for a charge pending in a court of summary jurisdiction, whether indictable or simple, for which a sentence is yet to be imposed. If the pending charge is indictable, an indictment is not required. If the pending charge is a simple offence, the superior court is invested with jurisdiction to deal with it.
144 For the superior court to sentence an offender for a pending charge:
1. The offender (not the State) must request the superior court to deal with the pending charge.
2. A list of pending charges must be prepared and served.
3. The superior court must ask the offender:
(a) to plead to any of the pending charges of which the offender has not already been convicted; and
(b) to say if he or she wishes the superior court to pass sentence on the pending charge of which he or she has been convicted.
4. The State must consent to the superior court sentencing the offender for the pending charge.
5. The superior court must consider it just to sentence the offender for the pending charge.
145 If the pending charge is an indictable offence, the superior court has 'full power to sentence as a superior court exercising its ordinary jurisdiction, despite the absence of an indictment': Rafferty v The Queen [2002] WASCA 312; (2002) 135 A Crim R 282 [15]. Thus, if the indictable offence is capable of being dealt with summarily, having regard to s 5 of the Criminal Code (WA), the superior court is not restricted to the summary conviction penalty provided for the offence: Rafferty [16].
146 The aim of the s 32 notice procedure is to enable the superior court, where an offender wishes, and the State consents, to sentence him or her at the one time in respect of all charges for which the offender has been convicted. The utilitarian advantages to the criminal justice system are obvious. The use of the procedure facilitates the superior court's consideration of issues such as concurrency, cumulacy and totality. It enables an offender to find out at the one hearing the total sentence he or she will have to serve, rather than having to endure further additional appearances and the uncertainty that they may bring. The procedure is particularly useful where there is an association between the original offence and the pending charge, for example, where a person is convicted of drug offences under the Misuse of Drugs Act which can only be dealt with on indictment and other drug offences which are said to have occurred at or around the same time, that may be dealt with summarily.
147 The appellant now contends that a Commonwealth offence cannot be dealt with under the procedure. No such contention was made to the primary judge. The appellant requested the Supreme Court to deal with the Commonwealth offence pursuant to the s 32 notice procedure. There is no issue in this appeal as to whether the procedural requirements of the procedure were met.
148 The ground only concerns count 1 on the s 32 notice which is the charge of stealing Commonwealth property, contrary to s 131.1 of the Criminal Code (Cth). An offence against s 131.1 is an indictable offence (s 4G of the Crimes Act) and thus may be dealt with by the Supreme Court in its general criminal jurisdiction. It is also capable of being dealt with summarily in certain circumstances (s 4J of the Crimes Act). At the time the appellant was to be sentenced in the Supreme Court for the various offences contained in the indictment, the Commonwealth offence was a pending charge in the Stirling Gardens Magistrates Court.
149 The appellant's argument in support of ground 5 is set out in short supplementary written submissions filed with the court's leave after the hearing of the appeal. In substance, the only point made is that the s 32 notice procedure is contained in a State statute, the Sentencing Act, which is limited in its terms to State offences. It was not suggested that the Supreme Court did not have the jurisdiction to sentence the appellant for the Commonwealth offence had the procedure for dealing with indictable offences under the Criminal Procedure Act 2004 (WA) been used. Thus it can be seen that the appellant's argument is as to procedure. Although not expressly stated, it appears that the appellant contends that the sentence should be set aside. Presumably, the appellant wishes this court to send the matter back to be dealt with by the Magistrates Court.
150 The respondent submitted that s 68 or, alternatively, s 79 of the Judiciary Act 1903 (Cth) operates to 'pick up' the s 32 notice procedure as Commonwealth law and thus allowed the primary judge to deal with the Commonwealth offence. Those sections relevantly provide:
68 Jurisdiction of State and Territory courts in criminal cases
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
…
79 State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
151 The appellant did not refer to these statutory provisions in his supplementary written submissions, even though, at the hearing of the appeal, the bench drew the appellant's counsel's attention to them.
152 The issue raised by ground 5 is whether the s 32 notice procedure applies to permit a superior court sentencing an offender for a State offence on indictment to also sentence the offender in respect of an indictable Commonwealth offence pending in a court of summary jurisdiction.
153 As the appellant points out, the legislative provisions in pt 3 div 6 are State legislation concerned with the imposition of sentences for offences against State law. However, ground 5 cannot succeed if the provisions are picked up as laws of the Commonwealth by s 68 or s 79 of the Judiciary Act.
154 Section 68(1) provides State laws with respect to criminal procedure are to apply 'so far as they are applicable' to persons who are charged with Commonwealth offences for which State courts have jurisdiction conferred by s 68. Subsection (2) is concerned with a State court's jurisdiction to deal with Commonwealth offences: Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119 [19].
155 Relevantly to this case and in general terms, s 68 of the Judiciary Act provides that the laws of a State relating to the arrest and custody of offenders or persons charged with offences and the procedure for their trial and conviction are to apply, so far as they are applicable, to persons charged with offences against the Commonwealth, and confers jurisdiction upon State courts in relation to those matters: Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 [4]. The policy of s 68 is, as Dixon J explained in Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551, 560:
… to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.
156 The statutory language of s 68 is 'general and ambulatory' and enables procedural changes and developments which occur from time to time under State law to be applied to Federal offences: R v Gee [2003] HCA 12; (2003) 212 CLR 230 [6] - [7] (per Gleeson CJ); also see R v LK [2010] HCA 17; (2010) 241 CLR 177 [13] (per French CJ). It is relevant to observe that it is not uncommon for an accused person to be charged and convicted of offences against both State and Federal Law. Of course, s 68 must nevertheless be construed according to its terms.
157 Neither s 68(1) nor s 68(2) expressly refers to the sentencing laws of a State. However, it has been held that the word 'conviction' includes sentence: Williams v The King [No 2] (560); Putland [4] and [32].
158 Because the appellant's argument concerns a matter of procedure, it is appropriate to focus on subsection (1) of s 68. The first question to be determined is whether the provisions in pt 3 div 6 are 'applicable'. It is not an answer to this question to say that the provisions are only concerned with sentencing for offences contrary to State law because that will be 'the usual characteristic of all laws made applicable to Commonwealth offences by operation of s 68 of the Judiciary Act': Commonwealth Director of Public Prosecutions v Wallace [2011] WASC 286; (2011) 43 WAR 61 [31]. The provisions in pt 3 div 6 would be inapplicable if there existed a Commonwealth sentencing regime which covered the field with respect to the sentencing of Commonwealth offenders so as to leave no room for the operation of the s 32 notice procedure or, alternatively, if it was inconsistent, either expressly or by implication, with a Commonwealth law: Putland [7].
159 In Putland, the majority (Gleeson CJ, Gummow, Callinan and Heydon JJ) decided that pt 1B of the Crimes Act, which deals with the sentencing, imprisonment and release of Commonwealth offenders, did not cover the field in relation to sentencing so as to exclude the application of State and Territory laws on that subject which are applied to Commonwealth offences by s 68 of the Judiciary Act. As to any Commonwealth law which may be inconsistent with pt 3 div 6, it could be argued that s 16BA(1) of the Crimes Act may be such a law.
160 In general terms, s 16BA(1) of the Crimes Act allows offences 'to be taken into account' by a court when passing sentence on an offender for an offence or offences of which he or she has been convicted.
161 The procedure under s 16BA of the Crimes Act permits a court sentencing an offender for a Commonwealth offence to take into account other Commonwealth offences which the offender is believed to have committed and to which they have pleaded guilty when determining the sentence to be imposed for that offence: s 16BA(2). The s 32 notice procedure is not a taking account mechanism and is not inconsistent with s 16AB. It is a procedure by which an existing charge contained in a prosecution notice before a court of summary jurisdiction, whether indictable or simple, may be dealt with by a superior court and results in the resolution of existing charges and the imposition of discrete (and, in appropriate cases, additional) penalties for those charges.
162 The issue that remains is whether the s 32 notice procedure comes within the statutory language of s 68(1) of the Judiciary Act. It is clearly not a procedure within subsections (1)(a), (b) or (d). This leaves, as the only viable possibility, subsection (1)(c). In my opinion, the s 32 notice procedure is accommodated within that subsection.
163 The s 32 notice procedure is a sentencing law of this State. As I have observed, such laws come within the word 'conviction' in subsection (1)(c). The appellant was being sentenced, albeit for State offences, 'on indictment'. The use of the s 32 notice procedure is dependent upon, and bound up with, an offender being sentenced for an offence on indictment. In this sense, and bearing in mind the general language and policy behind s 68, it can be said that the procedure is a procedure for the conviction of a person charged with offences 'on indictment'. Thus, it is a procedure which comes within the ambit of s 68(1)(c).
164 It follows that the Commonwealth offence could validly be dealt with by the learned sentencing judge pursuant to the s 32 notice procedure.
165 In my opinion, the s 32 notice procedure is also picked up by s 79(1) of the Judiciary Act which reads:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
166 The statutory language of s 79(1) is broad. I can see no textual reason to read the subsection as not applying to criminal procedure and there is no statement in the case law relating to s 79 to the contrary.
167 Insofar as the s 32 notice procedure relates to pending indictable charges, they are, in my opinion, procedural in nature. Their effect is, as I have already noted, to bring the matter before the superior court without the need for committal proceedings or an indictment. The provisions are not inconsistent with the Constitution or, as far as I can see, any law of the Commonwealth. Simmonds J was exercising Federal jurisdiction in sentencing the appellant for the offence of stealing Commonwealth property and the s 32 notice procedure was applicable to the exercise of that function. His Honour was, by virtue of s 79(1) of the Judiciary Act, able to deal with that offence pursuant to the procedure.
168 Contrary to the appellant's submissions, the s 32 notice procedure applied to permit the learned sentencing judge to sentence the appellant for the Commonwealth offence. Ground 5 has not been made out.
Ground 6 - The failure to fix a recognizance release order
169 Ground 6 alleges that the learned sentencing judge erred by failing to fix a recognizance release order as required by s 19AC of the Crimes Act.
170 Relevantly, s 19AC(1) provides that, save in circumstances which do not apply to the present case, the court must make a recognizance release order in respect of a person convicted of a Federal offence, where the sentence does not exceed 3 years. The respondent concedes that his Honour overlooked this provision when sentencing the appellant for the Commonwealth offence of stealing Commonwealth property. The concession has been correctly made.
171 I note that in cases where a sentencer fails to fix a recognizance release order pursuant to s 19AC of the Crimes Act, an application may be made by the Attorney General, the Commonwealth Director of Public Prosecutions or the offender to the court at first instance to make the order: s 19AH. This procedure is the ordinary way of dealing with the inadvertent omission to make a recognizance release order. That said, s 19AH is not exhaustive. This court is not precluded from dealing with the omission as a ground of appeal.
172 The appellant submitted that, as a consequence of his Honour's error, this court's power to set aside all of the sentences imposed by the learned sentencing judge was enlivened. This submission cannot be accepted. The appellant does not dispute the length of the head sentence that was imposed for the Commonwealth offence. The imposition of a recognizance release order has no impact upon the length of the other individual sentences imposed on the appellant for State offences or the total effective sentence. In these circumstances, there is no reason why the error in failing to make a recognizance release order should enliven this court's power to resentence the appellant for all of the offences of which he was convicted.
173 In oral argument, it was agreed that the appropriate recognizance release order was 7 months, in order to coincide with the length of the sentence the appellant must serve before the sentences for State offences commence. Such an order is appropriate in the circumstances of this case. Ground 6 has been made out to the extent that a recognizance release order will be made.
Resentencing
174 Grounds 3 and 6 have been made out. I would grant leave to appeal on ground 3. Grounds 4 and 5 have not been made out. The error in ground 6 only requires this court to impose a recognizance release order for the Commonwealth offence of appropriating Commonwealth property and does not require this court to interfere with the head sentence for that offence or with the total effective sentence. Ground 3 is capable of affecting the total effective sentence imposed by his Honour. However, having regard to all of the circumstances of the case and particularly to the seriousness of the appellant's overall offending and the need for deterrence, I would not impose a different sentence.
Orders
175 The orders I would make are as follows:
1. Leave to adduce additional evidence is granted.
2. Leave to appeal on ground 3 is granted.
3. The appeal is allowed.
4. The sentence imposed on count 1 in the s 32 notice is varied only to the extent that the appellant be released in relation to that sentence after serving 7 months of it on recognizance in the sum of $10,000.
Offences on Supreme Court Indictment 68 of 2013:
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Section 32 Notice Offences:
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Orders for concurrency and cumulacy:
Dishonesty offences, save for count 1 on s 32 notice – 20 months' imprisonment (counts 1 - 11 and 17 - 19 on the indictment to be served concurrently with counts 2 - 12 on the s 32 notice).
Offences against Ms TEM – 49 months' imprisonment (counts 12 - 15 on the indictment to be served concurrently).
Sentence for offences against Ms TEM to be served cumulatively on sentences for dishonesty offences (69 months in total).
Sentence of 44 months' imprisonment for count 16 to be served cumulatively on sentences for dishonesty offences and offences against Ms TEM (113 months in total).
First 7 months of sentence for count 1 on the s 32 notice (head sentence) to be served before any of the other sentences of imprisonment are served, and the remaining 9 months of the head sentence to be served concurrently with the other sentences.
Total effective term of 120 months', or 10 years', immediate imprisonment with eligibility for parole.
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