Arnold, Shane Gregory v The Queen

[1996] FCA 1061

C A T C H W O R D S

APPEAL - against severity of sentence.

SENTENCE - guilty pleas recorded to numerous offences of burglary and related offences - whether head sentence of ten years imprisonment, composed of five consecutive sentences of two years imprisonment, manifestly excessive - totality principle - no error of law to impose short, consecutive sentences adding up to a substantial total, but preferable to set appropriate sentence for first count with the remainder cumulative upon the first sentence but concurrent with each other - sentence appropriate for worst category of offenders.

Crimes Act 1900

Murrell v. R (1984-1985) 58 ALR 203
Rumble v. The Queen (unreported, Federal Court of Australia, 21 June 1996)
Mill v. The Queen (1988) 166 CLR 59 at 62
Thomas, Principles of Sentencing, 2nd ed. (1979) at 56-57
TheQueen v. Smith and Shoesmith (1983) 32 SASR 219
Antonovic v. The Queen (unreported, Federal Court of Australia, 20 June 1995)

On Appeal from a Judge of the Supreme Court of the Australian Capital Territory

SHANE GREGORY ARNOLD v. THE QUEEN

No. ACT G29 of 1996

MILES, FOSTER and HIGGINS JJ.
CANBERRA
2 December 1996

IN THE FEDERAL COURT OF AUSTRALIA      )
AUSTRALIAN CAPITAL TERRITORY                 )
DISTRICT REGISTRY  )   No. ACT G29 of 1996
GENERAL DIVISION  )

On Appeal from a Judge of the Supreme
  Court of the Australian Capital Territory.

BETWEEN:  SHANE GREGORY ARNOLD
  Appellant

AND:             THE QUEEN
  Respondent

CORAM:                Miles, Foster and Higgins JJ.

PLACE:                  Canberra

DATE:  2 December 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed and the sentences be confirmed.

(Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA      )
AUSTRALIAN CAPITAL TERRITORY                 )
DISTRICT REGISTRY  )   No. ACT G29 of 1996
GENERAL DIVISION  )

On Appeal from a Judge of the Supreme
  Court of the Australian Capital Territory.

BETWEEN:  SHANE GREGORY ARNOLD
  Appellant

AND:             THE QUEEN
  Respondent

CORAM:                Miles, Foster and Higgins JJ.

PLACE:                  Canberra

DATE:  2 December 1996

REASONS FOR JUDGMENT

THE COURT:

This is an appeal against the severity of sentences imposed by the Supreme Court of the Australian Capital Territory (Gallop J.) on 9 April 1996.  The appellant pleaded guilty to five charges of burglary (as defined in s.102 of the Crimes Act 1900), three charges of stealing, and one of attempted stealing.  Each of the charges of stealing or attempted stealing was associated with one of the charges of burglary.  His Honour also took into account 40 offences set out in a document in accordance with the Sixth Schedule to the Crimes Act.  All those offences were, except for one offence
of damaging property, offences of burglary and theft.  The offence of burglary carries a maximum sentence of 14 years imprisonment and stealing or attempted stealing carries a maximum sentence of 10 years imprisonment.
           On each charge of burglary his Honour imposed consecutive sentences of two years imprisonment.  On the other charges his Honour imposed no sentence, considering the punishment to be embraced in the sentence for the corresponding charge of burglary.  The result was a head sentence of 10 years.  A period of five years was imposed before the expiration of which the appellant was not to be eligible for parole.  The facts were considered by his Honour to be in the worst category of offences of that nature.  They involved forcing entry into commercial premises at night, locating a safe or other likely repository of money and forcing the safe open by various means.  For this purpose the appellant used, on one occasion, a power drill and, on another occasion, an angle grinder.  The value of the money taken was about $43,000 and damage to a total value of some $10,000 was caused by his conduct.
           The offences were committed over a period of six months in the latter half of 1995 whilst the appellant was subject to a recognizance by virtue of which he had been released from prison in late 1994 after serving three months of a 12 month sentence partially suspended by the ACT Magistrates Court.  The most recent offence of burglary was committed whilst he was on bail for the other charges on the indictment.
           The appellant gave evidence, a course which does not appear to have ameliorated the serious situation in which he found himself.  He explained the
offences by an addiction to gambling.  His counsel conceded that such an explanation did not go to mitigation.  His Honour concluded that the appellant was “a menace to .... society”, a view that was entirely open to him.
           Mr. Pilkinton, who appeared for the appellant, put as his major submission that the sentence was manifestly excessive.  However, he sought to some extent to identify error on his Honour’s part by submitting that his Honour had misunderstood or failed to apply what is called “the totality principle”.  The error was said to have occurred because his Honour made no reference to the totality principle until immediately after imposing the sentence on each respective count.  His Honour then proceeded to make the following remarks:

“That makes 10 years.  I look at the totality principle and applying the principles stated in Mill v. R in the High Court, the reference to which is (1988) 166 CLR 59, I fix a non-parole period of five years.”

There is no doubt that there is a totality principle, and that it is recognized and applied in the Australian Capital Territory: see Murrell v. R (1984) 58 ALR 203, Rumble v. The Queen (unreported, Federal Court of Australia, 21 June 1996).
           The principle, however, has not been authoritatively defined.  In Mill v. The Queen (1988) 166 CLR 59 at 62, it was described by the High Court as “a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences”. The High Court approved a description of the principle set out in Thomas, Principles of Sentencing, 2nd ed. (1979) at 56-57.  That description refers to the effect of the principle, which is “to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’”.  The High Court added at 63:

“Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.  Where practicable, the former is to be preferred.”

Although the High Court did not expand upon the reasons for preferring the first approach, it would appear that it avoids the risk that, in a series of short consecutive sentences, no single sentence will appear on the face of it appropriate to the offence and circumstances relating to that particular offence.  For instance, it may be said that in the present case, where the sentence for each of the offences of burglary is for a period of two years imprisonment, no individual sentence is sufficiently heavy to be appropriate to the seriousness of that offence.  Hence, on the approach of the High Court, it would have been preferable to have imposed an appropriate sentence for the earliest offence, or the first offence on the indictment, and then to have imposed sentences cumulative upon the first sentence but concurrent with each other.
           The approach recommended by the High Court is consistent with the English practice described by Thomas (at p.57) which regards as generally inappropriate the imposition of a series of short, consecutive sentences adding up to a substantial total, and as usually preferable the ordering of
sentences to run concurrently rather than the reduction of the length of individual sentences to be served consecutively.  In South Australia the Court of Criminal Appeal has expressed the view that the sentence for the first in a series of offences should reflect the seriousness of that crime and that for the remainder the solution in particular cases may be to order partly concurrent sentences: TheQueen v. Smith and Shoesmith (1983) 32 SASR 219.
           However, it is no error of law to order a series of separate sentences to be served consecutively and if the aggregate term is not excessive, there is no point in an appeal court interfering with the sentencing judge’s decision simply in order to substitute concurrent sentences for cumulative sentences.  It may be appropriate here to observe that the respondent took no point in the appeal in relation to his Honour’s declining to impose any sentence at all for the offences of stealing and attempted stealing.
           A further submission made by Mr. Pilkinton was that the words in which his Honour expressed himself indicated that his Honour sought to apply the totality principle only to the non-parole period and not to the head sentence.  However, a consideration of his Honour’s judgment taken as a whole indicates that the principle was not overlooked, and bearing in mind the various combinations of individual sentences which might give effect to the totality principle, we do not consider that there was any error involved in its application.  In particular, we do not think that it was necessary for the sentencer to approach the matter by looking first at the global criminality involved in the commission of all the offences, then fixing a notional total period of imprisonment, and finally tailoring the individual sentences to fit the
aggregate.  The High Court in Mill approved a passage from Reg. v. Knight (1981) 26 SASR 573 at 576 in which the English case of Reg. v. Faulkner (1972) 56 Cr. App. R. 594 at 596 was quoted. In Reg. v. Faulkner it was said that:

“[A]t the end of the day, as one always must, one looks at the totality and asks whether it was too much.”

This was clearly the course his Honour adopted and it involved no misapplication of the totality principle. 
           We turn now to the other major and more fundamental submission by Mr. Pilkinton that the sentence was manifestly excessive.  For this purpose, reliance was placed upon two recent decisions of this Court, Antonovic v. The Queen (unreported, Federal Court of Australia, 20 June 1995) and Rumble v. The Queen, referred to above.  Each of those cases involved offenders with pleas of guilty to numerous offences of burglary, theft and associated offences. 
           In Antonovic, a 21 year old repeat offender with a drug addiction, had been sentenced by the Supreme Court to an aggregate of nine years imprisonment, made up of five cumulative sentences of periods ranging from three years to six months.  A non-parole period of six years had been fixed.  That sentence was reduced by this Court to an aggregate head sentence of six years with a non-parole period of three years.  The head sentence was made up of partly cumulative and partly concurrent sentences.
           In Rumble the offender was also a 21 year old with a prior history of offences and drug addiction.  He had been sentenced by the Supreme Court to seven terms of imprisonment of one year, one term of two years and another of six months, an aggregate of nine and a half years, together with a non-parole period of four years.  This Court, on appeal, referred to Antonovic as a guide to what was an appropriate sentence in the circumstances and upon that basis found the aggregate to be manifestly excessive.  The head sentence was reduced to six years and six months, but the non-parole period of four years was not interfered with.
           In our view, neither Antonovic nor Rumble should be regarded as authority for what might be regarded as a general sentencing tariff, whereby offenders sentenced for multiple offences of burglary and theft should receive sentences in the order of six or seven years and no more.  The Crimes Act has for many years been in the process of almost continuous revision by the legislature and in recent times the provisions relating to sentencing have been the subject of detailed amendment.  The maximum sentence for what the Crimes Act calls burglary (entering a building as a trespasser with intent to steal or commit a serious offence and including what used to be called house-breaking) has remained at 14 years for nearly a century.  The maximum sentence for stealing has been increased from five years to ten years imprisonment.  It is often the case that stealing is an aggravating feature of an offence of burglary, and that aggravating feature may be reflected in the sentence for burglary.  In many cases it may be appropriate to impose a sentence for the stealing which is to be served concurrently or partly concurrently with the sentence for the burglary particularly if the latter reflects the aggravating feature of stealing.  Indeed, in the present case the sentencing judge considered it inexpedient to impose any sentence at all for
the offences of stealing.  The point is that burglary, particularly in aggravated circumstances, is a serious offence and those who commit multiple burglaries must continue to expect heavy sentences.
           It was submitted that in the present case, as in Antonovic and Rumble, the appellant’s own propensity to crime places him at risk for the length of any period during which he may be at liberty on parole, the risk being that he will be liable to serve the balance of the aggregate head sentence should he re-offend.  This may well be so, but the consequences of the appellant re-offending whilst on parole at some future date are more appropriate for the consideration of a future sentencing judge, who will sentence on the basis of established facts.  It is not appropriate for this Court at this stage to endeavour to envisage what the future should hold for the appellant if he should re-offend during the currency of the sentence now under consideration and to try to mould that sentence accordingly.
           Whilst a total head sentence of ten years is very heavy, it cannot, in our view, be said to be outside the range of a sound discretionary judgment, having regard to the aggravating features of the case.  His Honour considered the case to be in the worst category of the offences charged and that past leniency extended to the appellant had not had the deterrent effect upon him that a substantial period in prison might yet have.  Clearly, that approach was open to his Honour and it would have been surprising if he had adopted any other approach.
           Nor, in our view, can it be said that the total of ten years imprisonment must inevitably have a crushing effect on the appellant.  Nothing in the
evidence suggests any particular vulnerability on the part of the appellant.  Sentences of comparable magnitude have been imposed upon other offenders in the Australian Capital Territory and in other parts of Australia.

The objectives of sentencing as expressed in sub-s.429(2) of the Crimes Act, namely to facilitate the offender’s rehabilitation into society and to encourage the offender to make appropriate reparation to the victim, are required to be met “as far as practicable”.  Reparation was out of the question in the circumstances of this case.  Clearly his Honour saw that the objective of rehabilitation could be achieved only within the context of a lengthy period of supervision on parole after serving a substantial period in custody, with the total sentence providing a deterrent not only to the appellant but also to other persons.  It was appropriate also that the totality of the sentence should mark the seriousness with which the community regards repeated acts of burglary.  We would only add that there is nothing in this approach which involves a breach of the provisions of s.429B of the Crimes Act, which prohibits a court taking the prevalence of the offence into account for the purpose of sentence.
           The appeal is dismissed and the sentences confirmed.

I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:2 December 1996

Appearances

Counsel for the appellant:              Mr. S.H. Pilkinton
Solicitors for the appellant:             Porter Pilkinton & Bradfield

Counsel for the respondent:          Mr. T. Buddin, SC
Solicitors for the respondent:         ACT Director of Public Prosecutions

Date of hearing:  24 October 1996

Date of judgment:  2 December 1996