Chivers v The State of Western Australia - [2005] WASCA 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHIVERS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 97

CORAM: STEYTLER P
MCLURE JA
PULLIN JA

HEARD: 20 APRIL 2005

DELIVERED : 1 JUNE 2005

FILE NO/S: CCA 135 of 2004

BETWEEN: SYDNEY CHARLES CHIVERS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
File No  :IND ALB11 of 2004, IND ALB41 of 2004

Catchwords:

Appeal - Criminal law - Appeal against sentence - Failure of sentencing Judge to comply with cl 2(1) of Schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003 - Failure to allow reduction for plea of guilty or alternatively to state that he had done so - Failure to state minimum period to be served in custody

Legislation:

Crimes Act 1914 (Cth), s 21E

Sentencing Act 1995 (WA)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: A

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Ms L Petrusa & Ms G Colborne

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

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

AB v The Queen (1999) 198 CLR 111
Beard v The Queen [2003] WASCA 262
Bromfield v The Queen [2002] WASCA 333
Cameron v The Queen (2002) 209 CLR 339
Herbert v The Queen (2003) 27 WAR 330
Johnson v The Queen (2004) 205 ALR 346
Markarian v The Queen [2005] HCA 25
Miles v The Queen (1997) 17 WAR 518
Postiglione v The Queen (1997) 189 CLR 295
R v Assheton (2002) 132 A Crim R 237
R v Atholwood (1999) 109 A Crim R 465
R v Caplikas (2002) 134 A Crim R 544
R v Faithfull (2004) 142 A Crim R 554
R v Gallagher (1991) 23 NSWLR 220
R v Harman [1989] 1 Qd R 414
R v Hien Thi Nguyen [2004] SASC 405
R v LLK (2003) 146 A Crim R 1
R v McIntosh [2005] VSCA 106
R v Nagy [1992] 1 VR 637
R v Place (2002) 128 A Crim R 325
R v Sharma (2002) 54 NSWLR 300
R v Suarez‑Mejia (2002) 131 A Crim R 577
R v Thomson (2000) 49 NSWLR 383
R v Tierney (1990) 51 A Crim R 446
Stapleton v The Queen [2004] WASCA 130
The Amalgamated Clothing and Allied Trades Union of Australia v D E Arnall and Sons (1929) 43 CLR 29
Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96
Verschuren v The Queen (1996) 17 WAR 467
Wong v The Queen (2001) 207 CLR 584
Worthington v State of Western Australia [2005] WASCA 72

Case(s) also cited:

Casbolt v The State of Western Australia [2005] WASCA 41
Cooper v The Queen [2001] WASCA 379
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Pop (2000) 116 A Crim R 398
Thompson v The Queen (1992) 8 WAR 387

STEYTLER P: I have had the advantage of reading the judgment of Pullin JA. I agree with him that the applicant should have leave to appeal and that the appeal should be allowed.
Two indictments were brought against the applicant. The first, ALB 11 of 2004 ("first indictment"), was brought in January 2004. It charged the applicant with three counts of aggravated burglary (counts 1, 2 and 4) and one of attempted aggravated burglary (count 3). The applicant pleaded guilty to three of those counts (counts 1, 3 and 4) and those pleas were accepted by the State in satisfaction of the indictment. The second indictment, ALB 41 of 2004 ("second indictment"), was brought in July 2004. It charged the applicant with one count of aggravated burglary and one count of stealing a motor vehicle. The applicant pleaded guilty to both counts.
The offences the subject of counts 1, 3 and 4 on the first indictment were committed between 23 June 2003 and 26 June 2003.
As to count 1, the applicant and another man went to a car yard near Perth in order to burgle it. The applicant kicked in a glass panel on a door. The premises were then entered and the two men stole clothing and merchandise to the value of approximately $2800.
As to count 3, the applicant and a co‑offender drove a stolen car to a bottle shop in Albany, with the intention of burgling it. Once again, the applicant kicked in a glass panel on the front door but, because the bottle shop was protected by heavy metal mesh secured inside the door, he was unable to gain entry. That seems to have led to the commission of the offence the subject of count 4. The applicant and his co‑offender drove to another bottle shop with the intention of burgling it. Yet again, he smashed a glass panel of the front door by kicking it in. The shop was then entered and a quantity of alcohol and a complete display case containing cigarettes were stolen. Not long afterwards, the applicant was apprehended. He denied having committed any of these offences.
The offences the subject of the second indictment were committed on 23 January 2004.
As to count 1, in the early hours of the morning the applicant went to the home of a 42‑year‑old woman with a view to burgling it. He cut the flyscreen on the front lounge room window and lifted himself up to look inside the house. The applicant saw that the complainant was asleep in the lounge room at the time. He went to the rear of the house and, after removing the flyscreen to the kitchen window, opened that window and climbed into the house. He stole two mobile phones, a silver necklace, some fruit and a set of car keys. He then stole the complainant's car (the offence the subject of count 2), using the keys which he had taken from her home. He drove the car around for a while before dumping it in bushland. The rear‑vision mirror of the car had been pulled off the windscreen, causing the windscreen to shatter, and a hubcap was missing. The tread on both rear tyres had been completely worn. A car seat, clothing and six compact discs were taken from the vehicle. The applicant was arrested after one of his fingerprints was found at the complainant's house. Once again, he denied that he had committed these offences.
The applicant was 26 years old when he committed the offences the subject of the first indictment and 27 years old when he committed the offences the subject of the second indictment. He already had a lengthy criminal record encompassing, amongst other offences, a number of burglaries and car thefts. Alcohol had played a substantial role in his offending behaviour. However, a pre‑sentence report prepared in respect of the applicant suggested that numerous substance abuse programmes which he had been required to undergo had had little effect and that he appeared to lack the motivation to make any changes to his lifestyle. He had spent much of his adult life in custody or under community supervision. He suffers from bipolar affective disorder, but there is no suggestion that this contributed to his offending behaviour.
When the applicant came to be sentenced for these offences, he was already a sentenced prisoner. He had been convicted, on 11 March 2004, of a number of offences in respect of which he had been sentenced to a total of 15 months' imprisonment.
The sentencing Judge, when he came to sentence the applicant, sentenced him, in respect of the first indictment, to terms of imprisonment of 12 months on count 1, 6 months on count 3 and 10 months on count 4 (after reducing that sentence by 4 months to allow for time spent in custody). The terms were ordered to be served cumulatively upon each other and upon the terms of imprisonment which were then being served by the applicant. In respect of the second indictment, the sentencing Judge sentenced the applicant to terms of 3 years' imprisonment on count 1 and 12 months' imprisonment on count 2, with the second of those terms to be served concurrently with the first. The total term of 3 years' imprisonment imposed in respect of the second indictment was ordered to be served cumulatively upon the other terms to which I have referred. The applicant was consequently required to serve a total term of 5 years and 4 months' imprisonment (not including the time already spent in custody in respect of these offences) cumulatively upon the existing term of 15 months' imprisonment being served by him.

Grounds of appeal

There are effectively four grounds of appeal which, together, are said to have resulted in a total sentence of imprisonment which was manifestly excessive. It is necessary for me to consider only two of them, being grounds 1.1 and 1.2. They are that:
"1.1The learned sentencing Judge did not give the applicant a discount for the applicants [sic] plea of guilty.
1.2The learned sentencing Judge did not give to the applicant any reduction in the sentences imposed by reference to the sentencing principles prior to the amendments affected [sic] by [the] Sentencing Legislation Amendment and Repeal Act 2003 as he was required so to do."

Ground 1.2

I will deal with ground 1.2 first.
As has been pointed out by Pullin JA, it is plain that the sentencing process miscarried in the respect contended for.
Section 22 of the Sentencing Legislation Amendment and Repeal Act 2003 ("Repeal Act") provides that Sch 1 thereof ("transitional provisions") "has effect in relation to the amendments effected by this Division [Div 4 of the Repeal Act]". One of the amendments effected by Div 4 is the abolition of the former automatic remission of one third of a "parole term" or of a "fixed term" that is not a "prescribed term", as those expressions are defined in s 85 of the Sentencing Act 1995. That abolition was effected by s 20 of the Repeal Act, which repealed and replaced ss 93, 94 and 95 of the Sentencing Act. The repeal of the automatic remission led to the perceived need, by the legislature, for cl 2(1) of Sch 1 of the Repeal Act which, under the heading "Sentencing courts to take into account the effect of the sentencing amendments", provides that:
"(1)If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."
It is quite plain from what was said by the sentencing Judge that he did as cl 2(1) requires in respect of the sentences imposed in relation to the first indictment but not in respect of those imposed in relation to the second, seemingly because he was under the misapprehension that that clause applied only to offences committed before it came into operation. Consequently, the sentences imposed in respect of the second indictment cannot be allowed to stand.

Ground 1.1

As to ground 1.1, the sentencing Judge mentioned that the applicant had pleaded guilty to all five counts. However, he did not say, anywhere in the course of his sentencing remarks, that he had reduced the sentences imposed by him as a consequence of the pleas of guilty.
It has long been recognised that a plea of guilty by an offender is a mitigating factor and the earlier that it is made, the greater the mitigation. This has obtained statutory recognition in s 8(2) of the Sentencing Act 1995. Moreover, by s 8(4) of that Act if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
There is, as I have said, no indication in the sentencing Judge's sentencing remarks that the sentences imposed by him were reduced on account of the applicant's pleas of guilty and, indeed, it seems to me that they were not.
Consequently, ground 1.2 has been made out and this, of itself, justifies a grant of leave, the allowing of the appeal and the setting aside of each of the sentences imposed by the sentencing Judge.
Before leaving this ground I should say, as regard Pullin JA's comments with respect to the "instinctive synthesis" and "two‑tiered" sentencing approaches, that the state of authority since Wong v The Queen (2001) 207 CLR 584 has been somewhat unsatisfactory. Different approaches have been adopted in different States (although it is important to bear in mind that the statutory regimes in the different States are not uniform) and decisions in this State have not been entirely consistent in approach.
In New South Wales, five judges of the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383 (Spigelman CJ, Wood CJ at CL, Foster AJA, Groves and James JJ) had concluded (prior to Wong) that, while the instinctive synthesis approach was the correct general approach to sentencing, that did not necessarily mean that there was no element which could be taken out and treated separately, although the Court considered that such elements "ought be few in number and narrowly confined" (page 396 [57]). The Court went on to say (page 411 [112]) that the objective of encouraging early pleas would "best be served if sentencing judges adopt the practice of quantifying the discount and relating the quantification in some way to the timing of the plea". Then, in R v Sharma (2002) 54 NSWLR 300, another five judge court (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) concluded (page 305 [27]) that nothing which had been said by the High Court in Wong required the Court of Criminal Appeal in that State to reconsider what had relevantly been said in Thomson. They said that this was so even taking into account that three judges in Wong (Gaudron, Gummow and Hayne JJ) had disapproved of the "two stage" approach to sentencing and that a fourth High Court Judge, McHugh J, had expressed a similar opinion in AB v The Queen (1999) 198 CLR 111 at 121 ‑ 122 [15] - [18] and again in Cameron v The Queen (2002) 209 CLR 339 at 352 [41] (although neither party had criticised the two‑tiered approach which had been adopted in the last‑mentioned case).
A similar approach has been taken in South Australia, where a five judge court (Doyle CJ, Prior, Lander, Martin and Gray JJ) in R v Place (2002) 128 A Crim R 325 formed the opinion that nothing in Wong or in AB precluded the approach, favoured in that State, of nominating a specific reduction for a plea of guilty, as "part of a process in which all relevant factors are considered, but the effect of one factor on the sentence is quantified" (pages 338 ‑ 339 [38] and [39]): see also R v Caplikas (2002) 134 A Crim R 544 and R v LLK (2003) 146 A Crim R 1.
In Victoria the courts hold firm to the instinctive synthesis approach: see, for example, R v McIntosh [2005] VSCA 106 at [25] and [26], per Chernov JA, with whom Batt and Vincent JJA were in agreement. The position in Queensland and in Tasmania seems to be unclear (at least on my limited researches), but it does appear that the two‑stage approach has found a good deal of favour in the first mentioned of those states: see Colvin: "Sentencing Principles in the High Court and the PSA" (2003) 3(1) QVTLJJ 86 and the cases there cited (especially in fn 41) but cfR v Harman [1989] 1 Qd R 414 at 421.
In this State, as I have said, the decisions of the Court of Criminal Appeal, since Wong, do not reveal a uniformly consistent approach. However, the preponderance of authority seems to me to have been to the effect that, at least until the High Court had settled upon a definitive view in this respect, it should not be assumed that any degree of resort to a two‑stage approach to sentencing necessarily involves an error of principle or, if it does, that an error of that kind is such as will necessarily require that the sentence should be set aside: R v Suarez‑Mejia (2002) 131 A Crim R 577 at 588 ‑ 590 [50] to [55], per Parker J, and 581 [16], per Murray J (Miller J agreed with both); R v Assheton (2002) 132 A Crim R 237 at 244 [27]; and Beard v The Queen [2003] WASCA 262 at [31] to [33]; but cfBromfield v The Queen [2002] WASCA 333 at [79] to [80], per Roberts‑Smith J (with whom Sheppard AUJ agreed, Parker J contra at [2]).
Very recently, in Markarian v The Queen [2005] HCA 25 the High Court has revisited the issue. Gleeson CJ and Gummow, Hayne and Callinan JJ have there said (at [39]) that, following the decision of the Court in Wong, it cannot be doubted that sentencing courts "may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison". However, they went on to say (ibid):
"That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends."
A little earlier in their reasons (at [24]) their Honours had said, consistently with this, that neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentence has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities (as may be required, in some circumstances, by provisions such as s 21E of the Crimes Act 1914 (Cth)), of itself, reveals error.
It follows from this that, while instinctive synthesis (in the sense described in Markarian) is undoubtedly the preferred approach, the question whether a failure to adopt that approach amounts to error will depend upon the individual process of reasoning applied by the sentencing Judge to the circumstances of the case before him or her. A mathematical, and rigid, staged approach to sentencing, as opposed to a more generally considered approach, taking into account all relevant factors and arriving at one overall result which meets the justice of the case, will, in more complex cases, very probably amount to error. However, in a more simple case in which, for example, there is only one substantially mitigating factor, such as a plea of guilty, or where a quantified allowance is required by legislation, the fact of quantification of the allowance made will not, of itself, amount to error. It is unnecessary (and, in my opinion, inadvisable) to provide any greater guidance in this case, in which the point does not arise for decision and was not addressed in the course of submissions.

What Should Now Be Done?

There remains the question what should now be done with the applicant.
Offences of the kind committed by the applicant are prevalent and hence should be treated seriously by the courts. The seriousness with which the legislature regards them is evidenced by the fact that it saw fit, in 1996, to increase the maximum term in respect of aggravated burglary to one of 20 years' imprisonment and that in respect of attempted aggravated burglary to one of 10 years' imprisonment (although these maxima must now be seen in the light of the transitional provisions). The firming up of these sentences has been a consequence of community concern in respect of the prevalence of these offences: Herbert v The Queen (2003) 27 WAR 330, per Malcolm CJ at [2], Anderson J at [133] and Miller J at [168] to [171].
There is little to be said by way of mitigation in this case. The applicant, while still young, is at an age when he should have reached maturity of judgment. His criminal record shows an inability, or unwillingness, to reform his ways. This is also evident from the fact that he was on bail at the time of the commission of the offences the subject of the second indictment. While the applicant is, as I have said, entitled to

some credit in respect of his pleas of guilty, they were not made at the first opportunity and were made in circumstances in which the case against him was very strong.

In all of the circumstances, I would have imposed sentences of 2 years' imprisonment in respect of each of counts 1 and 4 on the first indictment and 12 months' imprisonment in respect of the attempted aggravated burglary charged in count 3 on that indictment. As to the second indictment, I would have imposed a term of 3 years' imprisonment in respect of the aggravated burglary (I view it more seriously because it occurred at a private home at which the occupant was present) and 12 months' imprisonment in respect of the car theft. That would give rise to a total term of 9 years' imprisonment. That term would be crushing, more particularly as it would have to be served cumulatively upon that already being served by the applicant. It would, in my opinion, plainly be more than a just and appropriate measure of the total criminality involved: see Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308, per McHugh J. Consequently, and in order to avoid offending the totality principle, I would have ordered that the sentences to be served in respect of the offences the subject of the first indictment should be served concurrently with each other, but cumulatively upon that already being served by the applicant and also cumulatively upon those imposed in respect of the second indictment. This would give rise to a total sentence of 6 years' imprisonment, over and above that already being served by the applicant.
However, because of the operation of the transitional provisions, each of the sentences which I would impose must be reduced by one third. The consequence of that is that, as regards the first indictment, the sentences must be reduced to sentences of 16 months', 8 months' and 16 months' imprisonment respectively, and, as regards the second indictment, the sentences must be reduced to sentences of 24 months' and 8 months' imprisonment respectively. Given that the first three sentences are to be served concurrently with each other, that gives rise to a total period of 4 years' imprisonment. However, because the applicant has already served approximately 4 months' imprisonment in respect of these offences, the overall term should be reduced by a period of 4 months, giving rise to a total term of 3 years and 8 months' imprisonment to be served cumulatively upon the term already being served by the applicant at the time of his sentencing. The applicant will remain eligible for parole.
MCLURE JA: I agree with Steytler P.

PULLIN JA: This is an application for leave to appeal against sentence by the applicant who was sentenced by Eaton DCJ in the District Court on 30 July 2004 as follows.

Indictment ALB11 of 2004

Count 1      Aggravated burglary       12 months' imprisonment
Count 3      Attempted burglary           6 months' imprisonment
Count 4      Aggravated burglary       10 months' imprisonment

These sentences were made cumulative upon each other. They were also made cumulative upon a parole term of 15 months imposed by a Magistrate in the Albany Court of Petty Sessions on 11 March 2004 which had been backdated to take account of time in custody. The applicant was made eligible for parole in relation to the sentences imposed on indictment ALB11 of 2004.

Indictment ALB41 of 2004

Count 1 Aggravated burglary 36 months' imprisonment
Count 2 Stealing a motor vehicle 12 months' imprisonment

These sentences were made concurrent with each other but cumulative on the sentences imposed on indictment ALB11 of 2004.
In relation to count 4 on ALB11 of 2004, his Honour said that he would reduce that sentence by 4 months to allow for time the applicant had spent in custody on remand in respect of that indictment.
The applicant contends that the sentence was manifestly excessive, but in fact raises by way of particulars what are said to be four manifest errors of law.

Failure to sentence in accordance with clause 2(1) of the transitional provisions in Schedule 1 in the Sentencing Legislation Amendment and Repeal Act 2003 (WA)

This clause requires a court proposing to impose a fixed term of imprisonment to impose a fixed term that is two‑thirds of the fixed term that would have been imposed had the "old provisions" been in operation at the time of sentencing. The expression "old provisions" is a reference to the law before the transitional provisions came into effect on 31 August 2003.
The learned sentencing Judge applied those provisions when sentencing in relation to indictment ALB11 of 2004 but he did not do so in relation to the offences under indictment ALB41 of 2004. It is quite apparent from what was said on transcript by his Honour that he thought that the transitional provisions only applied to offences which were committed before the transitional provisions came into operation but which came before the court for sentence after that date (those were the circumstances in relation to indictment ALB11). His Honour made it clear that he considered that the transitional provisions did not apply to offences committed after that date (which were the circumstances in the second indictment).
In my opinion his Honour was in error on this point. Clause 2(1) of Sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 ("Act") reads:
"If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two‑thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."
Clause 1(1) of Sch 1 defines "old provisions" as meaning:
"The Sentencing Act 1995, and the repealed Act, as they would have applied had the sentencing amendments not come into operation".
The "repealed Act" is defined as meaning the Sentence Administration Act 1995.
Schedule 1 has effect as a law by reason of s 22 and s 29 of the Sentencing Legislation Amendment and Repeal Act 2003. Section 22 reads:
"Schedule 1 has effect in relation to the amendments effected by this division."
The amendments effected by "this" division, ie Div 4 of Pt 2 of the Act concerns parole, eligibility for release and aggregation of parole terms. The amendments do not affect a Judge's power to imprison a person. This is found in s 39 of the Sentencing Act 1995.
Section 29 reads:
"1.The Sentence Administration Act 1995 is repealed.
2.Schedule 1 has effect in relation to the repeal effected by subsection 1.
3.Schedule 2 has effect."
It would have been simpler if either s 22 or s 29 of the Act had simply said that Sch 1 "has effect" as s 29 has said in relation to Sch 2. However it seems clear that s 22 and s 29 have that effect. I say this because, as I explained in Worthington v State of Western Australia [2005] WASCA 72 at [62] to [64], the combined effect of s 95 of the Sentencing Act 1995 and s 74 of the Sentence Administration Act 1995 provided for a "release" or "discharge" of one‑third of an imprisoned person's sentence. These provisions were both repealed in the Act. In the case of the Sentencing Act 1995, s 95 was repealed and new provisions inserted.
It follows in my opinion, that after the Act came into operation, a court which proposed or which proposes to sentence a person to imprisonment must comply with cl 2(1). This is so whether the offences were committed before or after the Act came into operation.
As a result, his Honour erred in failing to apply the requirements of cl 2(1) when sentencing the applicant in ALB41 of 2004. Clause 2(1) applies to all sentences imposed after 31 August 2003 no matter when the offence was committed.
Accordingly, his Honour should have reduced each of the sentences imposed on indictment 41 of 2004 by one‑third. Thus on count 1 the sentence should have been 24 months rather than 36 months and the sentence on count 2 should have been 8 months and not 12 months.
This ground plainly has merit.

No mention of a discount for the applicant's plea of guilty

His Honour mentioned that the applicant pleaded guilty but did not say that he was giving a discount for having done so. A plea of guilty is a mitigating factor warranting a reduction in the sentence which it would otherwise have imposed: R v Atholwood (1999) 109 A Crim R 465 at [9]. Section 8(4) of the Sentencing Act 1995 (WA) states that:
"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."
It is not an error of law not to specify precisely what the discount is. See Worthington at [41]. However, that leaves open the question about whether it would be an error to mention the extent of discount allowed. As will be seen, I consider that his Honour did err in not saying that because of the plea of guilty he was reducing the sentence he would otherwise have imposed. That means that I will have to say what I would impose by way of a proper sentence. To do that I must understand whether the law says I must not specify the discount allowed for the plea of guilty.
In Wong v The Queen (2001) 207 CLR 584 at [76] per Gaudron, Gummow and Hayne JJ said that it was "wrong in principle" to adopt a "two stage approach" to sentencing. This was explained by their Honours in that paragraph as follows:
"In R v Thomson (2000) 49 NSWLR 383 at 396‑411 Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two stage sentencing and favours the instinctive synthesis approach …"
Their Honours in that same paragraph gave an example of why discounting a sentence by a nominated amount for a plea of guilty ignores certain difficulties. They referred to what Gleeson CJ said in R v Gallagher (1991) 23 NSWLR 220 at 228:
"It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."
Their Honours continued in Wong at [77]:
"The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment."
Section 8 of the Sentencing Act 1995 (WA) requires a statement to be made by the court that the sentence is being reduced by the mitigating factor. The section does not oblige the court to state the extent of the discount.
The question then arises as to whether the statement by Gaudron, Gummow and Hayne JJ in Wong at [76] that it is "wrong in principle" to use the "two stage approach" means that a sentencing Judge errs in law if he or she does specify the discount given for a plea of guilty.
A Judge might be tempted to state the discount in a straightforward case where it was the most significant mitigating factor. It would be an unfortunate outcome if a discount could never be mentioned because it is of great value to the criminal justice system that offenders know that there is an advantage to be gained in pleading guilty and pleading guilty at an early stage. In cases decided before Wong and AB v The Queen (1999) 198 CLR 111, the Court of Criminal Appeal in this State said that a plea of guilty produces a reduction in sentence ranging "between 20‑25 per cent up to 30‑35 per cent depending upon the circumstances", Miles v The Queen (1997) 17 WAR 518 at 521. See also Verschuren v The Queen (1996) 17 WAR 467 at 469.
Cameron v The Queen (2002) 209 CLR 339 was decided after the decision in Wong. The practice in Western Australia of allowing a discount for a plea of guilty and stating the extent of the discount was referred to at [6] per Gaudron, Gummow and Callinan JJ, and by McHugh J at [43] without disapproval. In Cameron's case the sentencing Judge had stated that he was giving a 10 per cent discount for the plea of guilty. The argument in the Court of Criminal Appeal was whether it should have been 20‑25 per cent. The Court of Criminal Appeal held that the plea was not at the earliest opportunity and dismissed the appeal. The High Court ruled that the Court below erred in holding that the plea was not at the earliest opportunity and sent it back for further hearing and determination, without any suggestion that the debate about whether the discount should have been 10 per cent or 20‑25 per cent was contrary to Wong.
In Cameron's case only Kirby J referred to Wong's case and what had been said in AB v The Queen concerning the "instinctive synthesis" approach and the desirability and undesirability of specifying a "discount" in relation to a particular consideration. His Honour said at [70]:
"The latter view has been propounded in this court on a number of occasions by Hayne J (See, eg, AB v The Queen (1999) 198 CLR 111 at 156 [115]-[116]). His Honour has attracted the support of McHugh J (AB v The Queen (1999) 198 CLR 111 at 121‑122 [15]-[18]; see also the other cases referred to in the reasons of McHugh J at 351‑352 [41]) and perhaps others (cf Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Wong v The Queen (2001) 207 CLR 584 at 611‑612 [76]; cf at 621‑622 [101]). With respect, I remain of the opinion that where a 'discount' for a particular consideration relevant to sentencing is appropriate, it is desirable that the fact and measure of the discount should be expressly identified (AB v The Queen (1999) 198 CLR 111 at 148‑149 [99]‑[100]; Wong v The Queen (2001) 207 CLR 584 at 621‑622 [101]‑[103]; cf R v McDonnell [1997] 1 SCR 948 at 986‑988 [57]‑[61], cited by Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at 593 [11]. Unless this happens, there will be a danger that the lack of transparency, effectively concealed by judicial 'instinct', will render it impossible to know whether proper sentencing principles have been applied. Moreover, if the prisoner and the prisoner's legal advisers do not know the measure of the discount, it cannot be expected that pleas of guilty will be encouraged in proper cases, although this is in the public interest as I have shown. Knowing that such a discount will be made represents one purpose of such discounts. Unless it is known it may not be possible for an appellate court to compare the sentence imposed with other sentences for like offences or to check disputed questions of parity (cf R v Thomson (2000) 49 NSWLR 383 at 408 [99], citing R v Gallagher (1991) 23 NSWLR 220 at 227‑228)."
Kirby J suggested that the "difference that has emerged in this Court on this question may be one of semantics rather than of substance". He referred to what was said in R v Tierney (1990) 51 A Crim R 446 at 448; R v Nagy [1992] 1 VR 637 at 645‑646.
Since Cameron's case, intermediate courts have in passing sentence referred to Cameron's case and specified the value of a discount for a plea of guilty. See R v Hien Thi Nguyen [2004] SASC 405 at [54]; Stapleton v The Queen [2004] WASCA 130 at [39]. Gummow, Callinan and Heydon JJ in Johnson v The Queen (2004) 205 ALR 346 at [16] referred without disapproval to the fact that the range of discounts for fast‑track pleas of guilty in Western Australia was 20‑35 per cent.
Finally I should mention that what Gaudron, Gummow and Hayne JJ said in Wong's case at [76] is not a binding ratio decidendi. Gleeson CJ and Callinan J dissented as to the outcome. Kirby J expressed obiter views which were not sympathetic to the "synthesis" method. The view expressed by Gaudron, Gummow and Hayne JJ at [76] was therefore not the view of a majority of the Court and for that reason their view is not binding ratio. See The Amalgamated Clothing and Allied Trades Union of Australia v D E Arnall and Sons (1929) 43 CLR 29 at 37; Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96 at 111 ‑ 112; A MacAdam and J Pyke "Judicial Reasoning and the Doctrine of Precedent in Australia", (1998) Butterworths [10.39].
From that review of the authorities I would conclude that it is not an error of law for a sentencing Judge to mention the extent of the discount which has been given for a plea of guilty. In some cases a Judge may not wish to specify the extent of the discount, while in others, the sentencing Judge may consider that it is desirable to do so.
In summary therefore, the position is:
(a)a plea of guilty is a mitigating factor warranting a reduction in the sentence which would otherwise have been imposed;
(b)s 8(4) of the Sentencing Act requires a sentencing Judge reducing a sentence because of a plea of guilty to state the fact that he or she is reducing the sentence and to do so in open court;
(c)it is not an error of law for a Judge not to specify what the discount is for a plea of guilty;
(d)it is not an error of law to specify the extent of the discount which has been given for a plea of guilty.
Since dictating and settling the foregoing, the decision of the High Court in Markarian v The Queen [2005] HCA 25 has been published. Now a majority of the High Court has spoken on the subject and what is said by Gleeson CJ, Gummow, Hayne and Callinan JJ is binding ratio. Following a review of the debate about "instinctive synthesis" and the "sequential" or "staged" or "two‑tiered" approach, their Honours said at [39]:
"Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends."
That statement of the law does not require me to alter anything which I have set out above, although it has made unnecessary my discussion about whether the joint judgment in Wong was binding ratio or not.
In closing on this point, I should mention that when Gleeson CJ stated in R v Gallagher at 228 (and quoted above) that it may be artificial and illogical to separate out certain considerations, one being the consideration of willingness to cooperate with the authorities, this cannot apply in Western Australia. That is because s 8(5) of the Sentencing Act 1995 requires the sentencing court to state in open court the extent of any reduction for an undertaking to assist law enforcement authorities. This is recognised in Markarian's case at [24].

Turning to this case, his Honour did not comply with s 8(4) of the Sentencing Act.
His Honour made no mention of the fact that he reduced the sentences because of the pleas of guilty. That leads me to infer that his Honour did not do so. See Worthington.
This ground of appeal therefore has merit.

No statement as to the minimum time to be spent in custody

Section 34 of the Sentencing Act 1995 provides that if a court sentences an offender to a fixed term, the court is to state in open court "the minimum period that the offender, as a result of the sentence and the operation of this Act, will serve in custody in respect of the term or, if more than one term is imposed, in respect of the aggregate of the terms."
This means that if an offender is sentenced to a fixed term and a parole eligibility order is made, then the sentencing Judge must state the minimum term which will be served by the prisoner before he could be released on parole. The task of the court is to calculate when the prisoner would become eligible for parole pursuant to the provisions of the Sentencing Act and then inform the prisoner. This makes for transparency in sentencing and helps reduce the possibility of error in the calculation of the non‑parole period by those who have to administer sentences. The learned sentencing Judge failed to comply with s 34.
The State submits that s 34(2) is a procedural requirement. The State then refers to s 145 and submitted it was in some way relevant. Section 145 reads:
"(1) The failure of a court sentencing an offender to comply with a requirement of this Act does not invalidate a sentence imposed or an order made by it.
(2)Subsection (1) does not affect any right to appeal against a sentence or prevent a court from dealing with such an appeal."
In my opinion s 145 is not relevant in deciding whether his Honour erred or not. Section 145 simply ensures that the sentence is not invalid because of the failure to comply with the Act. It expressly states that errors may still be corrected on appeal.
In my opinion, his Honour made an error of law in not complying with s 34(2). If that had been the only error, then I would have concluded that there was no miscarriage of justice.
I would grant leave to appeal, allow the appeal in relation to the grounds which have merit, quash the sentences imposed by his Honour and re‑sentence the applicant.

Failure to apply the totality principle

The applicant contends that the learned sentencing Judge did not have regard to the totality principle. His Honour did expressly refer to the totality of the sentences and then made one of the sentences concurrent. I need say nothing more about this ground because the applicant is to be re‑sentenced.

Re‑sentencing

I do not propose to re‑state the facts in relation to these offences other than in general terms. I incorporate the statement of facts read to the court by the prosecuting counsel at the hearing before the learned sentencing Judge on 26 July 2004. No issue was taken to the facts as read to the court save for some points made by defence counsel at AB 16 which I accept.
The facts and the dates revealed in indictment ALB11 of 2004, show that the applicant went on a crime spree over two days. He committed the offence in count 1 on 23 June 2003 when he broke into a motor business and stole merchandise to the value of $2800.
The offence in count 3 was an attempted burglary on a bottle shop. He kicked in a glass panel but was not able to gain access. Damage was done to the tune of $300. Thereafter the applicant then drove to a shop, smashed a glass panel and stole a quantity of alcohol and cigarettes thereby committing the offence in count 4.
In relation to the second indictment ALB41 of 2004, count 1 was more serious. At 2.30 am he went to a residence, cut a flyscreen, saw inside a 42 year old female occupant, whereupon he went to the rear of the house, removed a flyscreen and a window, climbed into the house and stole two mobile phones, a silver necklace, a bunch of bananas, a set of keys and then left the premises through the rear door. I regard this as a much more serious offence because of the presence and the known presence of the female occupant. Count 2 relates to the stealing of the woman's vehicle using the keys he had stolen.
In my opinion imprisonment is the appropriate sentencing option in relation to all these offences bearing in mind the applicant's record of previous offences.
In relation to all of the offences I would take into account as a mitigating factor the plea of guilty in relation to all of the offences. A discount for an early plea of guilty should be allowed. However, in relation to the attempted burglary count on indictment ALB11, the applicant was recorded on a video surveillance camera and in that sense caught red‑handed. This doubtless led to the charges on the other two counts. I would not therefore allow a substantial discount in relation to the counts in relation to ALB11. In relation to the counts on the other indictment, I would allow a discount for the plea of guilty in the order of 25 per cent.
In relation to the first count on indictment ALB11 the learned sentencing Judge reduced the sentence which would otherwise have been imposed by 4 months to allow for the time already spent in custody. This is usually achieved by backdating, but in this case the situation is complicated because the applicant had been in custody on other offences. I will use the same method as the learned sentencing Judge in this case. Doing so will also allow easy comparison between the sentences originally imposed and the adjusted sentence after applying the transitional provisions. As will be seen, I propose making the other sentences on that count cumulative and so therefore this adjustment needs only be made to count 1.
I now set out in the table below the sentences I would impose in relation to each count.

ALB11

Count	Sentence under the old provisions	Application of clause 2(1) of transitional provisions
1	12 months	8 months
3	9 months	6 months
4	15 months	10 months

ALB41

Count	Sentence under the old provisions	Application of clause 2(1) of transitional provisions
1	27 months	18 months
2	9 months	6 months

Then it is necessary to consider the issue of totality and the one transaction working rule (R v Faithfull (2004) 142 A Crim R 554). The above sentences add up to 48 months. I consider that each of the counts in indictment ALB11 should be cumulative to reflect the fact that each offence was a separate event at a separate location. They were not part of one transaction even though counts 3 and 4 were committed on the same day. I would also not make them concurrent because that would produce a manifestly inadequate sentence.
As to indictment ALB41, I would make count 1 cumulative on the sentences in ALB11. I would make count 2 concurrent on count 1 in ALB41 partly because it was part of the same transaction and partly because of the application of the totality principle. That produces an aggregate sentence of 42 months.
I would make the applicant eligible for parole.
That is an aggregate sentence which is towards the lower end of an appropriate range and I see no reason for making the sentence concurrent on the 15 month sentence imposed by the Magistrate.
As to the aggregate 42 month sentence, the applicant will be eligible for parole after 21 months which means that the minimum period he must spend in custody on these sentences is 21 months. Added to that is the time he must spend in custody on the offences dealt with before the Magistrate.