Garlett v The State of Western Australia
[2016] WASCA 80
•19 MAY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GARLETT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 80
CORAM: BUSS JA
MAZZA JA
HEARD: 5 FEBRUARY 2016
DELIVERED : 19 MAY 2016
FILE NO/S: CACR 182 of 2015
BETWEEN: DAYLE KEVIN GARLETT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :PETRUSA DCJ
File No :IND 753 of 2015
Catchwords:
Criminal law - Indictable and s 32 offences committed in breach of an intensive supervision order imposed in the Magistrates Court - Total effective sentence 4 years 8 months' immediate imprisonment - Application for leave to appeal against sentence - Whether the learned sentencing judge failed to take into account or placed insufficient weight upon the salutary effect of the appellant's time spent in custody when considering the appellant's prospects of rehabilitation - Whether the total effective sentence breached the first and second limbs of the totality principle - Whether the individual sentences were, and the total effective sentence was, manifestly excessive
Legislation:
Criminal Code (WA), s 371A, s 378, s 401(2)(a), s 414
Misuse of Drugs Act 1981 (WA), s 6(2)
Road Traffic Act 1974 (WA), s 53(2A), s 60
Sentencing Act 1995 (WA), s 9AA, s 32, s 76(3)(b), s 81(3)(b), s 131
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P G Giudice
Respondent: No appearance
Solicitors:
Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Roffey v The State of Western Australia [2007] WASCA 246
Vagh v The State of Western Australia [2007] WASCA 17
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against sentences imposed by Petrusa DCJ in the District Court on 18 September 2015.
Procedural history
The appellant was convicted upon his pleas of guilty to a number of offences in an indictment dated 6 July 2015 (the indictment) and in a notice under s 32 of the Sentencing Act 1995 (WA) dated 18 September 2015 (the s 32 notice).
The indictable offences
The indictable offences were one count each of aggravated burglary of a house, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code) and stealing a motor vehicle, contrary to s 371A and s 378 of the Code. These offences carry a maximum penalty of 20 years' imprisonment and 7 years' imprisonment, respectively.These offences occurred in the one incident at Harrisdale on 25 February 2015.
The s 32 notice offences
The s 32 notice offences were committed between 13 November 2014 and 19 February 2015. They were, in the order that they appear in the s 32 notice, as follows:
| Charge number | Date of offence | Description of offence | Maximum penalty |
| GN 4799 of 2014 | 17 November 2014 | Possession of a prohibited drug (amphetamine)[1] | $2,000 fine, or 2 years' imprisonment, or both |
| GN 4800 of 2014 | 13 November 2014 | Stealing a motor vehicle and driving recklessly[2] | 8 years' imprisonment |
| GN 4801 of 2014 | 14 November 2014 | Stealing[3] | 7 years' imprisonment |
| GN 4802 of 2014 | 14 November 2014 | Failing to stop in circumstances of aggravation[4] | 2 years' imprisonment |
[1] Contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).
[2] Contrary to s 371A and s 378(2)(a) of the Code and s 60 of the Road Traffic Act1974 (WA).
[3] Contrary to s 378 of the Code.
[4] Contrary to s 53(2A) of the Road Traffic Act.
| Charge number | Date of offence | Description of offence | Maximum penalty |
| GN 4803 of 2014 | 14 November 2014 | Aggravated reckless driving[5] | 5 years' imprisonment (non-suspended term); disqualification from holding or obtaining a driver's licence for 2 years (first or second offence) or permanently (third or subsequent offence) |
| GN 4804 of 2014 | 14 November 2014 | Reckless driving[6] | $6,000 or 9 months' imprisonment, disqualification from holding or obtaining a driver's licence for 6 months (first offence); $9,000 or 9 months' imprisonment, disqualification from holding or obtaining a driver's licence for 12 months (second offence); $12,000 or 1 year's imprisonment, permanent disqualification from holding or obtaining a driver's licence (third or subsequent offence) |
| GN 4805 of 2014 | 17 November 2014 | Reckless driving[7] | |
| GN 1196 of 2015 | 19 February 2015 | Stealing[8] | 7 years' imprisonment |
| MI 2397 of 2015[9] | 14 January 2015 | Stealing a motor vehicle[10] | 7 years' imprisonment |
| MI 2398 of 2015[11] | 14 January 2015 | Failing to stop in circumstances of aggravation[12] | 2 years' imprisonment |
| FR 2558 of 2015 | 16 February 2015 | Aggravated burglary and committing an offence (stealing) in a dwelling[13] | 20 years' imprisonment |
| FR 2559 of 2015 | 16 February 2015 | Stealing[14] | 7 years' imprisonment |
[5] Contrary to s 60(1) of the Road Traffic Act.
[6] Contrary to s 60(1b) of the Road Traffic Act.
[7] Contrary to s 60(1b) of the Road Traffic Act.
[8] Contrary to s 378 of the Code.
[9] This charge is referred to as ‘MI 12397 of 2015’ on the s 32 notice; however, all references to this charge hereinafter are as “MI 2397 of 2015”.
[10] Contrary to s 371A and s 378 of the Code.
[11] This charge is referred to as ‘MI 12398 of 2015’ on the s 32 notice; however, all references to this charge hereinafter are as “MI 2398 of 2015”.
[12] Contrary to s 53(2A) of the Road Traffic Act.
[13] Contrary to s 401(2)(a) of the Code.
[14] Contrary to s 378 of the Code.
Sentencing in the District Court
All of the offences before Petrusa DCJ were committed in breach of a 12-month intensive supervision order originally imposed in the Perth Magistrates Court on 5 November 2014 (the ISO).[15] Consequently, it was necessary for her Honour to also resentence the appellant for these offences (ts 13 - 15).
[15] This order was imposed in respect of one count of aggravated burglary of a house, one count of burglary of a house and one count of receiving. The order was later amended on 19 February 2015 to, in effect, extend the order after the appellant committed an offence pursuant to s 131 of the Sentencing Act (ts 13 ‑ 14, 41).
Her Honour imposed the following sentences:
| Charge number | Description of offence | Final outcome |
| Count 1 on the indictment | Aggravated burglary and committing an offence (stealing) in a dwelling[16] | 1 year 6 months' imprisonment - cumulative (head sentence) |
| Count 2 on the indictment | Stealing a motor vehicle[17] | 1 year's imprisonment - concurrent |
| GN 4799 of 2014 | Possession of prohibited drug (amphetamine) | 1 month's imprisonment - concurrent; order for the destruction of drugs |
| GN 4800 of 2014 | Stealing a motor vehicle and driving recklessly | 1 year's imprisonment - concurrent |
| GN 4801 of 2014 | Stealing | 5 days' imprisonment - concurrent |
| GN 4802 of 2014 | Failing to stop in circumstances of aggravation | 3 months' imprisonment - concurrent; disqualified from holding or obtaining a driver's licence for 2 years |
| GN 4803 of 2014 | Aggravated reckless driving | 8 months' imprisonment - cumulative; disqualified from holding or obtaining a driver's licence for 3 years |
| GN 4804 of 2014 | Reckless driving | 6 months' imprisonment - concurrent; disqualified from holding or obtaining a driver's licence for 9 months |
| GN 4805 of 2014 | Reckless driving | 6 months' imprisonment - concurrent; disqualified from holding or obtaining a driver's licence for 9 months |
| FR 2558 of 2015 | Aggravated burglary and committing an offence (stealing) in a dwelling | 1 year's imprisonment - cumulative |
| FR 2559 of 2015 | Stealing | 4 months' imprisonment - concurrent |
| GN 1196 of 2015 | Stealing | 5 days' imprisonment - concurrent |
| MI 2397 of 2015 | Stealing a motor vehicle | 9 months' imprisonment - concurrent |
| MI 2398 of 2015 | Failing to stop in circumstances of aggravation | 3 months' imprisonment - concurrent; disqualified from holding or obtaining a driver's licence for 2 years |
| MI 5239 of 2014 | Receiving | (Breach of the ISO) 1 month's imprisonment - concurrent |
| MI 6733 of 2014 | Burglary and committing an offence (stealing) in a dwelling | (Breach of the ISO) 1 year's imprisonment - concurrent |
| MI 8494 of 2014 | Aggravated burglary and committing an offence (stealing) in a dwelling | (Breach of the ISO) 1 year 6 months' imprisonment - cumulative |
[16] Contrary to s 401(2)(a) of the Code.
[17] Contrary to s 371A and s 378 of the Code.
The total effective sentence imposed by her Honour was 4 years 8 months' immediate imprisonment, with eligibility for parole, to commence on 26 February 2015. In addition, her Honour disqualified the appellant from holding or obtaining a motor driver's licence for a total effective period of 3 years and ordered the destruction of the drugs the subject of GN 4799 of 2014.
Appeal to this court
This appeal concerns only the sentences of imprisonment.
The appellant relies upon three proposed grounds of appeal. As explained by his counsel in oral submissions, they are, in substance, as follows:
(a)Her Honour failed to take into account, or placed insufficient weight upon, the salutary effect of the time the appellant spent in custody from 26 February 2015 to 18 September 2015 when considering the appellant's prospects of rehabilitation (proposed ground 1; appeal ts 2 - 3).
(b)The total effective sentence infringed the first and second limbs of the totality principle (proposed grounds 2 and 3; appeal ts 3 - 5).
(c)Each of the individual sentences imposed were manifestly excessive, both in the length of the sentences and also on the basis that there should have been a suspension of all of the individual terms. Further, the total effective sentence itself was manifestly excessive in length and type (proposed ground 3; appeal ts 4 - 5).
For the reasons that follow, none of the proposed grounds of appeal have a reasonable prospect of succeeding, with the consequence that the appeal must be taken to have been dismissed.
Facts of the offending
The appellant, who was 21 years old when he was sentenced, is an indigenous man for whose life, as will be seen, AFL football has played an important part.
I will describe his offending in chronological order, beginning with the offences for which he was placed on the ISO, followed by the s 32 notice offences and then the indictable offences.
Facts of the offending the subject of the ISO
MI 5239 of 2014 (30 May 2014)
Between 3.10 pm and 10.00 pm on 30 May 2014, the appellant purchased a Panerai watch, two iPhones and a pair of Ray‑Ban sunglasses. On 2 June 2014, he was stopped whilst driving and his vehicle searched, at which time police located the items. The appellant was conveyed to Midland Police Station where he participated in an electronic record of interview, during which he made admissions to the offence and to having knowledge of the property having been stolen.
MI 6733 of 2014 (18 July 2014)
On the afternoon of 18 July 2014, the appellant entered a house at an address in Midvale, which he thought was unoccupied. At the time, the house was being cleaned. The appellant entered the house via an insecure rear door. He saw the cleaner's mobile telephone and purse in the kitchen area, and stole them. He then left the property via the front door. The appellant was arrested shortly after in possession of the mobile telephone and all of the credit cards that had been in the purse.
MI 8494 of 2014 (13 September 2014)
On the afternoon of 13 September 2014, the appellant and another drove to a house at an address in Greenmount. The appellant smashed a window and gained entry. He and his co‑offender stole a quantity of property to the value of $4,859. The incident was captured by CCTV cameras within the premises, from which the appellant was identified.
On 5 November 2014, after entering pleas of guilty, the appellant was placed on the ISO for these three offences. He failed to comply with the conditions of the ISO. According to a pre‑sentence report, after initially attending an appointment with a Community Corrections officer, he 'disengaged' from further attendance (pre-sentence report dated 18 March 2015 p 3). In addition, he relapsed into illicit substance use and failed to perform a large part of the community work component of the ISO.
Facts of the offending the subject of the s 32 notice
GN 4800 of 2014 (13 November 2014)
On 13 November 2014, some eight days after being placed on the ISO, the appellant and a relative noticed a set of keys in the front door of a house in Caversham. They took the keys and used one of them to drive away in a Honda Accord which was parked on the road in front of the house. The appellant and his co-offender kept the motor vehicle for four days before the appellant drove it to Geraldton. While in possession of the motor vehicle, the appellant was involved in a pursuit during which he drove recklessly.
GN 4801 of 2014, GN 4802 of 2014, GN 4803 of 2014 and GN 4804 of 2014 (14 November 2014)
On 14 November 2014, the appellant stole some petrol from a service station in Forrestfield to the value of $50.96 (GN 4801 of 2014). Shortly thereafter, the appellant and a relative were seen by police driving the stolen Honda Accord. Police activated their lights and sirens and attempted to intercept the motor vehicle. The appellant failed to stop. Instead, in a bid to escape pursuit by police, the appellant drove the motor vehicle recklessly on residential and major arterial roads, weaving in and out of heavy traffic, causing other drivers to take evasive action to avoid collisions. Police aborted the pursuit due to the manner in which the appellant was driving in the heavy traffic (GN 4802 of 2014, GN 4803 of 2014). The appellant later made admissions in an electronic record of interview to the offences the subject of charges GN 4801 of 2014 and GN 4802 of 2014.
Later that day, a digital speed camera recorded the appellant driving the stolen Honda Accord on Forrest Highway in the locality of Leschenault at an alleged speed of 161 km per hour. The speed limit in the area is 110 km per hour (GN 4804 of 2014).
GN 4805 of 2014 and GN 4799 of 2014 (17 November 2014)
At approximately 1.30 pm on 17 November 2014, the appellant was driving on Gingin Brook Road in the locality of Muckenburra. While doing so, he made a recording on his iPhone of him driving the stolen Honda Accord at speeds between 140 km and 200 km per hour. At one point, the camera was turned to face the appellant who yelled 'I want to keep going but there's a fucking car in front of me' (ts 19). Later, the appellant assisted police by providing the iPhone from which investigators were able to access the technical data depicting when and where the driving took place (GN 4805 of 2014).
At approximately 5.47 pm on the same day, the appellant was arrested by police in Geraldton for stealing the Honda Accord. During a search of the motor vehicle, police located a small clip seal bag containing 0.1 g of amphetamine. The appellant readily admitted, and later made admissions in an electronic record of interview, to its ownership (GN 4799 of 2014).
MI 2397 of 2015 and MI 2398 of 2015 (14 January 2015), FR 2258 of 2015 and FR 2259 of 2015 (16 February 2015) and GN 1196 of 2015 (19 February 2015)
While on bail for the offences committed between 13 and 17 November 2014, the appellant committed the following further offences:
(a)Sometime between 6 January 2015 and 12 January 2015, the appellant stole a Hyundai Getz using a spare key from a house in Victoria Park (MI 2397 of 2015).
(b)On 14 January 2015, the appellant was seen by police driving the Hyundai Getz along a road in Middle Swan. Police pursued the appellant who, in a bid to escape pursuit by police, drove the motor vehicle recklessly by attempting to cross a sandy median strip on a section of Roe Highway between Toodyay Road and Great Northern Highway. The Hyundai Getz became stuck on the median strip, at which point the appellant ran from the motor vehicle into a nearby bushland and housing estate. The appellant later made admissions in an electronic record of interview as to possessing the motor vehicle 'a day or so before stating he was chased by a detective car on Patterson Drive' (ts 20 - 21) (MI 2398 of 2015).
(c)On 16 February 2015, the appellant and another male went to a house in Spearwood. Upon ascertaining that no one was at home, one of them broke the glass panel of a rear door and they entered the house. In the process, the appellant cut his arm which bled heavily. Once inside, the appellant and his co‑offender stole property to the total value of approximately $2,500. The appellant's DNA was identified from blood on the curtains inside the house. The appellant later made a full confession to the offences in an electronic record of interview (FR 2558 of 2015, FR 2559 of 2015).
(d)On 19 February 2015, the appellant stole clothing from a Target store in Geraldton which, he admitted to police, he wanted to wear to court that day (GN 1196 of 2015).
Facts of the offending the subject of the indictment
Between 11.00 pm on 25 February 2015 and 6.00 am on 26 February 2015, the appellant was at a house in Harrisdale. At the time, the occupants of the house were asleep in the living room. The appellant gained entry to the house through the living room window (count 1). Once inside, he took from the kitchen bench some car keys, an iPhone as well as a wallet (and its contents), the total value of which was approximately $1,444. The appellant then disconnected the garage roller door from its power source and pulled it open. He then used the car keys to steal a Mitsubishi Outlander valued at approximately $10,200. The value of the contents of the motor vehicle, which included a baby seat, was approximately $698 (count 2).
On the same day, the appellant was located by police at the Department of Corrective Services office in Midland, arrested and conveyed to the Midland Detectives Office. He was remanded in custody from that day until he was sentenced by her Honour.
The appellant's personal circumstances
The appellant was raised by his mother and step‑father. He had a positive childhood. From a young age, it was clear that he was a very gifted AFL footballer. He represented Western Australia in underage competitions and was selected in the Under 18 All‑Australian team. After completing Year 12, he played for Swan Districts in the Western Australia Football League. In 2013, he was drafted by the Hawthorn Football Club and moved to Melbourne.
By the time he arrived in that city, the appellant had begun using methylamphetamine on weekends. He found the adjustment to life in Melbourne difficult and consumed illicit substances to cope. He began associating with undesirable elements. Ultimately, Hawthorn severed its ties with the appellant. He then returned to Western Australia where he faced adverse media publicity. Although his family were supportive of him, the appellant felt ashamed of himself. The appellant turned to illicit substances, including intravenous amphetamines. He also withdrew from his family and associated with peers who were predisposed to committing offences.
Psychological testing revealed that the appellant has a number of clinically significant elements found in individuals who have a pessimistic and disheartened view of life, and who may experience symptoms of depression.
As I have described, the appellant had a significant criminal history by the time he was sentenced by Petrusa DCJ.
With respect to his period in custody on remand between 26 February 2015 and 18 September 2015, defence counsel asserted in the appellant's plea in mitigation that he had gone 'cold turkey' from illicit substances in prison and, accordingly, was 'drug free' (ts 30). Defence counsel said that the period in custody had been a 'real wake‑up call' for his client (ts 31). A further pre‑sentence report stated that the appellant had 'submitted [sic] a strong willingness to comply with a further community disposition and … associated treatment …' (pre-sentence report dated 25 August 2015 p 6). However, the author of that report noted that, by reason of the appellant's failure to comply with the ISO, there remained a question as to whether the appellant was likely to utilise any such opportunities when faced with 'vulnerabilities in the community' (pre-sentence report dated 25 August 2015 p 6).
The sentencing remarks
No exception has been taken to the sentencing remarks, save for her Honour's treatment of the submissions made on behalf of the appellant concerning rehabilitation.
The learned sentencing judge acknowledged those submissions, but observed that similar statements had been made on behalf of the appellant on the occasions in which he was placed on intensive supervision orders, but without any positive change to his behaviour (ts 41).
Her Honour took into account as mitigating factors:
(a)the appellant's pleas of guilty, for which she gave a discount of 20% pursuant to s 9AA of the Sentencing Act (ts 42 ‑ 43);
(b)his personal circumstances (ts 39 ‑ 42);
(c)his age (ts 39); and
(d)the fact that he had the support of his family (ts 39 ‑ 40).
The learned sentencing judge was plainly aware of the potential effect that sentences of imprisonment could have on his ability to pursue a career as an AFL footballer. She formed the view that, regardless of whether the appellant was able to resume his career as a footballer, he still had the opportunity of living 'a happy and fulfilling life … because [he has had] the loving support of [his] family' (ts 42). Her Honour concluded that the appellant had ignored the previous opportunities given to him to rehabilitate himself. Despite these opportunities, the appellant continued to offend, use drugs and put the community at risk by his offending (ts 42). Her Honour paid particular regard to the burglary and driving offences. She considered the driving offences to be 'particularly serious given the complete disregard [the appellant] showed for the wellbeing of other people' (ts 43).
The learned sentencing judge expressly referred to the fact that the appellant had spent some time in custody prior to being sentenced by her (ts 45). Her Honour had regard to the totality principle (ts 43).
Her Honour considered whether the sentences of imprisonment should be suspended. She concluded that they should not in view of the appellant's 'complete disregard for the community and property and the fact that [he] had not one, but two opportunities[18] and in circumstances where [he] had the availability of support' (ts 44 ‑ 45).
[18] This was no doubt a reference to the outcomes of the appellant's appearances in the Magistrates Court on 5 November 2014 and 19 February 2015.
Appellate sentencing principles
The relevant appellate sentencing principles are uncontroversial and well established. This court cannot intervene simply because, had it been sentencing the appellant at first instance, it would have imposed a different sentence. The appellant must persuade the court that the sentencing judge made a material express or implied error. An allegation that a sentence is manifestly excessive, or that the total effective sentence infringes the totality principle, is an allegation of implied error. Accordingly, the appellant must show that the total effective sentence (proposed ground 2) or the individual sentences (proposed ground 3) were plainly unjust or unreasonable.
Disposition of the proposed grounds of appeal
It is convenient to deal first with the allegation of express error in proposed ground 1.
Proposed ground 1 - allegation of express error
The thrust of the argument put to this court by the appellant's counsel was that her Honour failed to take into account as a relevant sentencing factor the salutary effect of the appellant's remand in custody when considering his prospects of rehabilitation.
The learned sentencing judge did not fail to take the appellant's time in custody into account. To the contrary, her Honour expressly referred to this factor in giving reasons as to why the sentences she imposed ought not be suspended.
Further, it cannot be reasonably argued that her Honour failed to take this factor into account in considering defence counsel's submission that the time the appellant had spent on remand was a 'wake‑up call'. The point of the 'wake‑up call' submission was to reinforce the more fundamental submission that the appellant was determined to rehabilitate himself and should be given another chance by the imposition of a suspended sentence. It is clear from an examination of the sentencing remarks as a whole that her Honour gave close and careful consideration to this submission. She considered this submission by weighing it against similar statements made on behalf of the appellant in the past, noting his failure to comply with the terms and conditions of the intensive supervision orders that had been imposed (including by further serious reoffending) and the comments made in the pre‑sentence report. In the end, the submission was rejected. It was plainly open to her Honour to do so.
Insofar as it is said that her Honour gave insufficient weight to the time the appellant spent in custody on remand, an allegation of a weighting error - that is, a ground of appeal formulated to allege that a sentencing judge 'failed to give any or adequate weight' to matters in mitigation - is not, of itself, an independent ground of appeal: see Vagh v The State of Western Australia [2007] WASCA 17 [49]. Her Honour did not in substance fail to exercise the discretion entrusted to her: see Vagh [76]. Proposed ground 1 has no reasonable prospect of succeeding.
I now turn to the allegations of implied errors in proposed grounds 2 and 3.
Proposed grounds 2 and 3 - allegations of implied errors
In oral submissions to this court, counsel for the appellant clarified that, by proposed ground 2 and part[19] of proposed ground 3, he alleges that the total effective sentence of 4 years 8 months' immediate imprisonment infringed the first and second limbs of the totality principle; and by the balance[20] of proposed ground 3, he alleges that each of his individual sentences were, and the total effective sentence was, manifestly excessive. I will deal with the alleged infringement of the totality principle first.
Alleged infringement of the totality principle
[19] To the extent that proposed ground 3 asserts that the total effective sentence sentence infringed the first limb of the totality principle.
[20] To the extent that proposed ground 3 asserts that individual sentences imposed were manifestly excessive.
The submissions in support of proposed ground 2 and part of proposed ground 3 focused upon the appellant's age, prospects of rehabilitation, and that the total effective sentence had the effect of crushing the appellant's career as an AFL footballer.
I adopt McLure JA's statement of the totality principle in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26], where she said:
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).
The appellant's overall offending was numerous, serious and persistent. The indictable offences and the s 32 notice offences were all committed whilst he was subject to the ISO. The appellant was given two chances to comply with the ISO and within days of each of those proceedings, he committed the further offences. The offending shows that the appellant has little regard for the law. Personal deterrence was a relevant sentencing factor. So too was general deterrence. The imposition of a suspended term of imprisonment was inappropriate given the seriousness of the offending and, in any event, was not an available option given the appellant was subject to a mandatory 6-month term of immediate imprisonment on GN 4803 of 2014. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act. A term of immediate imprisonment was the only appropriate sentencing option.
The offending was mitigated by reason of the appellant's pleas of guilty, his age, the salutary effect of his period of custody on remand and the positive support he has from his family. Despite these factors, I do not regard the imposition of an immediate term of imprisonment of the length imposed as infringing the first limb of the totality principle. To the contrary, it bore, in my opinion, a proper relationship to the overall offending involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the appellant personally.
Nor is the total effective sentence crushing, as that word is to be understood. The appellant, as her Honour found, has the prospect of a useful life after release. That life may (or may not) involve the appellant playing AFL football. If he has lost the opportunity to play AFL football, the appellant himself must bear responsibility for that consequence. The total effective sentence does not infringe the second limb of the totality principle.
The allegation that the total effective sentence infringed the first and second limbs of the totality principle has no reasonable prospect of succeeding.
Alleged manifest excessiveness of the sentences imposed
The submissions in support of the balance of proposed ground 3 focussed on the length and type of each of the individual sentences imposed.
Counsel for the appellant drew particular attention to the sentence imposed on GN 4803 of 2014. Specifically, he alleged that the minimum term of 6 months' imprisonment should have been imposed. In support of this contention, counsel for the appellant submitted that the circumstances of the offence were 'near the bottom end of the scale of seriousness' because the offending was of a short duration, and some of the serious features of offences of this type were absent, including matters such as:
(a)excessive speed;
(b)running red lights;
(c)failing to abide by stop signs;
(d)driving against traffic;
(e)hopping traffic islands; or
(f)collisions (appellant's case p 4 [11]).
As set out in [5] of these reasons, the maximum penalty for an offence of aggravated reckless driving is 5 years' imprisonment.[21] A court sentencing a person for such an offence must sentence that person to a term of imprisonment of at least 6 months and cannot suspend the term of imprisonment.[22]
[21] Section 60(4) of the Road Traffic Act.
[22] Section 60(5) of the Road Traffic Act.
I described the facts of the offending the subject of GN 4803 of 2014 in [19] above. The appellant drove in a built‑up area in circumstances where he accelerated heavily and weaved in and out of heavy traffic, forcing other drivers to take evasive action to avoid collisions. The appellant's manner of driving was so dangerous that police had to abort the chase. It is an aggravating circumstance that at the time of the offence, the appellant was subject to an intensive supervision order. Moreover, he was driving in a stolen car, and had just stolen some petrol.
Just because the offence could have been more serious compared to other offences of its type does not establish that the sentence imposed was manifestly excessive.
There are no relevant sentencing decisions of this court with which to compare the sentence imposed on GN 4803 of 2014. Nevertheless, it is clear that the sentence imposed reflects a proper exercise of her Honour's sentencing discretion, bearing in mind the maximum penalty for the offence, the circumstances of the offending, and the appellant's personal circumstances.
The submission that the individual sentence imposed on GN 4803 of 2014 was manifestly excessive has no reasonable prospect of succeeding.
That leaves the balance of the appellant's submission; that is, that the individual sentences (other than the sentence imposed on GN 4803 of 2014), were, and the total effective sentence itself was, manifestly excessive, both in terms of the length and type of sentence imposed. In support of this submission, counsel for the appellant alleged that a 'conditional suspended term of imprisonment' might have been the more appropriate sentencing disposition in order to 'assist [the appellant] in his rehabilitation process' (appeal ts 5 ‑ 6). In his written submissions, counsel for the appellant referred to his time spent in custody; his early plea of guilty; the short duration of offending; his age; personal circumstances and the 'small window of opportunity for pursuing an AFL or other lucrative football career' (appellant's case p 5 [15]). No comparable cases were cited.
As I have said, the imposition of a suspended term of imprisonment was inappropriate given the seriousness of the offending and, in any event, was not an available sentencing option given the appellant was subject to a mandatory 6-month term of immediate imprisonment on GN 4803 of 2014. A term of immediate imprisonment was, in each case, the only appropriate sentencing option. As to the length of the individual sentences, they are all well within the bounds of a proper exercise of the sentencing discretion and cannot reasonably be said to be plainly unjust or unreasonable.
The allegation that each of the individual sentences were, and the total effective sentence was, manifestly excessive, has no reasonable prospect of succeeding.
Conclusion and orders
In my opinion, none of the grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused with the consequence that the appeal is taken to have been dismissed. The orders that I would make are:
1.Leave to appeal is refused on all grounds.
2.The appeal is dismissed.
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