Hapke v The State of Western Australia - [2006] WASCA 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAPKE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 188

CORAM: STEYTLER P
ROBERTS-SMITH JA
MURRAY AJA

HEARD: 4 MAY 2006

DELIVERED : 25 SEPTEMBER 2006

FILE NO/S: CACR 131 of 2005

BETWEEN: JASON GUY HAPKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
File No  :INS 123 of 2003
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :H H JACKSON DCJ
File No  :IND 1352 of 2004
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MILLER J
File No  :INS 87 of 2003

Catchwords:

Appeal - Criminal law and procedure - Sentence - Totality principle - Parity - Proportionality - Aggregation of sentences for multiple offences - Sentences imposed by different Judges on different occasions - Whether aggregate period of imprisonment "crushing" - Totality - Whether appropriate to have regard to what equivalent period of imprisonment would have been before 31August 2003

Legislation:

Criminal Appeals Act 2004 (WA), s 41(2)
Prisons Act 1981 (WA), s 29

Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2(1) of Sch 1, cl 2(4) of Sch 1

Result:

(1) Leave to appeal the sentences imposed by Jenkins J on 11 August 2004 refused
(2) Leave to appeal the sentences imposed by H H Jackson DCJ on 8 November 2004 granted; appeal allowed
(3) Leave to appeal the sentences imposed by Miller J on 17 December 2004 refused - sentence varied pursuant to s 41(2) Criminal Appeals Act 2004 (WA)

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr K P Bates

Solicitors:

Appellant: Thames Legal
Respondent: State Director of Public Prosecutions

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

Cabassi v The Queen [2000] WASCA 305
Capper (1993) 69 A Crim R 64
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 79 ALJR 1048
Mill v The Queen (1988) 166 CLR 58
Miller v The State of Western Australia [2006] WASCA 163
Pearce v The Queen (1998) 194 CLR 610
R v Crofts [1999] 1 Qd R 386
R v Olbrich (1999) 199 CLR 270
R v Tisalandis (1982) 2 NSWLR 430
R v Yates [1985] VR 41
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Wong v The Queen (2001) 207 CLR 584
Worthington v Western Australia (2005) 152 A Crim R 585

Case(s) also cited:

Everett (1994) 73 A Crim R 550
Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998
Hart v The Queen [2003] WASCA 265
Heryadi v The Queen (1998) 19 WAR 383
Kilner v The Queen [1999] WASCA 189
Lowndes v The Queen (1999) 195 CLR 655
Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997
Postiglione v The Queen (1997) 189 CLR 295
Puls v The Queen [2000] WASCA 11
R v White [2002] WASCA 112
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Ward (1999) 109 A Crim R 159

STEYTLER P: I agree with Roberts-Smith JA. However, I wish to add some brief comments with respect to one aspect of the totality issue, albeit no concern arises in that respect in this case.
The totality principle requires that, after a number of fixed terms of imprisonment are imposed, and after consideration has been given to questions of cumulation or concurrency, the sentencing Judge should have a last look at the total sentence imposed so as to ensure that the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved: see, for example, R v Crofts [1999] 1 Qd R 386.
At the time of imposing fixed terms it is, of course, necessary for the sentencing Judge to have regard for the provisions of cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("transitional provisions") which provides that:
"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."
The expression "old provisions" is defined in cl 1(1) of the transitional provisions, in effect, to mean the former sentencing regime prior to the abolition of the remission of one‑third that had formerly been provided for by s 29 of the Prisons Act 1981 (WA) (the relevant legislative history appears from the judgment of Pullin JA in Worthington v Western Australia (2005) 152 A Crim R 585).
Consequently, by the time at which the sentencing Judge comes to consider the issue of totality, each of the fixed terms imposed will ordinarily have been reduced by one‑third, resulting in a total sentence which would, of course, be one‑third less than that which would have been arrived at were it not for the operation of the transitional provisions. However, it remains important that, when considering totality, a sentencing judge does not lose sight of the fact that, notwithstanding that each of the sentences making up the total has been reduced by one‑third, the total so arrived at should not be more than two‑thirds of the total sentence that would have been regarded as a just and appropriate measure for the total criminality involved were it not for the operation of the transitional provisions (see, in this respect, Miller v The State of Western Australia [2006] WASCA 163). The obvious intention of the transitional provisions was, of course, that the abolition of the remissions formerly

provided for by s 29 of the Prisons Act should not result in sentenced prisoners spending more time in gaol than would have been the case if those remissions had not been abolished: see the extracts from the second reading speech in respect of the Sentencing Legislation Amendment and Repeal Bill 2003 and the explanatory notes to that Bill, quoted in Worthington at [68] ‑ [71].

Of course, this does not mean that, on each occasion upon which a totality issue arises in the course of sentencing, a sentencing judge must make it plain that this obvious consideration has not been overlooked or that there must always be some expressed notional reconversion of the sentence (to that which would have been imposed under the old provisions) at the time of considering totality. Nor does it mean that the statutory reduction in each of the fixed terms imposed should only ever be made at the time of considering totality (and I do not understand Miller to have suggested otherwise). All it means is that this consideration should be kept in mind by the sentencing Judge when considering the issue of totality.
In time, of course, the new sentencing regime will become an established practice, making it unnecessary to make any mental calculations. It was no doubt for that reason that cl 2(4) of the transitional provisions provided that a court does not have to apply cl 2 if, in sentencing an offender, "the court follows the practice of the court as established in accordance with the new provisions and this clause".
ROBERTS-SMITH JA: This matter involves a single application for leave to appeal against sentences imposed on the appellant by different Judges on different occasions.
On 8 September 2005, McLure JA granted an extension of time and referred the application for leave to this Court for hearing together with the appeal if leave were to be granted.
At the request of the court at the hearing of the application on 4 May 2006, counsel subsequently provided an agreed schedule of head sentences relating to the application. The details are set out below:

Date	Judge	Offences	Total Sentence	Finite Sentence
1) 02.12.03	Templeman J	2 x steal motor vehicle 3 x aggravated burglary	4 years imprisonment backdated to commence 7 October 2002, with parole eligibility	07.10.06
2) 11.08.04	Jenkins J	1 x steal motor 1 x aggravated armed	5 yrs 10 mths imprisonment, to commence 11 August 2004, with parole eligibility	11.06.10
3) 08.11.04	DCJ Jackson	1 x escape lawful custody 1 x steal motor vehicle 1 x stealing (s 32 notice)	2 yrs imprisonment, cumulative on present sentences, with no parole eligibility	11.06.12
4) 17.12.04	Miller J	1 x steal motor vehicle 1 x aggravated armed robbery	5 yrs 4 mths imprisonment, to commence 1 June 2008, with parole eligibility	01.10.13

The application is in respect of the sentences imposed by Jenkins J, Jackson DCJ and Miller J.
On 2 December 2003 the appellant pleaded guilty before Templeman J to a number of offences charged on indictment number 123 of 2003. He pleaded not guilty to other offences charged on that indictment and they were sent for trial. Templeman J sentenced the appellant to a total of 4 years' imprisonment, backdated to 7 October 2002, with eligibility for parole. The offences were stealing a motor vehicle, aggravated burglary of the Landsdale Gardens General Store, stealing a motor cycle, aggravated burglary of a Bunnings Warehouse and aggravated burglary of a gun shop.
On 27 May 2004 the appellant pleaded guilty before his scheduled trial, to the outstanding charges on indictment number 123 of 2003. On 11 August 2004 Jenkins J sentenced him to a total of 5 years 10 months' imprisonment for aggravated armed robbery of the Nedlands ANZ Bank and stealing a motor vehicle. Her Honour imposed a sentence of 5 years 4 months' imprisonment for the armed robbery and 16 months' imprisonment for the stealing of the motor vehicle. Her Honour ordered these two sentences to be served partly concurrently and partly cumulatively with each other and with the aggregate sentence imposed by Templeman J on 2 December 2003 and that the armed robbery sentence would commence after the appellant had served 6 months of the sentence for the stealing of the motor vehicle, which was to commence that day, namely 11 August 2004.
The effect of the sentences imposed by Jenkins J meant the appellant had to serve a total head sentence of 5 years 10 months from that date, being in effect an addition of 3 years 8 months to the sentence imposed by Templeman J.
The aggregate sentence of 2 years' imprisonment imposed by Jackson DCJ on 8 November 2004 was ordered to be served cumulatively on the sentences the appellant was then serving. On the date of his sentencing in the District Court therefore, the appellant was facing an effective overall head sentence of 9 years 8 months' imprisonment.
Finally, the aggregate sentence of 5 years 4 months' imprisonment imposed by Miller J on 17 December 2004 was ordered to commence on 1 June 2008 and so was partly cumulative and partly concurrent with the sentences then being served by the appellant. The effect at that time was to leave the appellant with an aggregate head sentence of 11 years' imprisonment from 17 December 2004.
The grounds of appeal are complicated and it is as well that I set them out in full. They are:
"1.•   At the time of sentence the applicant was serving a term of imprisonment imposed 2 December 2003 (for three counts of stealing a motor vehicle and three counts of aggravated burglary) for which he was sentenced to a total of 4 years imprisonment, with parole eligibility. That sentence was backdated to 7 October 2002, when the applicant went into custody. He therefore became eligible for parole on 7 October 2004.
•Bearing in mind the totality principal [sic] and the requirement to avoid a sentence of imprisonment that would be crushing, the Learned Sentencing Judge fell into error when she ordered the sentences imposed by her on 11 August 2004 be served only partly concurrently with each other.
•The two sentences should have been totally concurrent with one another, which would have resulted in a total sentence of 5 years 4 months, not 5 years 10 months imprisonment.
•Further, when the applicant was sentenced on 11 August 2004 the learned sentencing judge gave little or no weight to the issue of parity when she sentenced the applicant to a term of imprisonment for 16 months regarding the offence of stealing a motor vehicle when his co‑offender (Ripper) had previously been sentenced for the same offence to an intensive supervision order.
2.•   On 8 November 2004 the Applicant pleaded guilty and was sentenced to 2 years imprisonment, cumulative on his (then) current sentence of imprisonment, regarding escape from custody.
•The Applicant's escape from custody related to the escape on 10 June 2004 of a number of detainees from the detention area at the Supreme Court, Perth.
•The Applicant, in company with others, approached the driver of a motor vehicle, forced the driver out of the vehicle and seven escapees including the applicant, got into that vehicle.
•Two other escapees car‑jacked a Land Rover 4‑wheel drive, having forcibly ejected the sole male occupant from that vehicle. Those escapees were Laurie John Dodd ('Dodd') and Brett Colin Pezzino ('Pezzino').
•Shortly thereafter the Commodore and the Land Rover stopped and the Applicant and Guy Stephen Fullgrabe ('Fullgrabe') got out of the commodore and into the Land Rover (at that stage occupied by Dodd and Pezzino) and drove off.
•Shortly thereafter the occupants of the Land Rover, including the Applicant, were captured.
•   On 8 November 2004 the Applicant, as stated above, was sentenced to a term of 2 years imprisonment concerning escape from lawful custody.
•On 4 November 2004 Fullgrabe was sentenced by DCJ Jackson to a term of 2 years concerning his escape from lawful custody.
•However, on 29 October 2004, concerning the same factual scenario, Pezzino was sentenced to 3 months imprisonment in the District Court, Perth for escape from legal custody.
•Further, on 22 November 2004, concerning the same factual scenario Dodd was sentenced in the Perth Court of Petty Sessions to a term of imprisonment of 12 months and 1 day. As at the date of that sentence Dodd had two previous convictions for escape legal custody, dated 4 February 1994 & 17 October 2000.
•The disparity in the sentences imposed upon Dodd and Pezzino on the one hand and the Applicant on the other are such as to provide a sense of grievance on the part of the Applicant and is sufficient such as to amount to the appearance of injustice regarding the sentence imposed upon the Applicant,
3.•   In the Supreme Court at Perth on 17 December 2004 the Applicant was sentenced to a total term of imprisonment of 5 years 4 months for one count of aggravated armed robbery and one count of stealing a motor vehicle.
•At the time of sentence the Applicant was serving terms of imprisonment (imposed 2 December 2003 and 11 August 2004) and, as a consequence of these earlier sentences, his earliest eligible date for release as at the date of sentence was 10 June 2010.
•The sentence of 5 years 4 months was ordered by the learned sentencing judge to be served partly concurrent with and partly cumulative to those being served at the time of sentence.
•The result of such is that the Applicant's earliest eligible date for release is now 30 September 2011, and his earliest date for release is 30 September 2013.
•Bearing in mind the Applicant's age and antecedents, the effect of the sentence imposed on 17 December 2004 was crushing in its effect and offended against the totality principle."
It will be apparent that ground 1 relates to the sentences imposed by Jenkins J on 11 August 2004, ground 2 relates to the sentences imposed by Jackson DCJ on 8 November 2004 and ground 3 relates to the sentences imposed in the Supreme Court by Miller J on 17 December 2004.
I shall deal with them separately.

11 August 2004 - Jenkins J

At the outset of her sentencing remarks, her Honour noted that in the week prior to the appellant's scheduled trial on the offences of aggravated armed robbery and stealing a motor vehicle, he indicated that he would facilitate that trial by pleading guilty to the stealing a motor vehicle charge and that he would not dispute that he was one of the offenders in the bank and that his defence was one of compulsion. As her Honour noted, despite that advice, the trial that was then planned would still have involved all of the State's witnesses having to give evidence. As it happened, the starting date for the appellant's trial was delayed by one day because another trial was running over. The following day the appellant pleaded guilty to both charges. Thus, his pleas of guilty were entered at the last opportunity. Her Honour was told by the appellant's counsel that was because the appellant changed his instructions with respect to what happened on the day of the robbery. As her Honour pointed out, those facts would have been known to the appellant from the time of his arrest and his failure to disclose them to his counsel was not consistent with remorse. Her Honour specifically told the appellant he would not be punished for that, but the credit he would receive for his pleas would not be as significant as it would have been had they been entered earlier. Furthermore, after the appellant pleaded guilty, certain matters were put forward in mitigation which her Honour indicated she would not accept without evidence. As a result, evidence was called before her Honour on the sentencing issues in dispute. Her Honour did not accept all of the appellant's evidence given on oath. She accordingly observed that although normally a discount is given for even a late plea because it is believed that any plea of guilty is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice, but in the appellant's case she had seen little to indicate that his pleas were indicative of such matters. She repeated that nonetheless, she would be giving the appellant some credit for his pleas of guilty. She then turned to the circumstances of the offences themselves.
In September 2002 a co‑offender who the appellant refused to identify ("the third offender") planned to commit a robbery and asked another co‑offender, Ms Katrina Ripper, his then girlfriend, to obtain someone who may be able to steal a motor vehicle for the purpose of doing so. Ms Ripper approached the appellant who was an acquaintance of hers at the time. On or about 24 September 2002, the appellant met with Ms Ripper and the third offender and agreed to participate.
On that day he accordingly went to a car park at a medical centre in Bagot Road, Subiaco where he stole a Holden Commodore sedan by forcing the driver's door locking mechanism and manipulating the ignition barrel. He later drove the Commodore to a property at Wanneroo which was the property of another acquaintance of Ms Ripper and the third offender. The vehicle was garaged at that property overnight. On the following day the third offender picked up the appellant and took him to the Wanneroo property. After some discussion, the appellant assisted to start the vehicle (which had not been working prior to his arrival) and then drove it to the third offender's unit at South Perth. He was followed by Ms Ripper and the third offender in another vehicle. In the South Perth unit the three of them discussed the proposed armed robbery.
Shortly afterwards, the appellant drove the stolen vehicle to Nedlands, following the third offender and Ms Ripper in the third offender's vehicle. At Nedlands the appellant parked the stolen car some streets away from the ANZ Bank and got into the third offender's vehicle. They then drove around the precincts of the bank a number of times and the third offender told the appellant and Ms Ripper what was expected of them in robbing the bank.

Whilst in the vehicle the third offender gave the appellant a sawn‑off double‑barrelled shotgun and Ms Ripper, a loaded small pistol. He then drove his vehicle back to where the stolen car had been parked. The appellant and Ms Ripper got out of the third offender's vehicle and the two of them went to the ANZ Bank at Nedlands in the stolen vehicle.
Whilst in the vehicle the appellant and Ms Ripper dressed themselves in clothing and gloves intended to disguise their identities. They then got out of the vehicle with the firearms and went into the bank, Ms Ripper going first, followed by the appellant.
Whilst Ms Ripper was with one of the bank tellers at the front of the bank, waving the gun around at the teller, the appellant went to the rear of the bank where the counters were. He jumped on the counter and pointed the shotgun at staff and demanded they fill his bag with money, which they did.
There was a lot of swearing, yelling and threats. Ms Ripper remained with the teller at the front of the bank throughout the robbery. For the whole time, the appellant was at the rear of the bank, where he obtained most of the money. After a short while Ms Ripper yelled something like "It's time" and the two of them left through the front door and went to the stolen car.
There was some difficulty leaving the parking space and Ms Ripper pointed her gun at one of the bystanders who was blocking the vehicle's exit. She told him to move away and threatened him. The bystander did move and the two of them were then able to escape in the car. The appellant then drove the car to a location some streets away in Williams Road where the third offender was waiting for them in his vehicle. They then abandoned the stolen Commodore and the appellant and Ms Ripper got into the third offender's car after which they drove to the home of one of the appellant's acquaintances. Once there, the appellant and Ms Ripper removed their clothing which was left with the appellant to dispose of, the third offender instructing him to get rid of them. In the meantime, the guns were returned to the third offender.
The third offender and Ms Ripper then left with virtually all of the money, leaving the appellant with only some hundreds of dollars.
A total of $8600 was stolen during the robbery, none of which was recovered. It seems the third offender kept most of it. Ms Ripper said she did not receive any of it. The stolen vehicle was later recovered.
During the course of the plea in mitigation, it was submitted that the appellant had tried to withdraw from the robbery once on the scene at Nedlands because he understood that he was to drive the getaway car and was not going to be involved in actually going into the bank. It was put to her Honour by the appellant's counsel that it was only when the appellant arrived at Nedlands that he was told he had to go into the bank. Counsel said the appellant did not want to go into the bank, first of all because he had an injury, and secondly, because he did not want to be involved in the offence in any event. It was put to her Honour that at that point the appellant was forced to participate in the armed robbery. It was said that the appellant actually got out of the car and tried to walk away and hide behind a tree and it was only because the third offender and Ms Ripper followed him in their car and threatened him at gunpoint that he eventually agreed to participate in the armed robbery.
These were the matters which were the subject of evidence at the sentencing hearing. In the course of that hearing, the appellant gave sworn evidence. The State called Ms Ripper. At the request of counsel for the appellant, her Honour also had regard to the police video record of interview with Ms Ripper and read the pre‑sentence report prepared for the appellant's sentencing at the end of 2003 before Templeman J. Jenkins J made a number of findings of fact for which she gave comprehensive reasons. It is sufficient to say that her findings were made in accordance with the principles set out by the High Court in R v Olbrich (1999) 199 CLR 270, 281.
Her Honour concluded that she was not satisfied beyond reasonable doubt that the appellant knew the shotgun was loaded, but nor was she satisfied on the balance of probabilities that he positively believed it to be unloaded. She therefore sentenced him on the basis that the shotgun the appellant used may have been loaded, but if it was, she was not satisfied he knew it was loaded. However, on the basis of the appellant's own evidence, it was clear that he knew the handgun Ms Ripper had was loaded.
Her Honour said she did not believe the appellant was telling her the truth about a number of matters in his evidence and was not prepared to accept what the appellant said about what happened when the offenders arrived outside the bank. Her Honour gave detailed reasons for preferring the evidence of Ms Ripper to that of the appellant. She found the appellant was prepared to lie on oath to protect himself.
Her Honour was satisfied beyond reasonable doubt the appellant was aware when he stole the car that it was to be used for the commission of an offence in which he would probably take part. She was prepared to sentence him on the basis that he may have been threatened expressly or by implication at the unit in South Perth by the third offender to take part in the robbery. She observed that as Ms Ripper had indicated, the third offender was clear as to what was going to happen and there was no sense either the appellant or her arguing with him about it, because he was in control and there was an implied threat to anyone who wanted to argue with him about it.
The Judge also accepted the appellant did not plan the robbery or know what the target of it was to be until the third offender indicated it to them on arrival at the scene. She also accepted what Ms Ripper had said in her video record of interview to the effect that she and the appellant were scared of the third offender. However, her Honour was not satisfied on the balance of probabilities that the appellant was threatened once he arrived at Nedlands. She was satisfied beyond reasonable doubt that by that stage he was committed to the commission of the offence as he hoped to obtain money to buy drugs and/or to support his then lifestyle. She was also satisfied that, after the robbery, he drove the other offenders to his friend's place and there allowed Ms Ripper to change her clothes and that he arranged for their disposal. She accepted that he received some several hundred dollars for stealing the vehicle and committing the robbery and that he left that behind with his friend.
Her Honour noted the appellant's personal circumstances. He was then 25 years of age (at the time of sentencing) and was almost 24 at the time he committed the offences. He was single and unemployed. He had a very bad heroin addiction at the time. According to the appellant he was suicidal at the time he committed the offences, although her Honour observed there was no other evidence apart from his assertion to support that. Nonetheless, she accepted that his heroin addiction was weighing heavily upon him at the time and was making his life very unpleasant and would have caused him considerable distress. She accepted the appellant had a very disadvantaged youth and that from a very early age had been living by his own wits and had been involved in the drug culture without any guidance about how he should live his life. He had a lengthy criminal record from a very early age. Since he has been an adult and up until the end of 2002, his offending was mainly in relation to traffic offences. He had two convictions prior to 2002 for stealing a motor vehicle. Her Honour referred to the appellant's sentence on 3 November 2003 following his plea of guilty in the Supreme Court, to a number of offences committed around the same time. He received an aggregate sentence of 4 years for those offences, which included aggravated burglary, stealing a motor vehicle and driving it recklessly. The concern expressed by her Honour was that the seriousness of the appellant's offending as of the end of 2002 appeared to be escalating, as did the frequency of it.
After some further brief observations about the seriousness of the offences themselves, her Honour turned to the issue of parity of sentencing in relation to Ms Ripper. As to that, her Honour said (AB 106 ‑ 107):
"Because one of your co‑offenders, Ms Ripper, has pleaded guilty and been sentenced for these offences, it is important for me that I take into account the sentence that she received in determining what is the appropriate sentence for you. Ms Ripper pleaded guilty to these two offences in this court in early 2003. When she was sentenced the sentencing judge said that she considered the appropriate starting point to be one of 12 years' imprisonment. She reduced that to five years' imprisonment to take account of the circumstances in which she had come to commit the offences, she took into account her personal circumstances, her confession and her early plea of guilty.
As a consequence of those matters - as I said, she reduced it to five years' imprisonment. She then suspended that sentence to take into account Ms Ripper's cooperation with the police. It's obviously desirable that persons who have been parties to the commission of the same offence should if other things are equal receive the same sentence. However, other things are not always equal and such matters as the age, background, previous criminal history, general character of the offender, the part which different offenders played in the commission of the offence, remorse and cooperation with the authorities have to be taken into account in fixing an appropriate sentence for each co‑offender.
In this matter I have taken those matters into account as I will now detail but let me first [sic say] that it is obvious that all things are not equal in this case. You do not have all the matters standing to your credit that Ms Ripper had standing to hers. In particular, she confessed her involvement in these offences to the police approximately two weeks after the commission of them. This was apparently at a time when the police were not aware of her involvement in them or even suspected her involvement in them.
She entered her plea of guilty to these charges at an early time when the matters were still in the Court of Petty Sessions. Consequently, she received a significant discount on her sentence for her early plea. The amount of that discount would have been in the region of 35 per cent given that it was at a very early time and followed admissions to the police about her involvement.
You did not confess your involvement in either of these offences until very recently you entered your pleas of guilty to them. Further when Ms Ripper spoke to the police, as I have indicated, she expressed her willingness to give evidence against you and the third offender. Additionally, she assisted the police in relation to other serious matters and offered to provide assistance in the future with respect to them. You have not provided information to the police about the third offender and neither have you promised such cooperation in the future.
The past and future cooperation provided by Ms Ripper was a powerful mitigating factor in her sentencing. Your failure to provide or promise such cooperation does not aggravate your offences in any way but it does deprive you of credit which she received in the sentencing process."
In respect of a submission by the appellant's counsel that the appellant deserved more credit than Ms Ripper for the circumstances in which the offence came to be committed, her Honour noted that the appellant had not suggested he required any persuasion to commit the offence of stealing the motor vehicle. Indeed, it was put to her that he had been known in the community as a car stealer. Although her Honour acknowledged the appellant committed that offence only because he was requested to do so by Ms Ripper, nonetheless the fact was he did steal the car, it was actually he who went and got it, it was he who drove it to Wanneroo, it was he who got it started when it would not work and it was he who drove it to the unit in South Perth.
In relation to submissions that the pressure the appellant was under warranted a greater reduction in sentence than that given to Ms Ripper, her Honour made two observations. First was that Ms Ripper had been sentenced on the basis she committed the offence after she had a gun held to her head by the third offender and in the context of her already being afraid of him because of the violence he had shown to her. By contrast, her Honour had found that it was not true the appellant only committed the offence because a gun was held to his head. She did say it was possible that he saw the third offender with a gun at the unit and that, together with his demeanour, made him think he should do what the third offender wanted him to do. The Judge sentencing Ms Ripper had specifically accepted that she had a real and well‑founded fear of physical harm if she did not carry out a successful robbery and later described that as warranting a "merciful disposition" and described Ms Ripper as being under "very significant pressure".
Jenkins J specifically found that the appellant was not under the same amount of pressure to commit the offence of robbery as was Ms Ripper.
The second observation made by her Honour concerned the appellant's background and history of offending. They did not lead her to readily accept that he was just a car stealer who was vehemently against committing an offence of that type. Rather, it led her to think that it would not have taken much to persuade the appellant to take part in the armed robbery if he thought he was going to receive some money from it. Her Honour then continued (AB 110 ‑ 111):
"I accept, as I have said, that you were stood over or bullied to a limited extent by the third offender to participate in the armed robbery offence. I accept that it was the third offender who planned the robbery. I accept that you were only told of the plan on the day of the robbery. I accept that you, knowing that the robbery was going to occur, agreed to drive the stolen vehicle to the scene so that it could be used to drive the offenders to and from the bank. You then agreed to actually participate in the robbery by going into the bank, although I accept you would have preferred to wait in the getaway car.
You then did go into the bank and you threatened bank staff with a gun. You actually took the money and then escaped with your co‑offenders. I accept you did not gain anything from the robbery apart from a few hundred dollars which you say you left with your friend. I accept that you had a different role from that of Ms Ripper. I do not accept that it was so different as to warrant distinguishing between the two of you.
Whilst she was involved in some of the planning and you were not, you provided the necessary second vehicle, you drove it to the scene, which she did not. Whilst she threatened staff and the public in a way which made it clear that she had a loaded firearm, it was you who threatened the staff member with a gun and it was you who actually took most of the money.
As to the comparative pressure that was applied to you both to commit the offence, I am satisfied that the pressure applied to you was not as great as that applied to Ms Ripper. Consequently I do not believe that you should receive the same credit in the sentencing process as she did for the circumstances in which you came to commit the offence of armed robbery. However, the credit you will receive in this respect will be significant.
As to your personal background, you both have disadvantaged backgrounds. You both had drug offences at the time of the offences. In this respect, to her credit, she had taken some steps to kick her habit by going on the Naltrexone program whilst you, although you had consulted the Naltrexone clinic, hadn't actually got to the point of having an implant."
With respect to the armed robbery offence, her Honour considered that a starting point of 12 years was as appropriate for the appellant as it was for Ms Ripper. Her Honour explained that working backwards by deducting 35 per cent for her plea of guilty from the 12 years and then deducting her sentence of 5 years from that figure, she had determined that Ms Ripper received about a 34 month deduction in her sentence for her antecedents and the mitigating circumstances in which she came to commit the offence, excluding the credit she received for her early plea of guilty. Her Honour determined that having regard to all relevant mitigating factors and some credit for the appellant's plea of guilty, the appropriate sentence for him was one of 8 years' imprisonment. The difference between that sentence and the 5 years imposed on Ms Ripper was due, she explained, to the extra credit the latter received for her early confession and her plea of guilty at the earliest possible time as well as the view of her Honour that Ms Ripper deserved more credit for the pressure she was under to commit the offence than the appellant did.
With respect to the stealing of the motor vehicle offence, Ms Ripper received an intensive supervision order. Her Honour explained that "given the more primary role" the appellant had in the commission of that offence, it was not appropriate that he receive the same penalty. In her view a sentence of imprisonment was the only appropriate penalty for him and she fixed that at 2 years' imprisonment.
Then applying the Sentencing Act amendments which required a reduction of those sentences by one‑third, her Honour imposed an actual sentence in respect of the armed robbery of 5 years 4 months and one of 16 months for the stealing a motor vehicle. Her Honour made an order that the appellant be eligible for parole and then turned to the issue of concurrency. Her Honour acknowledged that in the end she had to make a judgment as to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct offences may attract distinct penalties. She expressly adverted to the consideration of the general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consequent sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard to the course of criminal conduct viewed as a whole. She said the sentence she imposed must not be crushing. She adverted to the considerations which bore upon that and concluded that the appropriate disposition was to order that the two sentences be served partly concurrently with each other. She accordingly ordered that the sentence for the armed robbery commence after the appellant had served 6 months of the sentence for the stealing of the motor vehicle, making the total outstanding sentence one of 5 years 10 months' imprisonment. She said that taking the totality principle into account, she would order the sentences to commence from that day.
The proposition that the two sentences should have been totally concurrent with each other so as to result in a total sentence of 5 years 4 months, rather than 5 years 10 months' imprisonment, was only faintly pursued by the appellant, as was the proposition advanced in the appellant's written submissions that the total sentence of 5 years 10 months was "crushing" in its effect. The appeal against these sentences was effectively put on the basis of disparity with the sentences imposed on Ms Ripper.
The first point to be made is that it is apparent from her Honour's very careful and comprehensive reasons, that the findings of fact she made were well open to her, that she had regard to all relevant factual matters and that she expressly referred to and applied the relevant principles of sentencing.

As Gibbs CJ pointed out in Lowe v The Queen (1984) 154 CLR 606, 609 ‑ 610, it is obviously desirable that parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. Where there is a disparity, the court will only intervene where it considers the disparity is such as to give rise to a justifiable sense of grievance, or give the appearance that justice has not been done. (See also Cabassi v The Queen [2000] WASCA 305 at [13] per Wheeler J).
Her Honour expressly acknowledged these principles and detailed a lengthy comparison between the circumstances of the appellant and those of Ms Ripper.
Mr Watters made the submission, on behalf of the appellant in respect of the stealing offence, that an observer would see that one person had gone to gaol and one had not - and not only had one gone to gaol, but it was for a reasonable period of time, namely 16 months. He later qualified that submission by arguing that the sentence of 16 months was too high given that Ms Ripper, for the same offence, had received an intensive supervision order. He submitted that the appellant ought to have been given a lesser sentence, perhaps one of 6 to 12 months, rather than one of 16 months.
The obvious first point to be made about that, is that the appellant was not eligible to be granted an intensive supervision order in any event, because he was already subject to a term in custody.
A clearly very significant point of distinction between the two offenders was that Ms Ripper confessed her role in the commission of both offences to police before they suspected she was involved and then pleaded guilty very early in the court process. The appellant on the other hand, not only did not confess his involvement, and only entered pleas of guilty at what her Honour regarded as the last opportunity, but was also entitled to much less significant credit for his pleas for the reasons adumbrated by her Honour. There were also important relevant differences between the roles of the two offenders in stealing the motor vehicle. The appellant had what her Honour described as "a more primary [sic] role". On her Honour's findings he was not subject to anything like the same pressure to which Ms Ripper was subjected in the commission of the armed robbery. There were relevant differences in their antecedents. The matters described by her Honour were all real features of proper distinction between them.
There is simply no scope here for the appellant to entertain a justified sense of grievance about the different sentences imposed upon Ms Ripper for these two offences and nor do they show any objective appearance that justice has not been done.
I would dismiss the application for leave to appeal against the sentences imposed by Jenkins J.

8 November 2004 - Jackson DCJ

On 8 October 2004 the appellant pleaded guilty to two offences, one of escaping lawful custody whilst a sentenced prisoner and one of stealing a motor vehicle with violence whilst in company. By way of a notice under s 32 of the Sentencing Act he was also convicted on his own plea of one count of stealing money and a watch. All three offences occurred on 10 June 2004. At that time he was, of course, serving his terms of imprisonment in respect of the burglary and stealing motor vehicle offences. He was also facing further serious charges.
On 10 June 2004 the appellant was being held with other prisoners in the detention area of the Supreme Court. A guard was overpowered and prisoners stole a set of keys, unlocked an external door and escaped. The appellant was one of them.
The escapees approached the driver of a blue Holden Commodore in a threatening manner. Seven of them got into that vehicle. Two other escapees (Laurie Dodd and Brett Pezzino) carjacked a Landrover 4‑wheel drive, having forcibly ejected the sole male occupant. The appellant got into the passenger seat of the Commodore and both vehicles were driven off. Later, in a suburban area, the vehicles stopped briefly and the appellant and Guy Fullgrabe transferred from the Commodore to the Landrover. Both vehicles were then driven off.
After driving some way the driver of the Landrover stopped in Beeliar and according to the appellant, he was about to leave the Landrover when it was seen by police and the driver accelerated away.
The appellant and the other three occupants were eventually apprehended after the Landrover came to a stop.
H H Jackson DCJ noted that according to the pre‑sentence report before him, the appellant admitted that he was not pressured to escape and that he did not think of the consequences but was simply caught up in the excitement of the moment. It was said that apparently there had been a previous incident in 1995 when the appellant had had an opportunity to escape but had chosen not to do so. His Honour also noted that according to the author of the pre‑sentence report, the appellant had said he had been the driver in previous vehicle offences and not being the driver on this occasion, felt he had no control and was scared of the events that were happening.
When the appellant was apprehended he was found to be in possession of cash and a watch stolen from the vehicle.
The sentencing Judge accepted that the escape was unplanned and spontaneous and the appellant was not the original perpetrator nor was one of those involved in overpowering the security guard. He accepted the appellant was swept up in the activity which had been initiated by others.
He noted the appellant's personal circumstances and antecedents and that he had a long history of offending from a very young age and an established drug abuse habit. He noted that he was described in the pre‑sentence report as being emotionally immature, self‑absorbed, impulsive and lacking insight into both his own offending and into the feelings of victims.
His Honour said the appellant was entitled to some credit for the plea of guilty and the real issue for the court was that of totality. He added however, that unfortunately for the appellant, the escape from custody in the circumstances virtually necessarily involved a cumulative term and by law it was required to be a non‑parole term.
In respect of count 1 his Honour imposed a sentence of 2 years' imprisonment, cumulative on the present sentences. In respect of count 2 and the s 32 offences, "given the totality issues", his Honour imposed concurrent terms, they being 12 months' imprisonment on count 2 and 3 months in respect of the s 32 offence.
The complaint raised by this ground is again one of disparity - in this instance with the sentences imposed upon Dodd and Pezzino, compared to the appellant.
The maximum penalty under s 146 of the Criminal Code for escaping legal custody at the time of the offence was 3 years' imprisonment. The appellant does not contend that the sentence of 2 years' imprisonment was itself excessive.
Pezzino was sentenced by Fenbury DCJ on 29 October 2004 to 3 months' imprisonment for his part in the escape. However, his Honour was also dealing with Pezzino for offences on three other indictments and 11 other offences brought before him by way of a s 32 notice. The charge of escaping legal custody was one of the offences on the s 32 notice. That charge had been laid under s 67(1) of the Police Act 1892 (WA) and under that provision carried a statutory maximum of 18 months' imprisonment.
Fenbury DCJ said he believed the appropriate term of imprisonment to reflect Pezzino's criminal conduct represented by all of those offences, was 5 years' imprisonment. He structured the individual sentences he imposed on Pezzino accordingly.
On 4 November 2004, H H Jackson DCJ also sentenced Fullgrabe. He was also sentenced to 2 years' imprisonment for his part in the escape. There is obviously no disparity between the sentences imposed for that offence on the appellant and Fullgrabe.
Dodd was sentenced by Heaney SM in the Perth Court of Petty Sessions on 22 November 2004 to a term of imprisonment for 12 months and 1 day, with eligibility for parole, for his part in the escape. He had been charged under s 67(1) of the Police Act 1982. Dodd was a remand prisoner at the time of his escape and sentence. After taking into account the transitional provisions, Dodd effectively received the maximum penalty available.
Dodd and Pezzino were charged under the Police Act apparently because they were on remand at the time of the escape, whereas the appellant and Fullgrabe were charged under s 146 of the Criminal Code as they were in lawful custody under sentence following conviction for an indictable offence.
The submission by the respondent that the appreciably lower sentences imposed upon Pezzino and Dodd were explicable by the fact that they were in respect of offences charged under the Police Act which carried a maximum of 18 months' imprisonment, has some force. Nonetheless, if that is the only point of distinction and where each offender is being punished for exactly the same offence factually, significant disparity is apt to create an appearance of injustice.
In the appellant's case, it is significant that Pezzino was being dealt with for what counsel for the respondent described as "a whole raft of offences" and that Fenbury DCJ apparently took the approach of fixing what he regarded as an appropriate overall sentence of 7½ years' imprisonment (reduced to 5 years because of the Sentencing Act amendment transitional provisions) and then structured the individual sentences to achieve that. On the face of it though, a sentence of 3 months' imprisonment for that escape was exceptionally lenient.
There was no appeal by the State, no doubt because the overall result was thought to be appropriate. However, the situation thus created with respect to the appellant illustrates the point of the importance of sentencing Judges fixing sentences which are appropriate to each offence in a multiplicity of offences, as well as the overall criminality involved in them (Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45] ‑ [48]).
In this respect the respondent relies upon the following passage from the judgment of Anderson J in Capper (1993) 69 A Crim R 64 at 74:
"The relevant principles do not compel the Court to exactly follow the sentence imposed on the co‑offender it if [sic] considers that would result in a wholly inappropriate sentence. When a co‑offender has been treated with excessive leniency, justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence in light of the matters personal to the prisoner, including his record: Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411, per Mason J; Pecora [1980] VR 499 at 503; (1979) 1 A Crim R 293 at 297."
As Mason J said in Lowe (supra) at 610 ‑ 611:
"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
His Honour went on to say (at 612):
"It has therefore been generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases."
In my opinion the sentence imposed upon the appellant was manifestly excessive. A term of 12 months' imprisonment would have met the circumstances of the offence. That was effectively the term imposed upon the co‑offender Dodd. Notwithstanding the differences in the statutory maxima, their involvement in the actual escape was the same. The disparity between the sentence imposed on the appellant and that imposed on Pezzino is marked in the extreme. Even though the latter was on its face unduly lenient, the disparity was such as to give rise in the appellant to a justifiable sense of grievance as well as to create an objective appearance of injustice. That, of course, does not mean this Court should substitute a similar inadequate sentence, but the disparity must be ameliorated (R v Tisalandis (1982) 2 NSWLR 430; (1979) 1 A Crim R 7 per Moffitt P at 438; 14; Lowe (supra) per Dawson J at 623 ‑ 524).
I would accordingly grant leave to appeal, set aside the sentence of 2 years' imprisonment and substitute for it a sentence of 12 months' imprisonment cumulative upon the sentences the appellant was serving on 8 November 2004. There can be no order that the appellant be eligible for parole.

17 December 2004 - Miller J

The appellant and a co‑offender, Robert Hill, were presented on indictment before Miller J on 17 December 2004. Hill had previously pleaded guilty to counts 1 and 2 on that indictment and the appellant had pleaded guilty to counts 3 and 4. The offences to which the appellant had pleaded guilty were stealing a motor vehicle and aggravated armed robbery.
The facts in respect of the motor vehicle offence were that between 1.40 and 2.50 pm on 15 July 2002, another co‑offender, Ms Lauren Duyckers, went to the Crossways Shopping Centre in Subiaco where she stole a red Holden Commodore sedan by forcing entry and manipulating the ignition with a screwdriver.
About 4 pm the following day the appellant and Duyckers, together with an unknown other person, used the vehicle to commit an armed robbery on the Osborne Park branch of Bankwest. At the time the appellant knew the vehicle had been stolen. It was later abandoned in a car park in Yokine where it was located by police on 17 July 2002.
The robbery of the bank was the aggravated armed robbery. The appellant, Duyckers and the unknown other person, drove to the bank in the stolen Commodore. The appellant and the unknown accomplice entered the bank dressed in black track pants and black jumpers and wearing balaclavas and gloves. The appellant was armed with a double barrelled shotgun and the other offender was carrying a heavy hammer.
The appellant threatened the staff while his co‑offender ran to the counter and used the hammer to break the protective glass which shields the tellers from the public. The co‑offender jumped the counter and removed money from the drawers. He then forced a female teller into the safe room and removed cash from the shelves and cash tins. The offender grabbed the female teller by the hair and dragged her to another part of the safe room.
By that time the appellant had gained access to the teller area and was acting as a lookout.
At some point Duyckers entered the bank and told her accomplices to get out. They both ran out of the bank and drove away in the stolen Commodore. They later went to the Flag Inn motel in Hillarys and divided the proceeds. Approximately $37,140 was stolen.
Before Miller J, counsel for the appellant submitted that the most important sentencing issue was that of totality.
The State prosecutor submitted that disguises had been used, there was a high level of aggression and essentially it was a terrifying offence committed for greed only. He pointed out that, according to the author of the pre‑sentence report, the appellant admitted the offence was not committed due to any drug addiction or to supply any drug addiction; he had been refused a job and he committed the robbery on the advice of Duyckers only out of a motive of greed. His plea was not one made at the earliest opportunity, it was made on the day of the trial. Although it demonstrated an acceptance of responsibility and saved the community expense, he submitted little discount should be accorded because of it.
In his sentencing remarks, the sentencing Judge noted the appellant was 26 years of age and had a very long record of convictions, commencing with convictions in the Children's Court when he was 11. By the time he was 14 to 15 he was committing offences of burglary. In 1993 he committed offences of stealing with violence and robbery. His Honour observed that the appellant had been convicted of stealing a motor vehicle alone on 29 separate occasions. He had been convicted of burglary with intent, burglary involving the commission of an offence on numerous occasions, assaulting a public officer, stealing, possession of an unlicensed firearm and aggravated armed robbery. His Honour said he had read the sentencing remarks of Jenkins J who had sentenced him on 11 August 2004 for the aggravated armed robbery of the ANZ Bank in Nedlands. He referred to the sentence of 4 years' imprisonment previously imposed by Templeman J and the subsequent sentence of 2 years for escaping custody.
Referring to the pre‑sentence report, Miller J expressed concern to read that the appellant grew up developing a sense of status among his peers for his ability to steal cars and thought the comment:
"He also sets store by his status as a lifer within the prison culture"
was "a very alarming factor". He noted the report concluded the appellant had demonstrated limited insight into his offending behaviour and limited insight into victim empathy, although he was intending to participate in treatment programmes to address those issues in prison. His Honour then dealt with the circumstances of the individual offences, indicating that he rated armed robberies on banks at the top of the scale of seriousness.
His Honour said that under the previous sentencing law, he would have sentenced the appellant to 1 year 2 months' imprisonment for the stealing motor vehicle offence but under the new legislation that had to be 9 months 9 days. He would have sentenced the appellant to 8 years' imprisonment for the armed robbery and that became a sentence of 5 years 4 months' imprisonment under the amended legislation. His Honour ordered that the two sentences be served concurrently because the vehicle was used for the robbery. He made an order that the appellant be eligible for parole "because the other Judges did" but observed the appellant must realise he was running out of chances in that respect.
Miller J referred to the totality principle and said he could not just add 5 years 4 months onto what the appellant was presently serving because clearly that would be crushing. He accordingly ordered that the sentence be partly cumulative and that it commence on 1 June 2008, that is to say, making 4 years of the sentence concurrent with the sentences already being served.
The sole point of the ground of appeal against this aggregate sentence is that it was "crushing" in its effect and offended against the totality principle.
The submission advanced was that as the aggregate of the sentences becomes longer, the degree of hardship increases exponentially and that whilst the sentence imposed by Miller J added in effect 1 year and 4 months to what was at that time a lengthy sentence, an extra 1 year would have been more appropriate and not crushing.
The contention that the rationale for the principle of totality in sentencing is that the hardship of a term of imprisonment increases exponentially as it gets longer, is drawn from the judgment of Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207. Malcolm CJ discussed the "exponential" rationale in Herbert v The Queen (2003) 27 WAR 330. The Chief Justice referred in some detail to a number of authorities, noting that there were different views about whether that really was the rationale for the principle. In particular, he noted the different view of Anderson J (Jarvis, 216 ‑ 217) that the better view is that the principle is based on an appreciation that a sentence which will not take effect for some years, is itself a harsher sentence than one of the same length which take effect immediately. Malcolm CJ thought that view reflected a colloquial use of the word "exponential" rather than a mathematical use (Herbert, 343). His Honour concluded (at 351) that given the decision in Jarvis had been approved, adopted and applied by so many members of the court over a period of some 10 years since it was decided, it would not be appropriate for it to be overruled and departed from by a majority decision of a Court of Criminal Appeal constituted by a Bench of three Judges.

Whatever view may be taken of the underlying rationale for the principle (and in truth, in the end, the different views may all amount to the same thing), the principle itself is clear. It was explained by Anderson J in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 at 6:
"The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole."
There is a further qualification. It is that even where an aggregate sentence may be proportionate to the overall criminality of a series of offences, nonetheless "on a last look" it may be seen that the aggregate sentence is simply "crushing". In R v Yates [1985] VR 41 at 48, the Victorian Court of Criminal Appeal took that word, in that context, to connote the destruction of any reasonable expectation of useful life after release. Sentences which are not crushing may nevertheless offend the totality principle because in the aggregate they are just too long having regard to the overall criminality of the offender's conduct represented by the combination of offences (Anderson J, Vlek (supra) at 12).
In Jarvis (at 205 ‑ 207) Ipp J described the notion of sentences for two or more crimes being "crushing" as that which leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the offender if and when he is released; or where it destroys a reasonable expectation of useful life after release, citing Fox & Frieberg "Sentencing, State and Federal Law in Victoria", 1985. He noted that Thomas "Current Sentencing Practices", August 2001 at 57 ‑ 58 said a cumulative sentence may offend the totality principle "if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects".
In this case his Honour expressly adverted to the question of totality and recognised that it was the main issue for the appellant's sentencing. It certainly could not be said his Honour failed to have regard to it. It is clear his Honour considered the question both from the aspect of proportionality to the appellant's overall criminal conduct and from the quite separate and distinct aspect of having to impose a sentence which, in combination with those the appellant was already serving, would be crushing.
Counsel for the respondent submits that an order that the sentences for the offences with which Miller J was dealing be served wholly concurrently with those already being served, would have been to effectively leave the appellant unpunished for those offences. I accept that submission. Total concurrency would have lacked a proper proportion to the entirety of the appellant's criminal conduct in the aggregation of offences.
As at the date of sentencing before Miller J, the appellant had to serve 9 years 8 months. Following the sentences he imposed, the overall term became one of 11 years (to 1 October 2013).
The appellant had been in custody since October 2002. The final submission put on his behalf is that the overall period of 11 years' imprisonment for the whole combination of offences was disproportionate to the criminality represented by them and in any event was "crushing".
The first in the series of sentences was that before Templeman J on 2 December 2003. All of the sentences were therefore imposed after the amendments introduced by the Sentencing Legislation (Amendment and Repeal) Act 2003 (WA) ("the sentencing amendments") which came into effect on 31 August 2003; they were all imposed under the new sentencing regime, which requires a sentencing Judge to reduce by one‑third the sentence which he or she would have imposed prior to that date. An aggregate sentence of 11 years' imprisonment therefore equates to a pre‑August 2003 sentence of 16 years 6 months. Of course, if as I propose (and subject to a consequential alteration I deal with below), the sentence of 2 years' imprisonment for the escape from legal custody is reduced to 12 months, the 11 years would become 10 years (equivalent to a pre‑amendment sentence of 15 years' imprisonment).
In his reasons, Murray AJA does not accept that it is a legitimate exercise to test the application of the totality principle in this way. I respectfully disagree. In my opinion (and perhaps only until such time as a sentencing Judge is following the practice of the Court as established in accordance with the provisions of the sentencing amendments (Sch 1, cl 2(4) Sentencing Legislation Amendment and Repeal) Act 2003)) a sentencing Judge is required to make that comparison.
In this context the issue is whether the question whether the total effective period of imprisonment imposed upon the offender ("the aggregate term") infringes the principle of totality is to be tested by having regard to the equivalent pre‑amendment sentence, or solely by the aggregation of a fixed term actually imposed after 31 August 2003 (already reduced by the one‑third the sentencing amendments requires).
A sentencing Judge must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality (Mill v The Queen (1988) 166 CLR 58; Pearce v The Queen (supra) per McHugh, Hayne and Callinan JJ (Gummow J agreeing on this) at [45])). It was emphasised in Pearce (ibid, at [47]) that it is important to apply proper principle in fixing the appropriate sentence for each offence. There are two particular reasons for that. The first is that otherwise, orders made for cumulation or concurrence would be made on an imperfect foundation. The second is that failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences. It follows from this that adjustments to achieve an aggregate sentence commensurate with the offender's overall criminality in respect of multiple offences ought to be made by orders for cumulation or concurrency, rather than adjustment of sentences for individual offences.
That individual sentences are each reduced by one‑third does not obviate the problem. That is because the period the offender will actually have to serve in prison will not depend upon the length of the individual sentences, but upon the extent to which they are concurrent or cumulative.
It cannot have been the intention of Parliament to require reduction of sentences by one‑third to allow for statutory structural changes to the legislative regime, with the object of ensuring that offenders do not spend more time in prison after the amendments than they would have previously, yet permit courts to impose total effective periods of imprisonment longer (and probably significantly longer) than those overall periods would have been prior to 31 August 2003.
Miller v The State of Western Australia [2006] WASCA 163 is an example. On any single offence of the various kinds there dealt with, the sentencing Judge was required to impose a term one‑third less than she would have imposed for that offence prior to 31 August 2003. The offender would therefore have had to serve one‑third less, if sentenced only for that offence. That is the stated intent of the legislation. The one‑third rule is not to be applied to the aggregate sentence. But prior to 31 August 2003, the notion of totality would have to have been applied to the aggregate sentence (in Miller, 16½ years). Because of the changes to the sentencing regime, an offender who now receives an actual sentence of 11 years is liable to serve exactly the same time in prison (parole aside) as if he or she had been sentenced to 16 ½ years prior to 31 August 2003. Consistency and fairness in sentencing necessarily require that comparison to be made now when a sentencing Judge (or this Court) comes to consider the application of the totality principle. I do not see Miller as saying anything different. The assessment of the possible sentencing outcomes having been made in that way, the appropriate aggregate outcome is properly arrived at by orders of cumulation or concurrency.
With respect, the fallacy in the approach which requires the pre‑August 2003 position to be entirely disregarded, is that it assumes a sentencing process must occur in specific or definite stages at which relevant decisions must be made and cannot thereafter be revisited. That is not the process described by the High Court in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 79 ALJR 1048. In Wong, Gaudron, Gummow and Hayne JJ explained the "instinctive synthesis" approach (ibid at [75]) as meaning no more than taking account of all relevant factors to arrive at a single result which takes due account of them all. The sentencer is called on to reach a single sentence which balances many different and conflicting features. This approach was confirmed by the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian, at [37] ‑ [39].
Accordingly, I do not see a difficulty with the mechanics of the process. It is clear beyond doubt that the one‑third reduction must be applied to the individual sentences for the respective offences, and that must be done before orders for cumulation or concurrency can be made. But none of that precludes a sentencing Judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency, before fixing the particular sentences and their appropriate aggregation. Indeed, it seems to me that is implicit in the sentencing approach described by the High Court in Wong and Markarian and the "last look" required by the totality principle.
A sentence of 11 years' (or even 10 years') imprisonment under the post‑August 2003 sentencing regime is undoubtedly a very long sentence, but the criminality represented by the very large number of offences involved was extreme, against a background of an already very long history of criminal offending. The sentences here related to four of stealing a motor vehicle, three aggravated burglaries, two aggravated armed robberies of banks, one stealing and one stealing a motor vehicle with violence and in company, and one escaping legal custody. The bank robberies alone were extremely serious. They involved firearms and terrorising staff and customers. That being dealt with by Miller J was probably the most serious of all. The appellant had threatened staff with a double‑barrelled shotgun, a female teller was forced into a safe room and she was then grabbed by the hair and dragged.
For that last armed robbery and the stealing a motor vehicle offence associated with it, the result of the orders made by Miller J was to increase the appellant's overall head sentence by 1 year 4 months.
I am not persuaded the overall period of 11 years was disproportionate to the cumulative criminality represented by the appellant's offending, even allowing for the "exponential" effect of later sentences or the reduced purpose they serve for the reasons given by Anderson J in Jarvis.
Nor do I consider the sentences to be "crushing" in the sense I have described it above.
The appellant was 25 years of age when sentenced by Jenkins J in August 2004. He is now 27 years of age. As they stood, the aggregate head sentences would have expired on 1 October 2013. The appellant would have been eligible for parole on 30 September 2011, by which time he would be 32 years old. Under the circumstances I do not consider the sentences as being "destructive of any useful life after release".
There is one further point which requires attention.
Miller J ordered the sentence of 5 years 4 months for the aggravated armed robbery of the Osborne Park bank to commence on 1 June 2008. At that stage the last 2 years of the appellant's existing sentence which was to end on 11 June 2012 was the 2 years for the escape. The effect of Miller J's order was to make only 16 months of the 5 years 4 months cumulative. If the escape sentence is reduced to 12 months, that aggregation of sentences would conclude on 11 June 2011 - which would have the result that the exclusively cumulative portion of the 5 years 4 months would be increased by 1 year - which was not his Honour's intention. Nor do I consider it would be an appropriate outcome.
Where this Court varies or sets aside a sentence on appeal it may vary any other sentence that was imposed at or after the time that sentence was imposed, or which took that sentence into account (s 41(2) Criminal Appeals Act 2004 (WA)). As I propose that the sentence imposed by Jackson DCJ on 8 November 2004 be varied and that sentence was taken into account by Miller J in fixing 1 June 2008 as the date for commencement of the 5 years 4 months' sentence, I would order that date be varied to 1 June 2007, meaning the appellant's aggregation of finite terms would end on 1 October 2012 and he would become eligible for parole on 30 September 2010.

Conclusion

I would -
(a)refuse leave to appeal against the sentences imposed by Jenkins J;
(b)grant leave to appeal the sentence imposed by H H Jackson DCJ, allow the appeal, quash the sentence and impose in lieu thereof a sentence of 12 months' imprisonment cumulative upon the sentences the appellant was serving on 8 November 2004;

(c)make a consequential order pursuant to s 41(2) Criminal Appeals Act that the date for commencement of the sentence imposed by Miller J of 1 June 2008 be varied to 1 June 2007, but would otherwise refuse leave to appeal against that sentence.

MURRAY AJA: I have had the advantage of reading in draft the comprehensive reasons of Roberts-Smith JA with which I am in substantial agreement.
I do not accept, however, that it is a legitimate exercise to test the application of the totality principle in the way his Honour does in discussing the length of the overall term when regard is had to the impact of the sentences passed by Miller J. Roberts‑Smith JA observes that at the end of that sentencing the overall term to be served was one of 11 years. His Honour notes that all the sentences under consideration in the case were imposed after 31 August 2003 and expressly allowed the one‑third reduction required by the transitional provisions on the introduction of the new sentencing regime by the Sentencing Legislation (Amendment and Repeal) Act 2003 (WA), Sch 1 cl 2(1). That provision requires the reduction of a fixed term which is proposed to be imposed. It is trite to say that following that the sentence of the court will be the term in fact imposed.
Where there are a number of sentences to fixed terms of imprisonment, the decisions about their individual length having been made, followed by decisions about the extent to which they should be cumulatively served or may be permitted to run concurrently, the totality principle requires a last look at the final sentencing outcome to ensure that, in aggregate, the sentences properly reflect the criminality involved in the offences committed, reduced as they have been, both individually and in aggregate, by a third under the transitional provisions.
In this case, when issues of totality were to be addressed following the sentences imposed by Miller J, the question became whether his Honour's exercise of discretion would miscarry because the resulting aggregate term of 11 years imprisonment was too severe on totality grounds. That would lead this Court to the conclusion that the sentences imposed by his Honour were manifestly excessive. In my respectful opinion, the totality question cannot be answered by imagining what this Court's reaction might have been had the sentences, individually and in aggregate, been scaled up by 50 per cent as if the equivalent pre‑amendment term of 16½ years imprisonment had been the term imposed.

On appeal in this case, I think I should add that because I respectfully agree that the 2 year term imposed for the escape from legal custody must be reduced to a term of 1 year, when this Court, upon that resentencing, comes to consider the question of totality following the sentences imposed later by Miller J, the question becomes whether his Honour's exercise of sentencing discretion miscarried on the basis that the final outcome of the process of sentencing was an aggregate term of 10 years imprisonment. In my view, there is even less ground for supposing that a term of that length was disproportionately severe than there is for reaching that conclusion in relation to an aggregate term of 11 years imprisonment.
In the final analysis, therefore, I agree that the appeal should be allowed to the limited extent proposed by Roberts‑Smith JA, and I agree that the consequential order varying the commencement date for the sentences imposed by Miller J should be made.