Herbert v The Queen - [2003] WASCA 61

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HERBERT -v- THE QUEEN [2003] WASCA 61

CORAM: MALCOLM CJ
ANDERSON J
MILLER J

HEARD: 5 FEBRUARY 2003

DELIVERED : 26 MARCH 2003

FILE NO/S: CCA 112 of 2002

BETWEEN: TROY MATTHEW HERBERT
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - 33 offences including armed robbery, robbery, threats to injure, four counts of burglary of a habitation - Section 32 notice under Sentencing Act 1995 (WA) - Total term of sentences 58 years - Reduced by reason of the totality principle to 15 years with eligibility for parole - Whether excessive - Whether the severity of a sentence increases exponentially as it increases in length

Legislation:

Crimes Act 1914 (Cth), Pt 1B, s 16A

Criminal Code, s 661
Criminal Law (Sentencing) Act 1988 (SA), s 18A, s 10
Firearms Act 1973 (WA)
Sentencing Act 1995 (WA), s 32, s 33, s 143(1), s 143(3)

Weapons Act 1999 (WA)

Result:

Application for leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr R D Young
Respondent: Mr K P Bates

Solicitors:

Applicant: Gunning
Respondent: State Director of Public Prosecutions

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

"D" v The Queen [2000] WASCA 137
"E" v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996
Abela v The Queen [2002] WASCA 279
Blight v The Queen [2001] WASCA 122
Boudville v The Queen [2001] WASCA 133
Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992
Bowman (1993) 69 A Crim R 530
Brett (1987) 140 LSJS 343
Clinch v The Queen, unreported; CCA SCt of WA; Library No 940321; 1 March 1994
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dixon v Scott [2002] WASCA 280
Evangelista v The Queen, unreported, CCA SCt of WA; Library No 920051; 30 January 1992
Fisher v The Queen [1999] WASCA 122
Gordon (1994) 71 A Crim R 459
Greenburg (1993) 68 A Crim R 392
Heferen v The Queen [1999] WASCA 81
Heryardi v The Queen (1998) 19 WAR 383
Hodder v The Queen (1995) 15 WAR 264
Holder and Johnston (1983) 3NSWLR 245
Jarvis v The Queen (1998) 20 WAR 201
Krakouer v The Queen (1996) 16 WAR 1
Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 12 July 1994
Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997
Lowndes v The Queen (1999) 195 CLR 665
Magee v The Queen (1980) WAR 117
Mankovina v The Queen (No 2) (1997) 19 WAR 119
McL v The Queen (2000) 74 ALJR 1319
Mesiti v The Queen [1999] WASCA 76
Mickelberg (1984) 13 A Crim R 365
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Moro v The Queen [2001] WASCA 44
Moyse (1988) 38 A Crim R 169
Neal v The Queen (1982) 149 CLR 305
Pearce v The Queen (1998) 194 CLR 610
Podirsky v The Queen (1990) 3 WAR 128
Pop v The Queen [2000] WASCA 283
R v Barton, unreported; Court of Criminal Appeal (Eng); 6 October 1972
R v Bradley [1979] 2 NZLR 262
R v Brown [1999] 1 Cr App R(S) 47
R v Hamilton (1980) 2 Cr App R(S) 229
R v Harris (1992) 59 SASR 300
R v Holder and Johnston [1983] 13 A Crim R 375
R v Larsen [1989] 44 A Crim R 121
R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1999
R v Millen (1980) 2 Cr App R(S) 357
R v Ogilvie, unreported; CCA SCt of WA; Library No 960643; 8 November 1996
R v Pezzino [1997] 92 A Crim R 135
R v Place (2002) 189 ALR 431
R v Quartermaine [2000] WASCA 341
R v Reeves (1980) 2 Cr App R(S) 35
R v Stevens (1997) 2 Cr App R(S) 180
R v Stickland [1989] 3 NZLR 47
R v Todd [1982] 2 NSWLR 517
R v Wall (2000) 209 LSJS 135
R v Ward (1999) 109 A Crim R 159
R v Wiskich (2000) 207 LSJS 431
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Rafferty v The Queen [2002] WASCA 312
Ricciardello v The Queen [2001] WASCA 416
Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587, 9 October 1998
Robson v The Queen, unreported; CCA SCt of WA; Library No 940377; 28 July 1994
Rose v The Queen [2000] WASCA 238
Roser v The Queen (2001) 24 WAR 254
Salisbury v The Queen (1994) 12 WAR 452
Scott and Massey v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999
Sell v The Queen (1995) 15 WAR 240
Sheppard (1995) 77 A Crim R 139
Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996
Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992
Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993
Thomson v The Queen, unreported; CCA SCt of WA; 19 March 1973
Tihema v the Queen, unreported; CCA SCt of WA; Library No 940137; 17 March 1994
Ugle v The Queen [2001] WASCA 268
Veen v The Queen (No 2) (1987) 164 CLR 465
Vilai v The Queen [1999] WASCA 275
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Wegner v The Queen [1999] WASCA 26
Wicks v R (1989) 3 WAR 372
Williams v The Queen, unreported; CCA SCt of WA; Library No 930045; 2 February 1993
Wong v The Queen (2001) 185 ALR 233
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Cameron v The Queen [2002] WASCA 81
Comstive v Van Lierop and Babich [1999] WASCA 288
Hayes v The Queen [2002] WASCA 56
Haylock v The Queen [2000] WASCA 287
McKenna v The Queen (1992) 7 WAR 455
Murphy v The Queen, unreported; CCA SCt of WA; Library No 990126, 9 February 1999

MALCOLM CJ: This is an application for leave to appeal against sentence. On 21 June 2002 the applicant was sentenced in the Supreme Court by White AUJ to a total term of imprisonment of 15 years in respect of a total of 33 offences committed between 15 September 2000 and 31 May 2001. Had the sentences been made cumulative on one another, they would have aggregated a total of 58 years and 1 month. In addition, the applicant was fined a total of $1700 for a number of other offences. Some of the sentences of imprisonment were made concurrent on account of the totality principle and the number of cumulative sentences was limited to bring about the aggregate of 15 years. The details of the sentences imposed and the offences which gave rise to them are set out in the reasons for judgment of Anderson and Miller JJ, which I have had the advantage of reading in draft.

Sentences Not Excessive

As Anderson J has pointed out, the primary contention made on behalf of the applicant was that the sentences imposed for the various burglary offences were excessive. In this context, it is of considerable significance that in 1996 Parliament increased the maximum sentence for burglary from 14 years to 18 years' imprisonment. This was a consequence of the increasing prevalence of the offence. In this context, I agree with the comments made by Anderson J, including, in particular, what his Honour said in Heferen v The Queen [1999] WASCA 81 at [35] regarding the duty of the courts to give effect to the legislative policy behind the amendments to the Criminal Code.
So far as the relevant offences are concerned, I also agree with Anderson J that the two offences of threat to injure, in respect of which a sentence of imprisonment for 2 years was imposed on each of the two counts, fully justified such sentences. In my opinion, these offences were both very serious and close to the top end of the range. I am quite unable to accept that they were excessive, let alone manifestly excessive. I agree with Anderson J that a sentence approaching the maximum was warranted, subject to taking account of any circumstances of mitigation, including the pleas of guilty.
I also agree with Anderson J that the submission that, taking into account the "totality principle", an aggregate sentence of 7 years for the various offences, the subject of the notice under s 32 of the Sentencing Act 1995 (WA) ("Sentencing Act") was not manifestly excessive. Section 32 enables a superior court, namely, the Supreme Court or the District Court, to sentence an offender, both in respect of indictable offences and in respect of summary offences brought before it. By s 33(3) of the Sentencing Act, a sentence imposed under ss 32 and 33 is to be regarded as a sentence imposed following conviction on indictment.
The primary contention advanced on behalf of the applicant was that the sentences imposed for the offences of burglary were manifestly excessive. According to the Crime and Justice Statistics of Western Australia: 2001 published by the Crime Research Centre of the University of Western Australia in November 2002 ISSN 1037 –6941, the rate of unlawful entry of premises in Western Australia was the highest in Australia in the calendar year ended 31 December 2001 at 3250.9 per 100,000 of the population, compared with New South Wales 2480.6, Victoria 1678.4, Queensland 2031.9, South Australia 2332.8, Tasmania 1967.6, Northern Territory 3243.6 and the ACT 1885.9. The rate for Australia as a whole was 2246.9 per 100,000. I agree with Anderson J that it would appear that to date there has not been any significant degree of firming up of sentences for burglary. However, in light of the increased penalties provided by Parliament, it is necessary for the courts to give effect to the clear intention of the legislature by increasing the sentences imposed for the offence by reason both of its prevalence and the increased level of community concern as a result.
In this context, while it may be acknowledged that the offences of burglary in this case were not in the worst category in terms of the amount and value of the property stolen, they were serious examples of the kind which have become prevalent in recent years. They involved forced entry, a search of premises, constituting a gross invasion of the space and privacy of the occupants, leaving them with a great sense of insecurity and characterised by the removal of everything of value that could be carried away without too much difficulty.
In my opinion, having regard to the maximum now available, the sentences of 5 years imposed by the learned Judge in this case were, by no means, manifestly excessive. As Anderson J said in Heferen v The Queen (supra) at 13, after referring to the increase in the maximum sentence:
"It is of course the duty of the courts to give effect to the policy behind this change."
It was submitted on behalf of the applicant that the sentences of 2 years on each of the two counts of threat to injure, after allowing a discount of 25 per cent for the pleas of guilty to all of the offences the subject of the notice under s 32 of the Sentencing Act, were manifestly excessive. It was said that the end result indicated a starting point of 32 months, which was much too close to the maximum of 3 years for each such offence, having regard to the circumstances. As Anderson J has demonstrated, these offences were very serious examples of such threats. In my opinion, sentences approaching the maximum were appropriate, having regard to the circumstances. The first threat involved the use of a knife to inflict terror. The second involved entry onto the premises of the occupiers, in company, and an unambiguous threat of serious personal harm if the matter was reported.
Finally, it was submitted that an aggregate sentence of imprisonment for 7 years in respect of all of the offences comprised in the s 32 notice was manifestly excessive. I agree with Anderson J that there was in fact no separate sentencing exercise to be undertaken with respect to the offences the subject of the notice. The learned Judge was involved in sentencing the applicants in respect of all of the offences of which they had been convicted. It was quite proper for the learned Judge to proceed to deal with the offences the subject of the s 32 notices separately, but in conjunction with the sentences for the burglary offences. The issue raised by the appeal is whether the total of the sentences imposed of 15 years' imprisonment was excessive, having regard to the totality principle in the context of the whole of the course of criminal conduct involved, in the context of all other relevant circumstances.

The Totality Principle and Jarvis v The Queen

In this context, reliance was placed upon the totality principle and, in particular, a passage in the judgment of Ipp J in Jarvis v The Queen (1998) 20 WAR 201 at 207 where his Honour said:
"While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos [Vaitos (1981) 4 A Crim R 238] at [301] by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) (1988) 164 CLR 465; Evangelista and Laporte, unreported; CCA SCt of WA; Library No 920051; 30 January 1992) v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."
In the present case, it was submitted on behalf of the applicant that the total sentence of 15 years imposed in this case was too long and, therefore, offended the totality principle. Counsel specifically relied upon the rationale of the totality principle stated by Ipp J in the passage which I have mentioned, namely, that "the severity of a term of imprisonment increases exponentially as it increases in length", as the reason why courts are required to exercise restraint with respect to lengthy sentences.
The precise meaning of the expression "the severity of a term of imprisonment increases exponentially as it increases in length" does not appear to have been previously explained in any detail. According to the Shorter Oxford Dictionary, the term "exponential" is related to mathematics, being something which involves "the unknown quantity or valuation of an exponent, i.e. a symbol denoting the power of an index" such as: 6² or 6 to the power of 2. This is known as an exponential quality or function. A similar meaning is given in the Oxford Illustrated Dictionary as involving the "unknown quantity or valuation of an exponent, i.e. a symbol denoting the power of an index." A similar mathematical meaning is given in the Macquarie Dictionary. The colloquial meaning is also given, namely, something that is "marked by a rapid increase in magnitude, number, etcetera". In my opinion, the term was not used by Ipp J in any technical or mathematical sense, but to suggest that the increase in length of a sentence is perceived as increasingly greater severity than the actual length of the sentence. Thus, for example, the doubling of a sentence may be perceived as being more than twice as severe, in the sense that the severity is compounding by a factor more than simply the additional length of the sentence. As Ipp J himself said in Jarvis at 207, immediately following the proposition in question:
"Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."
This passage was preceded by two quite important passages in Jarvis at 204 and 205. First, Ipp J noted at 204 that it was accepted on behalf of Jarvis that both the sentence of 8 years and the sentence of 7 years imposed in that case, when looked at in isolation, fell within an acceptable range. Secondly, at 205 his Honour noted that in Mill v The Queen (1988) 166 CLR 59 at 62 ‑ 63 the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) upheld the description of the totality principle in Thomas, Principles of Sentencing (2^nd ed 1979) at 56 as follows:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
In R v Bradley [1979] 2 NZLR 262 at 263, the Court of Appeal of New Zealand held that cumulative sentences should not result in an aggregate term wholly out of proportion with the gravity of the offences when viewed as a whole. This implies that the severity of a combination of individually appropriate sentences for a series of offences to be served concurrently is greater than the total length and may be excessive because the severity increases at a greater rate than the sum of the individual sentences.
In R v Stickland [1989] 3 NZLR 47 at 50, the Court of Appeal of New Zealand adopted and applied the approach of the High Court in Mill (supra), including the requirement that a Court having imposed a series of appropriate sentences for each offence, separately considered, whether a series of cumulative sentences or a combination of concurrent and cumulative sentences, must review the overall sentence to ensure that the total is not excessively harsh or grossly disproportionate to the general level of gravity of the individual offences.
In Thomas, Current Sentencing Practices, August 2001 at par A5‑3AOI, reference is made to R v Barton, unreported; Court of Criminal Appeal (Eng); 6 October 1972 in which Lawton LJ said:
"If one does the arithmetic the totality of all the sentences which could reasonably have been passed upon him far exceeds four years. But the Court is minded that when these cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."
See also: R v Reeves (1980) 2 Cr App R(S) 35; R v Hamilton (1980) 2 Cr App R(S) 229; R v Millen (1980) 2 Cr App R(S) 357; R v Stevens (1997) 2 Cr App R(S) 180; R v Brown [1999] 1 Cr App R(S) 47, and McL v The Queen (2000) 74 ALJR 1319 at [14] – [21] per Gleeson CJ, Gaudron and Callinan JJ
In Evangelista v The Queen, unreported, CCA SCt of WA; Library No 920051; 30 January 1992 Murray J (with whom Owen J agreed) said:
" … where there is a multiplicity of offences for which sentence must be passed the application of that basic principle with respect to individual offences must give way to what used to be called the limitation that 'enough is enough' and has come to be called the 'totality principle'. And it is quite clear that where there is a multiplicity of offences for which sentence is to be passed it may not be possible without achieving a crushing result to apply proportionate sentences with respect to each individual offence. What then must be considered is the overall effect in aggregate to see whether the result finally to be achieved is proportionate to the series of crimes which have been committed: Mill v R (1988) 166 CLR 59 at 62‑63."

Ipp J went on to say in Jarvis (supra) at 205 – 207 that:
"It has often been said that where the overall sentence for two or more crimes is 'crushing', that overall sentence should be reduced, even though each of the terms when separately viewed is within an appropriate range. When is a sentence to be regarded as 'crushing', and when is 'enough' to be regarded as 'enough'? It is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release: see Fox and Freiberg, Sentencing, State and Federal Law in Victoria (1985).
According to Thomas op cit [at 57–88] 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.' The learned author observes at 58 that this represents 'an extension of the practice of mitigation'. At 59 he says that this part of the totality principle 'appears to require a sentencer who imposes a series of consecutive sentences to consider the mitigating factors in relation to the totality of the sentence, even though they have already been considered in relation to the individual component parts.'
Seen in this light, the 'crushing' effect of a cumulative or aggregate sentence is no more a mitigatory factor than the crushing effect of a severe sentence imposed for a single offence. It is always the duty of the sentencing court to be justly merciful and the potentially crushing effect of a sentence should always be taken into account as one of the factors relevant in the sentencing process."
Ipp J referred to Vaitos v The Queen (supra) as an example of the application of the principle. In that case, Vaitos had been convicted of several serious offences and a number of the sentences were made concurrent. Nevertheless, the total sentence was imprisonment for 26 years. Vaitos subsequently pleaded guilty to numerous further counts, mainly of burglary. The aggregate of the individual sentences imposed on these further counts was imprisonment for 63 years. Only 2 years of the 63 were ordered to be served cumulatively upon the earlier sentences. The result was a total effective sentence of 28 years with a minimum non‑parole of 26 years. The applicant was 33 years of age. The Court of Criminal Appeal in Victoria did not consider the sentences to be either unfair or "crushing": see per Young CJ at 242, Murphy J at 276 and O'Bryan J at 301.
In Jarvis (supra) Murray J was also of the opinion that the application should be dismissed. His Honour referred at 211 to the approval by the High Court in Mill v The Queen (supra) of the statement of the totality principle in Thomas, op cit, and added:
"The statement of the principle in that text was not one attended with any great sophistication. It was simply put that where a number of sentences are to be passed and ought to be imposed consecutively, it is not sufficient to simply conclude that each sentence individually is properly proportionate to the gravity of the offence. The court must look, so it is said, at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. That is a statement which refers to the application of the principle when a number of sentences are to be passed on one occasion and so the High Court said at 63:
'Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.'
In this case, as we have already seen, each sentencing Judge sacrificed the cumulative imposition of sentences for individual and separate offences to the need to achieve an appropriately proportionate result in the total. And so it was the case that appropriate individual sentences were imposed but ordered to be served concurrently when, according to the accepted principles, being quite separate offences, they would have been ordered to be served cumulatively."
Murray J went on to say that the principle is also to be applied when a court is, or two courts are, required to sentence for a number of offences on different occasions. In each case it is necessary to ask what is the appropriate sentence for the totality of the criminal behaviour?
While in dissent in Jarvis, similar views were expressed by Anderson J in his reasons from 215 – 218. His Honour said at 215:
"Where the series of offences are so closely connected in nature, time and circumstance as to be properly regarded as one transaction or one spree or one continuing criminal operation, the totality principle may, and perhaps should, be given effect to by allowing the sentences to run concurrently: Brown v Lynch (1982) 5 A Crim R 404 at 407. It is less imperative to do that where the crimes are unconnected and quite separate in point of time. A fortiori where they are also different in nature, such as, for example, a rape and a robbery committed many months apart. However, even in such cases, mitigating devices are employed. See, for example, Vaitos v R (1981) 4 A Crim R 238. Usually, but not always, this will be by reducing the later or second sentence or sentences rather than by allowing the second lot to be concurrent or partially concurrent with the first lot. The practical effect will often be the same but it does seem more in accord with general sentencing jurisprudence to order accumulation and lower the cumulative sentences, rather than to allow concurrency, especially where there is a wide separation in time and circumstances between the offences. In my opinion there is ample justification and precedent for this approach. The justification is not necessarily to be found, however, merely by reference to the so-called totality principle or to that limb of it represented by the caveat against imposing 'crushing' sentences. A sentence may, of course, offend the totality principle without being 'crushing'. In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished (which is to apply the totality principle) the aggregate may be seen to be inappropriately long even although it is not so long as to bring about 'the destruction of any reasonable expectation of useful life after release' (the definition of 'crushing' given in Yates v R [1985] VR 41 at 48) or so long that all desire for rehabilitation is likely to be extinguished."
The decision of this Court in Bowman (1993) 69 A Crim R 530, 18 June 1993, was published just five days after the decision in Jarvis (supra). Bowman was convicted on his pleas of guilty to three counts of cultivation of cannabis with intent to sell or supply it to another, two counts of selling a quantity of cannabis to another and one count of possession of cannabis with intent to sell or supply it to another. The crops of cannabis were separate. Bowman was declared a drug trafficker. He was sentenced to imprisonment for 1 year on the first count of cultivation and 2 years on the second count of cultivation, to be served concurrently with a further sentence of 2 years in respect of a count of selling a quantity of cannabis from that crop. These two terms were cumulative upon the sentence for the cultivation of the first crop. He was also sentenced to 4 years on the third count of cultivation. Further sentences of imprisonment for 4 years were imposed in respect of one count of selling a quantity of cannabis from the third crop and a further count of possession of cannabis with intent to sell or supply it. The three sentences of 4 years were directed to be served concurrently with each other, but cumulatively upon the previous sentences so that the total term of imprisonment was 7 years. Bowman was made eligible for parole in respect of each sentence. In this way, the total potential sentence of 19 years was reduced to 7 years.
On appeal, it was held by Malcolm CJ (with whom Kennedy J agreed) that the totality principle was not infringed by a total sentence exceeding the sentence imposed for the most serious of the offences in the series. In reaching that conclusion, however, neither Malcolm CJ nor Kennedy J embarked upon any detailed analysis of the totality principle.
One of the contentions in the case was that the aggregate sentence was inconsistent with the first limb of the totality principle stated by Thomas, Principles of Sentencing (2^nd ed) at 56 – 57 as follows:
"A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal term of sentences for the most serious of the individual offences involved."
This argument was rejected by Ipp J who said in Bowman (supra) at 541:
"… the so‑called limb of the totality principle does not reflect any of the purposes of punishment. It is an arbitrary rule that has no bearing upon the principle of proportionality. Further it does not reflect the sentencing practice adopted in this state. In my view it does not represent the law in this state."
In Sentencing for Multiple Offences in Western Australia, Research Report No 6 of the University of Western Australia Crime Research Centre by Marianne Wells, the learned author commented at 37 that:
"The essence of the first limb is to maintain some recognisable relationship between the total sentence and the most serious offence involved. This limb is formulated somewhat differently to the concept of relative proportionality, in that it requires a comparison between the total sentence and the usual range of sentences for the most serious offence involved, rather than a comparison between different classes of offence. However, the first limb is, perhaps, an attempt to give practical meaning to the concept of relative proportionality. By tying the total sentence to the normal range for one class of offence, there is an implicit recognition that a number of offences of one class of offence may not be as serious as a single instance of a more serious class of offence.
The difficulty, however, lies in selecting the most serious offence as the limitation on the total sentence. If the normal range of sentences is based on single instances of that offence, it is difficult to see why a total sentence for a number of offences would be disproportionate merely because it exceeds the normal range. In addition, if the offences are different in type the most serious offence may not be representative of the conduct."
The author went on to discuss the second limb of the totality principle described by Thomas (op cit) at 56 that a cumulative sentence or cumulative sentences may have the effect of imposing "a crushing sentence" not in keeping with the offender's record and prospects. It is in this context that courts will consider whether the aggregate of all the sentences "… is a just and appropriate measure of the total criminality involved": Postiglione (supra) per McHugh J at 307 – 308; Gummow J at 321; and Kirby J at 340; see also Fox and Frieberg, Sentencing (2^nd Ed) at 725 – 726. As the learned authors say at 725:
"The result will be an effective sentence that is less than the sum of its parts because some components will have been made concurrent or partially concurrent."
The components include not only the sentences then being imposed, but also any sentences which the offender is currently serving: Postiglione (supra) at 308 per McHugh J who expressed the basis for this in terms of "the merciful intervention of the court": Gordon (1994) 71 A Crim R 459 at 466 per Hunt CJ. In other words, although logic may require that unconnected offences may require cumulative sentences, mercy requires a reduction to prevent the overall sentence being crushing or out of proportion to the total criminality involved. The just result is achieved by making sentences which would otherwise be cumulative, concurrent or partially concurrent: see Fox and Frieberg (op cit) at 726 and cf: Mickelberg (1984) 13 A Crim R 365 at 371 per Brinsden J; Holder and Johnston (1983) 3NSWLR 245; Moyse (1988) 38 A Crim R 169 at 170 per Jacobs J; Brett (1987) 140 LSJS 343 at 345 per King CJ; Sheppard (1995) 77 A Crim R 139; and at 145 per Dowsett J.
It has been established that instead of reducing the length of a proper sentence to arrive at a just result, the approach should be to direct that some of the sentences be served concurrently, or partially concurrently. When the arithmetic has been done, it is necessary to have a "last look" at the totality of the criminal behaviour and ask whether the overall term contemplated is appropriate for all of the offences committed: Boskei (1970) 54 Crim App R 519. See also: Wicks v R (1989) 3 WAR 372 at 379 – 380 per Malcolm CJ.
In the present context, Fox and Frieberg (op cit) at 727 endorsed the "exponential" point as follows:
"In determining an appropriate total sentence, a court should take into account the argument that severity of sentence is an exponential, not a linear function. As Malcolm CJ explained in Clinch [(1994) 72 A Crim R 301, 306; see also Bowman (1993) 69 A Crim R 530]:
'… the severity of a sentence increases at a greater rate than any increase in the length of the sentence.' "
As far as the "second limb" of the totality principle described by Thomas, op cit, is concerned, Ipp J noted in Bowman (supra) at 541 ‑ 542 that the limits of this second limb were fully examined in Jarvis (supra). His Honour referred at 541 to the comments which he had made in that case to the effect that the "crushing" effect of a cumulative or an aggregate sentence is no more a mitigatory factor than the crushing effect of a severe sentence imposed for a single offence. It was also said that the "crushing effect" of a sentence was merely one of the mitigating factors to be taken into account in determining whether a particular term of imprisonment is proportionate to the criminality involved. His Honour went on to say at 542:
"In Jarvis I expressed the view (with which Murray J agreed) that the explanation for the phenomenon it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed was that 'the severity of a term of imprisonment increases exponentially as to the length'."
In Jarvis (supra) at 213, Murray J expressly dealt with the explanation by Ipp J that in the context of the totality principle, the total sentence imposed must be proportionate to the gravity of the offences. As Murray J put it at 213:
"And so it is in my opinion, that where there is a multiplicity of offences and sentences to be passed, the totality of the sentence must be proportionate to the totality of the criminal behaviour involved, whether or not there was any link between the commission of individual offences beyond the identity of the offender and the fact that he must at the one time serve the sentences. In that regard, I would with respect expressly concur in the view of Ipp J that the explanation for the fact that to apply the totality principle in such circumstances will generally effect a reduction in the total term, is to be found in the fact that 'the severity of a term of imprisonment increases exponentially as it increases in length.'
In my view, that has long been recognised and underlies the reasoning expressed in cases such as Magee v R [1980] WAR 117, 119 where Wickham J, with whom Burt CJ and Wallace J agreed, spoke of the need to ensure that the total term was no longer than necessary to meet the various purposes of criminal punishment and to avoid the possibility that too long a term might be harmful 'in that the prisoner might become hopeless, aggressive or otherwise intractable, and thus one of the purposes of punishment will be defeated through making it more rather than less likely that he will eventually offend again.' As his Honour put it, whilst persuasive authority warned a sentencing Judge against being 'weakly merciful', it was just as easy to make the mistake of being 'weakly severe'.
Magee was referred to by this Court in Mickelberg v R (1984) 13 A Crim R 365 where the court considered whether or not a reduction was required in a very long aggregate term simply as an exercise of mercy. It is that basis for the application of the totality principle as a reflection of the search for appropriate proportionality of sentence which in my opinion explains its application in relation to the imposition of fines: Sgroi v R (1989) 40 A Crim R 197, 203.
It was Wickham J in Thomson v R, unreported; CCA SCt of WA; 19 March 1973 who first expressed the totality principle in the phrase 'enough is enough' which seems to me to succinctly express the final result to be achieved in terms of proportionality of the aggregate penalty to the total criminality to which it is to be applied. In my opinion there is no other or additional content to the principle, and when, as it is sometimes put, it is expressed in terms that what is to be avoided is the achievement of 'a crushing result', that is simply to refer broadly to one test by which it may be considered whether the aim of proportionality has been achieved or whether undue severity has been employed. What is to be considered is the impact of the total term having regard to the various ways in which it may be thought to have become unduly punitive and positively harmful to the achievement of the proper aims of the imposition of sentence."
In Jarvis (supra), Anderson J said at 215:
"Where the series of offences are so closely connected in nature, time and circumstance as to be properly regarded as one transaction or one spree or one continuing criminal operation, the totality principle may, and perhaps should, be given effect to by allowing the sentences to run concurrently: Brown v Lynch (1982) 5 A Crim R 404 at 407. It is less imperative to do that where the crimes are unconnected and quite separate in point of time. A fortiori where they are also different in nature, such as, for example, a rape and a robbery committed many months apart. However, even in such cases, mitigating devices are employed. See, for example, Vaitos v R (1981) 4 A Crim R 238. Usually, but not always, this will be by reducing the later or second sentence or sentences rather than by allowing the second lot to be concurrent or partially concurrent with the first lot. The practical effect will often be the same but it does seem more in accord with general sentencing jurisprudence to order accumulation and lower the cumulative sentences, rather than to allow concurrency, especially where there is a wide separation in time and circumstances between the offences. In my opinion there is ample justification and precedent for this approach."
In Jarvis (supra) Anderson J also said at 216:
"I am inclined to think that in this kind of case, where the second sentence for an unrelated, unconnected offence is reduced on account of the earlier sentences, the courts are not solely (if at all) applying the totality principle in the sense in which that principle is expounded."
His Honour put it later at 216:
"Because the offences had been committed in the course of a crime spree of relatively short duration, there was no difficulty in treating the case as falling into the 'continuing episode' category of cases in which it would have been appropriate for a single sentencing court to review the aggregate sentence and consider whether it was proportionate to the whole episode."
Anderson J went on to say at 216 – 217:
"In my opinion, where the case is not of a kind in which it is proper to regard the conduct as one continuing episode and each separate offence as 'part of a whole', the justification for lowering the later sentences may not wholly reside in the totality principle. It is not simply a question of proportionateness (although even in this kind of case it may be said that to commit the same crime twice does not call for double the sentence) but of taking into account the powerful mitigating circumstance that the sentence being imposed is to be a consecutive sentence not capable of taking effect until after the completion of the custodial part of an existing sentence. In my opinion, a sentence which will not take effect for some years is in itself a harsher sentence than one of the same length which takes effect immediately. On this account cumulative sentences were once even thought to be invalid. As Professor Cross observed in 'The English Sentencing System' (Butterworths 1971) 77‑78:
'At one time a certain amount of uneasiness seems to have been felt over the question of the validity of consecutive prison sentences, although they were upheld in the 18th Century (R v Wilkes [1769] 4 Burr 2527 at page 2577). Thus Lord Halsbury once said:
"What earthly right has a judge to say 'You shall be sentenced to 7 years penal servitude, the sentence to begin in 10 years time'? If you cannot do that how does another sentence for another offence justify you in doing it".
There are also other considerations mentioned in R v Todd (at 519). They include fairness to the accused requiring weight to be given to the likely progress that he or she will have made toward rehabilitation during the term of the previous sentence or sentences, and the fact that the crimes, the subject of a cumulative sentence or sentences will be much staler by the time those sentences take effect."

Anderson J went on to say at 217:
"There is not the same requirement for the [subsequent] sentence to achieve a personal or general deterrent effect because that will already have been achieved (hopefully) by the earlier sentence. In short, in considering the sentence that is to be served at the completion of an existing sentence, there is not as much emphasis required on prevention, deterrence and reform as would otherwise have been the case. I think all of these matters can properly and sensibly lead to a marked reduction in the second lot of sentences without attempting to rationalise the approach by reference to the notions of aggregation or of 'crushing' sentences. After all, as was pointed in Vaitos, a long sentence is not necessarily a crushing sentence and a sentence that might be thought by the prisoner to be a crushing sentence is not necessarily excessive or 'more than enough': Magee v R [1980] WAR 117 per Wickham J at 119. Moreover, this approach does not necessarily demand of the second sentencing court that it should make a rigorous analysis of the facts and circumstances of the first unrelated crimes as is required if the 'totality' of the criminal conduct is to be 'viewed as a whole' for the purposes of the two sets of sentences. This would often be an unreal exercise, especially as the first sentencing court will not have engaged in it relative to the second lot of sentences."
The view expressed by Anderson J was that the imposition of a second or subsequent sentence of imprisonment cumulative upon an earlier sentence has a more severe impact upon the offender than if it had been the only sentence imposed. This is because "a sentence which will not take effect for some years is in itself a harsher sentence than one of the same length which takes effect immediately". In other words, there is a compounding effect in terms of severity by which, for example, a doubling of a sentence will have a result which makes the sentence more than twice as severe. It seems to me that this reflects a colloquial use of "exponential" rather than a mathematical use. In commenting on the totality principle, Andrew Ashworth (Vinerian Professor of English law at the University of Oxford) in Sentencing and Criminal Justice (3^rd Ed 2000) commented that in the context of the totality principle:
"If the leading principle is to retain some overall proportionality with the seriousness of the type of offence involved, it follows that each extra offence must have a diminishing incremental effect on the overall sentence."
This is the converse of the proposition that the severity of a sentence increases exponentially as it increases in length.
In Clinch v The Queen, unreported; CCA SCt of WA; Library No 940321; 1 March 1994, the Court of Criminal Appeal held that a declaration and direction made by the learned sentencing Judge that an offender was an habitual criminal under s 661 of the Criminal Code should be set aside. In my judgment (with whom Pidgeon and Seaman JJ agreed) I said at 10 ‑ 11:
"That having been done, the position then is that the applicant remained sentenced to imprisonment for a total of 26 years in respect of which he was eligible for parole in respect of sentences totalling 14 years. In my opinion, for the reasons to be published by Seaman J, the proper application of the totality principle in all the circumstances would result in the totality of the sentences being reduced to 19 years. This case provides a graphic example of the fact that the severity of a term of imprisonment increases exponentially as it increases in length: Vaitos (1981) 4 A Crim R 238; and Jarvis v The Queen unreported; CCA S Ct of WA; Library No 930341; 14 June 1993 per Ipp J (with whom Murray J agreed). In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of 5 years is more than 5 times as severe as a sentence of one year. Similarly, while a sentence of 7 years may be appropriate for one set of offences and a sentence of 8 years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences."
Pidgeon J agreed with the reasons of Seaman J. In the course of his judgment at 20 – 21, Seaman J cited with approval the judgment of Ipp J in Jarvis (supra) at 206 – 207 which I have already cited, including the passage in which Ipp J said at 207 that the reason for the reduction of otherwise proportionate sentences for particular crimes was that the severity of a sentence of imprisonment "increases exponentially as it increases in length". Seaman J also cited the passage in the judgment of Murray J in Jarvis at 213 adopting the explanation for the principle that a sentence must be proportionate to the gravity of the crime stated by Ipp J.
In Robson v The Queen, unreported; CCA SCt of WA; Library No 940377; 28 July 1994, the Court set aside the sentences imposed on Robson and substituted lesser sentences in the application of the totality principle.
Ipp J (with whom Kennedy and Rowland JJ agreed) said at 8 – 9:
"The sentences imposed by the learned sentencing Judge had the effect that the applicant faced an overall term of imprisonment of between 15 and 16 years. Having regard to the totality principle (and that the severity of a term of imprisonment increases exponentially as it increases in length: Jarvis v The Queen …) I consider that in the particular circumstances of this case, that overall period is excessive."
In Lawson v The Queen, unreported; CCA SCt of WA; Library No 940439; 12 July 1994, the applicant was sentenced to imprisonment for 14 years for attempted murder by stabbing, the subject of one indictment, and a cumulative sentence of 7 years in respect of a serious of violent sexual assaults and deprivation of liberty of a second victim, the subject of a second indictment, together with a direction that he be detained at the Governor's pleasure. The sentences were confirmed by the Court of Criminal Appeal. In a judgment with which Ipp and Scott JJ agreed, I said at 21 ‑ 22 that:
"An attempt was made by counsel for the applicant to argue that this was a case which fell within the principle that where a number of offences arise from substantially the same act or the same circumstances or a closely related series of occurrences, a cumulative penalty should not be imposed: cf Brown(1989) 5 A Crim R 504. It was submitted that the counts in the second indictment 'occurred in close proximity to the attempted murder, the subject of the first indictment and was a direct consequence of that attempted murder.' In my opinion there is no substance in these whatsoever in these submissions. While all the offences occurred on the one night, they involved quite different offences and different victims. The only possible justification for reducing the total of the sentences which would otherwise be justified for the attempted murder, on the one hand, and the sexual assaults on the other, would be the application of the totality principle.
It may be accepted that the total of all the sentences imposed should fairly and justly reflect the total criminality of the offender's conduct. In this context it is not unusual for an overall term of imprisonment to be reduced, even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed. This reflects the fact that the severity of a term of imprisonment increases exponentially as it increases in length: Vaitos (1981) 4 A Crim R 238; Jarvis v The Queen [supra] per Ipp J (with whom Murray J agreed) and Clinch [supra] per Malcolm CJ at 10. In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence."
In Woods v The Queen (1994) 14 WAR 341 at 345 – 359, Anderson J undertook an extensive review of the decisions of this Court prior to July 1994 involving multiple prolonged aggravated sexual assaults upon a young child in the family environment involving the taking advantage of a position of trust. His Honour made it clear at 345 that in such cases the law demands the protection of young children so that the dominant sentencing considerations are punishment and general and personal deterrence: R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987. His Honour also reviewed at 345 ‑ 354 the decision in a series of cases including Tihema v the Queen, unreported; CCA SCt of WA; Library No 940137; 17 March 1994; Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992; Neal v The Queen (1982) 149 CLR 305; Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993; Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992; and Podirsky v The Queen (1990) 3 WAR 128 at 140 – 141 per Malcolm CJ, Wallace and Walsh JJ.
In "E" v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996, it was held that a total effective sentence of imprisonment for 12 years for 21 sexual offences was not excessive, in the context of the totality principle. Wallwork J (with whom Kennedy J agreed) concluded that the aggregate sentence of 12 years did not offend the totality principle. Neither of their Honours referred to Jarvis (supra). Murray J came to the same conclusion after making a detailed examination of a number of previous decisions. Reference was made by his Honour to Jarvis (supra) at 7, but in the context that the "crushing effect" of a term of imprisonment being a matter to be dealt with, not in terms of the subjective effect of the sentence on a particular offender, but in terms of an objective consideration of the total effect of what is to be done by way of sentencing. At 9 – 10 following a reference to Mill v The Queen (supra), Murray J discussed the totality principle as stated in that case, but made no reference to the "exponential" point.
In De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, the applicant was sentenced for multiple sexual offences against his stepdaughters under the age of 16. The totality principle was considered in the context of sexual offences involving more than one child. A total effective sentence of imprisonment for 10 years was upheld. Ipp J said at 12 that:
"As explained in Jarvis … the sentence should be proportionate to the degree of criminality involved and the severity of a term increases exponentially as it increases in length."
Both Wallwork and Owen JJ agreed with the reasons of Ipp J.
In R v Ogilvie, unreported; CCA SCt of WA; Library No 960643; 8 November 1996, a Crown appeal, the leading judgment was delivered by Murray J. His Honour said at 17 – 19 that, in accordance with the decision in Jarvis (supra), the "last look" which is given to the proposed sentences, may have the effect of reducing the sentences to be imposed because "the severity of a term of imprisonment increases exponentially as it increases in length". Franklyn J agreed with the reasons of Murray J. Owen J would also have allowed the appeal, but would have imposed a lesser sentence than the majority.
In Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996, an aggregate sentence of 4‑1/2 years was imposed in the District Court cumulative upon an aggregate sentence of 5‑1/2 years previously imposed in the Supreme Court. It was held that the aggregate sentence imposed in the District Court should be reduced to imprisonment for 2‑1/2 years on account of the totality principle. Murray J said at 11 that Jarvis (supra) was the "main authority" in which the operation of the totality principle had been discussed by this Court and cited, with approval, the passage in the judgment of Ipp J which explained the reason for the reduction in the overall total sentence was because "the severity of a term of imprisonment increases exponentially as it increases in length". Both Steytler J and I agreed with the reasons and conclusions of Murray J.
In Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 9 July 1997, the applicant was sentenced for multiple sexual offences against his two daughters. There was one series of sentences totaling 13 years for one series of offences by one Judge and, later, a subsequent sentence imposed by another Judge of a cumulative sentence of 2 years and 3 months. On appeal, this last sentence was ordered to be served concurrently with the previous sentences. Walsh J at 205 (with whom Kennedy and Franklyn JJ agreed) quoted with approval the passage in the judgment of Jarvis (supra) at 205 – 207, including the explanation that "the severity of a term of imprisonment increases exponentially as it increases in length".
In De Luce v The Queen (supra) at 12, Ipp J (with whom Wallwork and Owen JJ agreed) referred to the exposition of Anderson J in Woods v The Queen (supra). In Woods at 358, Anderson J concluded at 33 that:
"Although his Honour did not articulate it in his sentencing reasons, there is every reason to believe that in fixing a term of 5 years, his Honour was accommodating the totality principle. Looked at in the light of the range of sentences commonly imposed in this Court, it obviously contained a significant discount and there is every reason to suppose it was a discount made because of consideration that came into play whenever a cumulative sentence is imposed, as to which see the extensive discussion in Jarvis v R (Ipp, Murray and Anderson JJ)."
Seaman and I both agreed with Anderson J concerning the range of sentences commonly imposed in relation to the commission of sexual offences against children and that a series of sexual offences committed over a period of some years, involving digital penetration of the vagina and indecent assaults of various kinds on a single child under the age of 16 by a person in a position of trust can lead to an overall sentence of between 6 and 8 years' imprisonment. Where more than one child was involved, Ipp J at 12 considered that in such a case:
"Anderson J's exposition also demonstrates that where more than one child is involved as a victim, the totality principle may only have a marginal effect in reduction of the overall sentence, particularly where each victim is aware of the degrading or corrupt conduct being perpetrated on the other. As is explained in Jarvis [supra] the sentence should be proportionate to the degree of criminality involved and the severity of a sentence increases exponentially as it increases in length. Where, however, more than one child is subjected to corrupting and degrading criminal behaviour by a person in a position of trust it may well be that the criminality of the conduct increases exponentially by the very fact that serious and long term harm has been caused to more than one child."
In Postiglione v The Queen (supra), McHugh J said at 307 – 308:
"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved . In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
Murray J repeated and applied the exponentially point in Jarvis (supra) in his judgment in R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1999 (with which Walsh and Wallwork JJ agreed). In Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587, 9 October 1998, Murray J (with whom Ipp and Wallwork JJ agreed) said at 24 that:
"As Ipp J noted in Jarvis at p.10 of his reasons the totality principle is effectively concerned with the fact that 'the severity of the term of imprisonment increases exponentially as it increases in length.' "
In Wegner v The Queen [1999] WASCA 26 in a joint judgment, Kennedy, Ipp and Wallwork JJ held that the sentencing Judge had failed to apply the totality principle and at [13] cited with approval the passage in the judgment of Ipp J in Jarvis, (supra), at 10 that "the severity of a term of imprisonment increases exponentially as it increases in length". Their Honours resentenced the appellant in that case saying at [15]:
" … applying the totality principle having regard to the exponential effect of being required to serve the existing 6 year term of imprisonment for the burglary offences, reconsider that the appropriate term of imprisonment for the armed robbery offence would be 6 years."
A month later in Mesiti v The Queen [1999] WASCA 76, the Court of Criminal Appeal (Malcolm CJ, Ipp and Steytler JJ) again applied Jarvis (supra). Ipp J (with whom the other members of the Court agreed) repeated the "exponentially" point at [36] saying:
"Thus the sentence of 9 years imposed on Cofaro should properly be regarded as of greater severity than the same sentence imposed on the appellant simply because it was part of the longer overall sentence to be served by Cofaro in respect of … other offences."
The relevant passage in Jarvis (supra) was applied in Vilai v The Queen [1999] WASCA 275 by Murray J (with whom Kennedy J agreed) at [12]. Pidgeon J dissented. His Honour said, however, at [5]:
"It was made clear in Jarvis v R (1998) 20 WAR 201 that the totality of a sentence must be proportionate to the totality of the criminal behaviour. The learned sentencing Judge was very conscious of this by reaching the conclusion that the totality of the criminal behaviour required a sentence of 14 years' imprisonment. This was a judgment open to him on the evidence he heard. His Honour, in making this assessment, ensured that he did not offend the totality principle. I would refuse leave."
In "D" v The Queen [2000] WASCA 137, the appellant had been sentenced for a number of sexual offences. One of the grounds of appeal was that the sentencing Judge had misapplied the totality principle. Miller J (with whom Pidgeon and Wallwork JJ agreed) referred at [9] to the review of the cases by Anderson J in Woods, (supra), and also referred with apparent approval to the statement of Ipp J in Jarvis (supra) to the effect that the severity of a sentence of imprisonment "increases exponentially as it increases in length".
In Pop v The Queen [2000] WASCA 283 at [26] the relevant statement of Ipp J in Jarvis (supra) regarding the exponentiality point was applied by Wallwork J. In that case, a point arose whether it was open to a sentencing Judge to treat the circumstance of an offence committed by an offender while on bail as an aggravating circumstance. In Pop at [20], Parker J at [33] referred to Veen v The Queen (No 2)(1987) 164 CLR 465 at 477 in which Mason CJ, Brennan, Dawson and Toohey JJ said that it was relevant whether the offence was an "uncharacteristic aberration or whether the offender has manifested in his commission of the offence a continuing attitude of disobedience to the law …". His Honour concluded that it was the latter and held that it was a circumstance of aggravation. A similar conclusion was reached by McKechnie J at [87].

In the meantime, in Pearce v The Queen (1998) 194 CLR 610, in a judgment published on 10 September 1995 McHugh, Hayne and Callinan JJ said at [43] – [45]:
"43.The trial Judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
44.Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
45.To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality: Mill v The Queen (1988) 166 CLR 59."
In R v Quartermaine [2000] WASCA 341, Wheeler J (with whom Kennedy J agreed) referred to Jarvis (supra) and commented at [31] that in the context of the totality principle:
"… it is necessary to bear in mind that the burden of a sentence of imprisonment increases exponentially as the length increases. For that reason, a sentence imposed in respect of a later offence, where the offender is already in custody for other reasons, may when added to the sentences imposed in respect of those earlier offences, have a 'crushing' effect which it would not have if considered on its own."
In Blight v The Queen [2001] WASCA 122, Kennedy J (with whom Wallwork and Murray JJ agreed) concluded at [108] that no error in the approach adopted by the sentencing Judge had been identified. That approach included the following as stated by Kennedy J at [106] – [107] namely:
"[106]Her Honour acknowledged that the severity of a term of imprisonment increases exponentially as it increases in length, referring to Jarvis v The Queen (1993) 20 WAR 201. She indicated that the sentence she imposed was required to reflect community abhorrence of the type of behaviour in which he had engaged. She also indicated that the sentence must punish the applicant and deter him from behaving again as he did towards C. Her Honour might well have added the need for the sentence to serve as a general deterrent to others who might be tempted to act in a similar manner, as to which see R v BJW (2000) 112 A Crim R 1 at 6. There was little by way of mitigation in the circumstances. As her Honour pointed out, one of the tragedies of the case was that a family unit had been destroyed, and the indications were that it was unlikely to be repaired.
[107]The applicant's contention that all the sentences should have been ordered to be served concurrently cannot be accepted. The individual sentences are at the lower end of the scale, and there is no basis for any suggestion that the offences all formed part of the one 'transaction' so as to justify concurrency. It is apparent that the learned sentencing Judge had regard to the principle of totality when fixing the sentence which she did. She did so by carefully directing concurrency when offences occurred close in time to one another so that they could reasonably be described as together comprising a single incident."
In Boudville v The Queen [2001] WASCA 133 in my judgment (with which Wallwork and Murray JJ agreed) at [31] it was noted with approval that:
"The learned Judge approached the sentencing task on the basis that the sentences imposed should be proportionate to the degree of criminality involved taking into account that the severity of a term of imprisonment increases exponentially as the criminality increases. This impact, of course, could be tempered by the application of the totality principle, although the criminality of the offender is higher where there is a consistent course of sexual abuse involved: cf Podirsky (1989) 43 A Crim R 404."
In that case the Court concluded that the sentences imposed, whether looked at individually or in their totality, were well within the range of the proper exercise of the sentencing discretion.
In Ugle v The Queen [2001] WASCA 268, the relevant passage in the judgment of Ipp J in Jarvis (supra) was applied in my judgment (with whom Steytler J and Burchett AUJ agreed) at [44] – [45].
In Ricciardello v The Queen [2001] WASCA 416, the appellant was sentenced to imprisonment for 4 years for robbery with violence, 5 years concurrent for deprivation of liberty (kidnapping) and 7 years 9 months cumulative upon a sentence already being served, making a total of 13 years and 9 months without parole. This in turn was cumulative upon a sentence of 6 years and 22 days for breach of parole making an overall total sentence of 19 years and 9 months. None of the individual sentences were held to be manifestly excessive, but the totality principle was not taken into account in relation to the sentence for breach of parole. The total sentence was reduced to 16 years and 9 months on account of the principle.
It was argued, during the appeal, that the "exponentiality" point in Jarvis (supra) had not been taken into account. In my judgment, at [19], I concluded that none of the individual sentences were excessive, but that the totality principle should have been taken into account in respect of all of the sentences. Anderson J said at [41] that he agreed with my judgment. His Honour, however, questioned the proposition that the severity of a sentence "increases exponentially as it increases in length", which had been adopted by Ipp J in Jarvis (supra) at 207 with the concurrence of Murray J at 213. Anderson J then said at [43] – [45]:
"43I would respectfully regard these observations as obiter dicta. They state a proposition which I do not regard as self-evident and, so far as I have been able to discover, cannot be found in the leading texts on the theory of sentencing. With the greatest respect, I cannot subscribe to it.
44I do not consider it to be the law that Judges must sentence on the basis that the severity of a sentence increases exponentially as it increases in length. The totality principle does not, in my respectful opinion, spring from or depend on any such thesis. The totality principle is, I believe, but an aspect of the sentencing process which recognises that if the sentencing court mechanically hands down successive sentences with respect to a series of offences, the resulting aggregate might punish the offender excessively even if each individual sentence is just. The principle of totality simply requires the court to remember that "the totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with": Larsen v The Queen (1989) 44 A Crim R 121 per Badgery-Parker J at 125. See also R v Todd [1982] 2 NSWLR 517 per Street CJ at 519 - 520; Mill v The Queen (1988) 166 CLR 59 at 63.
45As Street CJ said in Todd (loc cit) it is probably not possible to lay down the general principle any more specifically."
In Abela v The Queen [2002] WASCA 279, the applicant had been convicted on his plea of guilty and sentenced on six counts of manufacturing a prohibited drug. Concurrent sentences of 7 years were imposed for each of the six offences. On appeal, the sentences were varied. The applicant had relied on Jarvis (supra), and, in particular, the "exponentiality" point as noted in my judgment at [48] – [49]. Reference was also made to Greenburg (1993) 68 A Crim R 392 at 408 per Kennedy, Pidgeon and Rowland JJ where their Honours said:
"His Honour imposed, in respect to each individual offence, a moderate sentence clearly with the totality principle in mind. In Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993, Ipp J, when considering the principle of totality analysed recent authority including Mill v The Queen (1988) 166 CLR 59 at 62- 63. Ipp J referred to the rule that in taking "a last look" at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved and that principle is basic to the law of sentencing. An application of the totality principle must not erode this important aspect. We are not persuaded that his Honour was in error in imposing the sentence he did on the first indictment subject to his giving a greater credit to the plea of guilty. His Honour very carefully analysed all factors."
While, with the agreement of Wallwork J, I was prepared to restructure the sentences in Abela (supra), the total sentence was not in the end reduced. Wallwork J and Steytler JJ were of the same view.
It will be apparent from the course of decisions since Jarvis (supra) that the exponentiality point has been approved and applied in a significant number of cases and adopted on a number of occasions in this Court by me and by Kennedy, Pidgeon, Rowland, Franklyn, Seaman, Walsh, Ipp, Wallwork, Murray, Owen, Scott, Steytler, Wheeler and (at least on the face of it) by Miller JJ, as well as by Burchett AUJ and Einfeld AJ.
In my opinion, with all due respect, given that the decision in Jarvis has in the past been approved, adopted and applied by so many members of the Court over a period of some 10 years since it was decided on 14 June 1993, 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. If Jarvis is to be overruled or departed from, I consider that is a step which should be taken, if it is to be taken at all, by a bench constituted by five Judges of the Court.
In this context, it is also necessary to consider the implications for Western Australian courts of the decision of the High Court in Wong v The Queen (2001) 185 ALR 233. This issue was considered in R v Place (2002) 189 ALR 431 by the Court of Criminal Appeal of South Australia early in 2002 by a bench of five Judges, namely, Doyle CJ, Prior, Lander, Martin and Gray JJ. The Court was unanimously of the opinion that it was not the practice in South Australian courts, when determining the extent of the reduction in sentence for a plea of guilty accompanied by certain considerations, to attempt to separate out one or more of such considerations. However, it was the practice to identify the specific reduction given, taking into account the timing of the plea, contrition, co‑operation with and assistance to the authorities: R v Harris (1992) 59 SASR 300; R v Wiskich (2000) 207 LSJS 431; R v Wall (2000) 209 LSJS 135.
It was further held that the "mathematical" two‑stage approach with which the High Court was concerned in Wong was not the process which had been approved and adopted in South Australia with respect to reduction of sentence for guilty pleas. Consequently, the Court of Criminal Appeal of South Australia was not constrained by authority to hold that the existing practice in South Australia was wrong: R v Place (supra) at [80] per Doyle CJ, Prior, Lander and Martin JJ with whom Gray J agreed at [118]. In that case, the sentencing Judge imposed a sentence of 11 years and 6 months with a non‑parole period of 7 years and 6 months in respect of six offences of armed robbery, four of failing to comply with bail; three of illegal use of a motor vehicle and two of threatening with a firearm. The appellant appealed on the grounds that (a) tariff sentences had been imposed based purely on the objective circumstances of the offences without regard to the individual circumstances of the offences and the appellant; (b) the application of the totality principle; (c) adopting a "two‑stage" process; and (d) identifying specific reductions.
It followed that the existing practice in South Australia should continue. It was further held at [90] that the sentencing Judge erred in applying the totality principle to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the guilty plea.
In Place the sentencing Judge adopted what has been called the "two‑stage approach". In that context, use was also made of s 18A of the Criminal Law(Sentencing) Act 1988 (SA) which enables a single sentence to be imposed in respect of multiple offences. As appears from par [2] of the joint judgment on appeal, the sentencing Judge then said:
"Armed robbery in circumstances such as these normally attracts a head sentence of six to eight years.
In the circumstances of the six offences of armed robbery, together with the matters for which consideration is sought, and the offences of breach of bail charged on complaint, I would start with a sentence of 32 years imprisonment. The principle of totality requires that this be reduced. I consider an appropriate starting point is 22 years imprisonment.
From this you are to receive credit for the matters I have mentioned; your confession, which enabled the solving of several offences and saved significant police and court time, your subsequent immediate pleas of guilty and acknowledgement of the other considerations and your contrition."
His Honour allowed a 40 per cent reduction for the plea of guilty and co‑operation and said that further credit should be given for the appellant's involvement in the Drug Court programme. These credits resulted in a head sentence of 12 years from which he deducted 6 months for time spent in custody or on home detention bail, resulting in a sentence of 11 years and 6 months' imprisonment. The judgment in Wong (supra) was delivered three days later. As their Honours in the Court of Criminal Appeal of South Australia noted in Place (supra) at [5], the conclusion of the High Court in Wong (supra) was that the guideline judgment went beyond the jurisdiction of the Court of Appeal of New South Wales. The joint judgment in Place (supra) also noted at [5] that Gaudron, Gummow and Hayne JJ had disapproved of the "two‑stage approach" to sentencing, saying that it was "wrong in principle". As a consequence, the Court of Criminal Appeal of South Australia considered at [6] that the decision in Wong required the Court:
"… to examine its approach to the fixing of a standard for the crime of armed robbery and to determine whether it is an error for a sentencing judge to identify a specific reduction for a plea of guilty and whether this court has been in error in encouraging sentencing courts to do so."
In terms of the fixing of a standard, Gaudron, Gummow and Hayne JJ identified at [56] two steps in the reasoning of the NSW Court of Appeal, namely:
"That the result of sentencing an offender is an aspect of the discretionary decision and that the weight of the narcotic imported is the chief factor to be taken into account in fixing the sentence to be imposed on a person knowingly participating in the importation."
Their Honours concluded that this approach was inconsistent with the provisions of Pt 1B of the Crimes Act 1914 (Cth). In particular, s 16A identifies a wide range of matters to be taken into account. The "grid" which comprised the basis of the guideline was regarded by their Honours as:
"… founded entirely on gravity of the offence as measured only by the weight of narcotic concerned."
This was a departure from the provision of s 16A which required that the sentencing Judge took into account all of the factors identified in s 16A, which was in similar terms to s 10 of the Criminal Law (Sentencing) Act 1988 (SA).
In pars [14] – [20] of the joint judgment in R v Place (supra), their Honours said:
"By way of contrast to the strictures of the guideline under consideration, Gaudron, Gummow and Hayne JJ compared what was said by the majority of the Full Court of this state in Police v Cadd (1997) 69 SASR 150. In Cadd the Full Court gave authoritative guidance to magistrates about the type of punishment that should ordinarily be imposed by magistrates when sentencing persons convicted of driving a motor vehicle while disqualified from holding or obtaining a driving licence. The guidance related to actual imprisonment rather than a suspended sentence and no suggestion was made about the length of the sentence that should be imposed. Their Honours observed that the real content of the guidance lay in the reasons which were given for the stated conclusion. Their Honours said (at 249 [63]):
[63] The reasons focused upon the nature of the offence, the consequences of its commission, and the purpose of punishing its commission. Thus, Doyle CJ identified the offence of driving while disqualified as 'erod[ing] disqualification as a means of punishment' [ (1997) 69 SASR 150 at 162], especially when regard was had to the fact that a person driving while disqualified would ordinarily be detected only when the attention of police was attracted for some other reason. Reference was made to various other relevant considerations that might bear upon sentencing, such as the offender's character, age, contrition and the like, or the impact of imprisonment on the offender’s employment [ (1997) 69 SASR 150 at 168], but the detail of the treatment of these matters is not important. Having regard to the nature of the offence, the consequences of its commission, and the purpose of punishing its commission, Doyle CJ concluded that deterrence must predominate in sentencing for the offence [ (1997) 69 SASR 150 at 166]. That being so, as Doyle CJ said, [ (1997) 69 SASR 150 at 167], 'circumstances justifying suspension [of a term of imprisonment] are unlikely to be found in what are routine or run of the mill aspects of the circumstances of this offence.' What is to be noted is that the court articulated the reasons which it had for disposing of the appeals before it by reference to the principles which informed those dispositions. It is those principles which properly guide future sentencers. [emphasis added]"
In Cadd (supra) five Judges of the South Australian Court of Criminal Appeal confirmed the role of the appellate court "in setting standards of penalty". Doyle CJ said at 165:
"It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type."
In my opinion, that is an approach which is entirely consistent with the approach adopted by this Court in cases such as Podirsky v The Queen (supra); Woods (supra); Jarvis (supra); Salisbury v The Queen (1994) 12 WAR 452; Hodder v The Queen (1995) 15 WAR 264; Sell v The Queen (1995) 15 WAR 240 (sexual offences); Krakouer v The Queen (1996) 16 WAR 1; Mankovina v The Queen (No 2) (1997) 19 WAR 119; and Heryardi v The Queen (1998) 19 WAR 383 (drug offences); Miles v The Queen (1997) 17 WAR 518; Roser v The Queen (2001) 24 WAR 254 (armed robbery).
Unlike the Court of Criminal Appeal in South Australia, this Court is also specifically empowered by s 143(1) of the Sentencing Act 1995 (WA) to give a guideline judgment containing guidelines to be taken into account by Courts sentencing offenders. Such a judgment may be given in any proceeding considered appropriate by the Court giving it, and whether or not it is necessary for the purpose of determining the

So far as I am aware Magee v The Queen (supra) has never been disapproved let alone overruled. In itself it represents a restatement of principles which can be traced back in time to at least 1973 in the judgment of this Court in Thomson v The Queen, unreported; CCA SCt of WA; 19 March 1973.
I would add that my preference for this as the main rationale of the principle of totality was stated and explained in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 with which judgment Pidgeon and Ipp JJ expressed their unqualified agreement.
So in my respectful opinion the only question is whether a total aggregate sentence of 15 years' imprisonment is disproportionate in its length to the overall criminality in the 33 offences for which the applicant comes to be punished.
Mr Young submitted that it was wrong to make the sentences on the indictment offences cumulative upon the sentences with respect to the s 32 Notice offences. This submission involves the misconception to which I have already referred. It invites us to view the case as if the sentences with respect to the offences on the indictment were being passed in a sentencing exercise separate from the sentencing on the s 32 Notice. Mr Young submitted that we should view the case in that way and review the sentences with the principle in cases such as Wegner v The Queen [1999] WASCA 26 in mind, the principle being that when a second sentencing court is dealing with a prisoner who is already serving a term of imprisonment the second sentence must usually be adjusted downwards. The second sentencing court, having arrived at an appropriate aggregate sentence for the crimes which are before it, will usually reduce that sentence where the prisoner is already serving a sentence on which the second sentence must be cumulative. It is a well established principle which was extensively discussed in Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 and in Mill (supra). It is, however, but a particular application of the totality principle. The object is to achieve proportionality between the total of the first and second sentences and the total of the criminality involved in all the offences.
This is an aspect of the totality principle which does not come into consideration in this case. White AUJ was not acting as a second sentencing court. He was sentencing for all of the offences as a single exercise and in so doing he did what the totality principle obliged him to do. He judged the criminality involved in the whole of the applicant's offending and he adjusted the aggregate of the 33 sentences which it was his duty to impose. There was no obligation upon him to do any more than he did. The aggregate sentence of 15 years was arrived at on the Judge's evaluation of the overall criminality involved in all 33 offences.
As I have already said, the question is whether the downward adjustment which he made was sufficient - more accurately, whether it produced a sentence which was disproportionate to the applicant's criminality viewed as a whole. Undoubtedly it is a lengthy sentence from any point of view but I am not persuaded that it is manifestly excessive. There were two armed robberies for which the maximum penalty in each case was life imprisonment. There were four offences of stealing, each carrying a maximum sentence of 7 years' imprisonment. There was an offence of receiving stolen property carrying a maximum penalty of 14 years' imprisonment. There were seven offences of fraud each carrying a maximum penalty of 7 years' imprisonment. There were four offences of burglary each carrying a maximum penalty of 18 years' imprisonment. There were two threats to injure each carrying a maximum penalty of 3 years' imprisonment. In addition, there were sundry other offences some of them not much less serious. The possession of the loaded unlicensed shotgun carried a maximum penalty of 12 months' imprisonment. The offence of assault carried a maximum penalty of 18 months' imprisonment and possession of amphetamines carried a maximum penalty of 2 years' imprisonment. Many of these offences were committed while the applicant was on bail. I think this is sufficient to show that an aggregate term of 15 years cannot be described as manifestly excessive or beyond the exercise of a sound sentencing discretion.
Finally, I come to Mr Young's submission that because many of the charges that were on the s 32 Notice might have been dealt with by way of summary conviction in the Court of Petty Sessions whereupon the applicable maximum penalties would have been much less, it is the lesser maximums that fall to be considered in reviewing the severity the sentences passed by White AUJ. I cannot accept this submission. By s 33(3) of the Sentencing Act it is provided that:
"A sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment."

That section seems to me to preclude this Court from taking any other approach than that the correctness of the sentences passed by White AUJ is to be judged as if those sentences had been imposed following conviction on indictment.
Mr Young argued that this approach is calculated to subvert the policy considerations underlying s 32 in as much as it must work as a disincentive. Offenders are unlikely to use the s 32 procedures to have charges pending in the Court of Petty Sessions and which may be dealt with on summary conviction brought before the superior courts for fear that they will receive much greater sentences in the superior courts than if the charges had remained in the Court of Petty Sessions. These same arguments were advanced in Rafferty v The Queen [2002] WASCA 312 and were rejected by this Court for reasons explained by Murray J at [18].
In my opinion, the application for leave to appeal should be dismissed.
MILLER J: On 15 May 2002 the applicant was convicted by a jury of the crime of armed robbery in company. That day he pleaded guilty to further indictable offences, being robbery whilst armed and possession of a firearm which had been altered from the design of its original manufacture. On 17 June 2002 the applicant pleaded guilty to a further 30 offences pursuant to the provisions of s 32 of the Sentencing Act 1995. These offences had been committed during the period September 2000 - April 2001. The indictable offences had been committed between 14 and 31 May 2001.
The pleas were dealt with by White AUJ who, on 21 June 2002, sentenced the applicant to an effective term of imprisonment of 15 years, with an order for eligibility for parole. The sentences were backdated to commence from 31 May 2001. In addition to the sentences of imprisonment there were fines totalling $1700.
The longest terms of imprisonment imposed by the learned trial Judge were for armed robbery in company (8 years), armed robbery (6 years), burglary of a habitation (5 years on each of four counts), stealing (3 years), fraud (2 years on each of six counts) and offences of threat to injure (2 years on each of two counts). The sentences of 5 years' imprisonment imposed in respect of each of the four offences of burglary of a habitation were ordered to be served concurrently with each other, but cumulatively on the sentence of 8 years imposed for armed robbery in company. The sentences in relation to the offences of threatening to

injure were ordered to be served concurrently with each other but cumulatively on the sentence in respect of the offence of armed robbery in company and the offences of burglary of a habitation. All other sentences were ordered to be served concurrently with each other and with the sentences imposed for those that I have just mentioned. This led to the result of an effective 15‑year term.

The applicant seeks leave to appeal against sentence on two grounds. The first is that the sentence of 5 years' imprisonment imposed for each of the four burglary offences was manifestly excessive and the second that the sentences imposed for the offences of burglary and threatening to injure should not have been made cumulative on each other and on the sentence imposed for armed robbery in company. Particulars in relation to these grounds assert (inter alia) that the circumstances of the offences of burglary of a habitation were not of the upper end of the scale; there had been no conviction for burglary since 1996; there had been a plea of guilty in relation to the offences; and the applicant had youth on his side. Particulars in relation to the second ground contend that a total sentence of 7 years' imprisonment for the offences the subject of the s 32 notice was manifestly excessive for the reasons outlined in relation to the first ground; the imposition of a sentence of 7 years' imprisonment cumulative on the 8 years for armed robbery in company was contrary to the totality principle; there was no apparent reduction in the sentences imposed on the s 32 notice for the plea of guilty; and the learned trial Judge erred in sentencing the applicant for the s 32 offences by having regard to the maximum as if the applicant were convicted of indictment, rather than as if he were convicted summarily.
The learned trial Judge prepared detailed sentencing remarks. These were reduced to writing and covered some 16 pages of typed script. They were furnished to the applicant at the time of sentencing in order that he could understand the structure of the sentences which had been imposed.
The sentencing comments set out in considerable detail the facts of the various matters in relation to which there had been either a conviction or plea of guilty. The Crown prosecutor's statement of facts was reproduced and in itself comprises some 10 pages. It is unnecessary that all these facts should be repeated and it is sufficient to make reference only to the facts of the more serious offences.
The offence of armed robbery in company involved the applicant acting as lookout for his brother who entered a Caltex service station armed with a rifle. He held up and robbed the owner of the service station shop (where there was an assistant present) and ran off accompanied by the applicant. For this offence a term of 8 years' imprisonment was imposed, which is within the middle of the range of sentences commonly imposed for the offence of armed robbery in company before mitigating circumstances are taken into account. Although the applicant acted as lookout and was not the person who entered the Caltex service station with the rifle, the applicant had pleaded not guilty to the offence and had clearly been aware of the fact that his brother was, at the time of entering the Caltex service station, armed with a rifle.
It cannot be said that the sentence imposed was outside the range of sentences that could have been imposed by the learned trial Judge, particularly as this Court has said in cases of armed robbery in company, greater weight should be given to the requirement of deterrence and less to antecedents and other matters personal to the offender unless there are exceptional circumstances: Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ at 521. The Chief Justice made a particular point (at 521) that in the case in question, the victims were "both persons in a vulnerable position in endeavouring to provide a service to the community at night". Although it is not clear from the learned trial Judge's sentencing comments whether this offence occurred at night, the point to be made is that those who operate service stations and shops associated with service stations, provide a service to the community at all hours and are entitled to the protection of the law to the point where armed robberies in company (particularly associated with the use of a firearm) should result in severe deterrent sentences. This was such a sentence, and in my view, standing alone it cannot be said that it was excessive.
The count of armed robbery committed by the applicant without any co‑offender was also a serious one. There, the applicant entered a pharmacy on a Monday morning at 11.30am armed with a sawn‑off shotgun with which he proceeded to threaten the pharmacy assistant and order customers to lie on the floor whilst money was taken. There were several women in the store, one of whom had a child in a pram. During the course of the robbery the applicant informed the pharmacist that the shotgun was loaded and operated the mechanism to suggest that it was being cocked. The weapon was pointed directly at the pharmacist. In relation to this offence the learned trial Judge imposed a sentence of 6 years' imprisonment, which was, in all the circumstances of the case, a lenient sentence. It had no doubt reflected the fact that the applicant had pleaded guilty to this particular offence. Under no circumstances could it be said of itself to have been an excessive sentence.
The burglary offences involved the burglary of places of habitation. The offences occurred successively on 27 March, 30 March, 1 April and 3 April 2001 and the modus operandi was similar in each case. In relation to the first offence the applicant smashed a sliding kitchen window of a house in Wanneroo, entered the house, rummaged through all rooms and cupboards and stole property to the value of $465. In relation to the second, the applicant forced a bedroom window of a house in Wanneroo and once inside the house stole a watch, jewellery and cash to a total value of $1225. The third offence was in the same area. On this occasion the applicant got into the house through the main bedroom window and once inside, rummaged through drawers and rooms before leaving with jewellery to a total value of $5000. The fourth offence occurred in Currambine where the applicant again entered a bedroom and once inside the house stole a Myers card and four cheques.
All offences of burglary of a habitation were offences against s 401(2)(b) of the Criminal Code, which provides that any person who commits an offence in the place of another when in that place without that other person's consent, is guilty of a crime and liable if the place is ordinarily used for human habitation (but the offence is not committed in circumstances of aggravation), to imprisonment of 18 years. The penalty of 18 years was written into the section in 1996 in what was a clear intention on the part of Parliament to increase substantially the penalties for burglaries of ordinary residential homes.
Burglary generally has been an offence for which sentences have been firmed up in recognition of the prevalence of the offence and the wide community concern about that prevalence. Less than four years ago, in R v Ward (1999) 109 A Crim R 159, Malcolm CJ (at 160) stressed the community concern about the prevalence of burglary and the need for a firming up of penalties. His Honour said:
"The courts in this State have taken the view for some considerable period that the offence of burglary is a serious offence, the prevalence of which has been the subject of considerable community concern. In a number of cases the court has held that the range of sentences imposed for burglary offences when they are committed on people's homes, particularly when persons are present at the time when the offences are committed, should be firmed up: Pezzino (1997) 92 A Crim R 135 per Franklyn J at 138; and per White J at 148; Nguyen and Tran [1999] WASCA 54 per Kennedy J at [11]; and Heferen (1999) 106 A Crim R 89 at 97‑98 [35] per Anderson J.
Parliament recently singled out the offence for special treatment by increasing the maximum penalties for domestic burglaries in 1996. It is necessary that courts give effect to the reasons for these changes: see Peterson [1984] WAR 329; (1983) 11 A Crim R 164 per Burt CJ at 334; 169."
In the same case, Malcolm CJ pointed out the requirement that generally speaking, unless the totality principle requires otherwise, cumulative sentences would be imposed for separate and distinct offences of the type committed here by the applicant. His Honour said (at 160‑ 161):
"The respondent is extremely fortunate to have been given such light sentences for these offences. Both of them were of an aggravated kind. They were, however, committed almost a year apart. While it is appropriate to order that a number of offences arise out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively: Ruane (1979) 1 A Crim R 284 per Wallace J at 286; Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; and Van Thong Dao (unreported, Court of Criminal Appeal, WA, No 106 of 1998, 22 January 1999) per Murray J at pp 15‑16."
The offence of stealing within houses ordinarily used for human habitation (burglary of dwellings), is certainly at epidemic proportions in Western Australia. The Western Australian Police Service report on "Reported Crime in Western Australia 2002 Calendar Year (January 2003)" reveals that there were 40,749 residential burglaries reported in the year 2002. This was an increase of 1.4 per cent compared with 2001 (40,196) although a decrease of 1.4 per cent when compared with 2000 (41,313). Unfortunately, the "clearance rate" for the year 2002 was only 14.9 per cent. It represented an increase over 2001 (13.9 per cent) and over 2000 (13.4 per cent) but it is on any view of it, a very low clearance rate. Further, the Report reveals that the offence of burglary of a dwelling was second only to the offence of theft as the most commonly committed offence during 2002. There were 97,456 instances of theft.
In my view the sentences of 5 years' imprisonment imposed in each of the four cases of burglary of a place of habitation were well within the range of sentences that could have been imposed. In the light of what was said by Malcolm CJ in R v Ward about the need to firm up sentences for the offence of burglary committed on people's homes, it is difficult to see how a sentence of 5 years' imprisonment, representing only a little under 30 per cent of the maximum penalty that could have been imposed, can be said to be manifestly excessive. In my view the sentences of 5 years' imprisonment were well within the range that could have been imposed for each of the offences of burglary and each properly demanded a sentence of that length. The value of the property taken in each instance may have varied, but this was purely fortuitous, as the appellant was clearly determined to steal whatever was there for the taking. I need only add that the theft of jewellery in two of the cases was particularly serious, as the loss to women householders of their jewellery is often one of the hardest things for them to bear in burglaries. Invariably (as here), the jewellery is never recovered and includes items of irreplaceable value. Although it is true that these were offences that could have been dealt with summarily, in which event the maximum term of imprisonment that could have been imposed was 3 years, this is irrelevant where a superior court is sentencing for the offence in question: Rafferty v The Queen [2002] WASCA 312. Indeed, this case effectively disposes of the particular of the second ground of appeal which contends that the learned trial Judge erred in imposing sentences available on indictment when the offences were the subject of a s 32 notice. Murray J (at [15] with whom Anderson J and Burchett AUJ agreed) dealt with the matter by pointing out that s 33(2) of the Sentencing Act gives to this Court a sentencing power equated with the jurisdiction of the Court in respect of a charge of an offence otherwise before the Court on indictment. If an offender chooses to have matters dealt with in this way, that is the result at law.

The offences of threatening to injure were punishable by a maximum term of imprisonment of 7 years (s 338(b) of the Criminal Code). They were serious offences which involved threats to injure the occupants of houses which had been burgled by the applicant and in circumstances where he produced a knife and threatened to stab those persons unless they withdrew the accusations that had been made against the applicant. The sentence of 2 years' imprisonment in relation to each such offence was well within the range of sentences open to the learned trial Judge.
For the offence of stealing for which the applicant was sentenced to 3 years' imprisonment (which was not a cumulative sentence), the facts revealed that the applicant had stolen from the glovebox of a locked vehicle a cheque book containing three blank cheques. Subsequently, in relation to matters the subject of charges of fraud, the applicant had presented these cheques for payment receiving $860 on two separate occasions and attempting to obtain a further $860 on the third occasion. In these circumstances the sentence seems to me to have been entirely appropriate.
It is unnecessary to refer in detail to the offences of fraud (in relation to which 2 years' imprisonment on each count to be served concurrently was generally imposed), and numerous other offences in which sentences of imprisonment of 1 year or less were imposed.
The question which then arises is whether the sentence offended the totality principle. This principle was explained in Jarvis v The Queen (1998) 20 WAR 201 and in simple terms it is that the Court must look at the totality of the criminal behaviour committed by an offender and ask itself what is the appropriate sentence for all the offences (see particularly Jarvis v The Queen per Murray J at 211). Another way of putting it is that the Court should take "a last look" at the total imprisonment imposed to ensure that the sentence is not crushing and is proportionate to the degree of criminality involved (see Jarvis v The Queen (supra) per Ipp J at 206).
In my view the learned trial Judge carefully structured the sentence ultimately imposed upon the applicant and took into account all relevant matters. Although counsel for the applicant complains that pleas of guilty in relation to the s 32 notices were not specifically taken into account, it seems to me that they clearly were. The learned trial Judge made reference to a 25 per cent discount for the plea of guilty in relation to all matters where there had been a plea of guilty. These included the offences which were the subject of the s 32 notice. Further, his Honour made specific reference to "the totality principle" in structuring the sentences of imprisonment as he did.
I am of the opinion that the learned trial Judge rightly described the totality of the applicant's criminal conduct as an "appalling catalogue of criminal acts". I consider an effective sentence of 15 years' imprisonment to have been entirely within the exercise of a sound discretion and one in respect of which this Court should recognise the peculiar discretion which resided in the learned trial Judge. It was put by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 2 as follows:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
For these reasons I would grant leave to appeal but dismiss the appeal.