Kellerman v Pecko

[1996] QCA 366

IN THE COURT OF APPEAL	[1996] QCA 366
SUPREME COURT OF QUEENSLAND

C.A. No. 244 of 1996.

Brisbane

[Kellerman v. Pecko]

D J KELLERMAN

v.

WAYNE ALLAN PECKO

(Applicant) Appellant

___________________________________________________________________

Pincus J.A. Dowsett J. Fryberg J.

_____________________________________________________________________

Judgment delivered 04/10/1996

Separate Reasons for Judgment of each member of the Court; Pincus J.A. dissenting. _____________________________________________________________________

APPLICATION GRANTED. APPEAL ALLOWED. SET ASIDE THE ORDER OF THE MAGISTRATE. ORDER THAT THE APPELLANT BE ADMITTED TO PROBATION FOR A PERIOD OF THREE YEARS, SUBJECT TO THE APPLICANT’S CONSENT. _____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - sentenced for a number of offences -

Magistrate erred in concluding that he could not combine a suspended sentence with an order for restitution - unrelated offences - sentence appropriate to reflect overall criminality.

Counsel:	Ms D Richards for the applicant/appellant. Mr J Henry for the respondent.
Solicitors:	Legal Aid Office for the applicant/appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	10 September 1996.
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 04/10/1996

This is an application for leave to appeal against sentence. On 3 June 1996 the applicant was convicted, on a plea of guilty, of an offence of stealing and sentenced to 2 months imprisonment plus 3 years probation; the applicant contends this penalty is excessive. He was born on 1 March 1975 and was 20 years of age when he committed the offence in question; he is now 21.

The applicant’s history of offences and court appearances is as follows. In November 1994 he committed an offence of doing wilful and unlawful damage to property. In March 1995 he was arrested on charges of behaving in a disorderly manner and on an insulting words charge; he was due to appear in the Magistrates Court on 6 March 1995 but did not do so and his bail was forfeited. Later that month he stole a signed cheque from his grandfather; the amount was blank and he completed it to a value of $2,500. The cheque was banked and he spent the $2,500. It is this cheque offence which is the subject of the present application.

In August 1995 a bomb threat was made by telephone in relation to a school; that was done by another person, with the agreement of the applicant, using the phone at his home. This constituted another offence, dealt with by the magistrate at the same time as that which is the subject of the present application. In November 1995 the applicant appeared in the District Court charged with the offence of wilful and unlawful damage to property committed in November 1994; he was sentenced to 120 hours community service, but had performed none by the time he came before the court charged with the subject offence. It was said that his not having performed any of the service was due in part to bad administration; the magistrate was not satisfied with this excuse and nor am I. In October 1995 the applicant was to appear in the Magistrates Court in respect of the telephone offence and the stealing charge; he failed to appear and a warrant was issued for his arrest. In respect of his failure to appear he was later convicted and fined. In December 1995 there were made four fine option orders totalling 107 hours community service, but only 18.45 hours had been completed by June 1996. In January 1996 the applicant committed three other offences which came before the court at the same time as the stealing charges and the bomb threat charge; they were evading a cab fare, assaulting the driver of the cab and damaging the cab.

On 3 June 1996 he was convicted of all five offences - the three just mentioned and the stealing and bomb threat offences. The magistrate as I have mentioned sentenced the applicant to 2 months imprisonment on the stealing charge followed by 3 years probation. In respect of the offences other than the stealing, the sentences were of probation only. In the course of giving his reasons for these orders the magistrate remarked:

" . . . I am not in a position to be able to make an order with regard to restitution in conjunction with a period of suspended sentence, so I have looked to the options available to me and that is the reason why I am ordering a term of imprisonment . . . "

It was contended in this Court that the reasoning quoted was erroneous and necessitated a reconsideration of the sentence. I have been unable to understand the reason for the magistrate’s remark; it seems clear that his Worship could have both imposed a suspended sentence and made an order for restitution.

The principal point of the application is, as it seems to me, that the applicant committed the offence in question, stealing, about the end of March 1995 and prior to that he had committed, but not been convicted of, the offence of wilful and unlawful damage to property, and had failed to appear on an insulting words charge and a charge of behaving in a disorderly manner; that is, so far as his record shows, he had no prior convictions. In the circumstances it would, were there nothing else in the case, plainly be wrong to send such a young man to prison, for the first time. The questions in the case are, as it seems to me, whether in determining the sentence for the stealing charge the court was entitled to take into account the offences subsequently committed, in August 1995 (the bomb threat) and in January 1996 (the offences relating to the cab driver).

Where an offender has committed a number of distinct, unrelated offences, all of which come to be considered by the sentencing court at the same time, an appropriate total sentence may be able to be arrived at by making some of the sentences cumulative; there is no means of making them partially cumulative. Another approach which appears commonly to be taken is to fix a sentence for the most serious offence which is higher than that which would have been fixed had it stood alone; the higher sentence takes into account not only the most serious offence, but all the other offences. Sometimes the court will fix, in respect of each of the lesser offences, its own particular penalty, but on occasions the court does not trouble to do that and simply fixes one penalty for all the offences, although they are of varying seriousness, the penalty fixed being regarded as appropriate for the sum total of the criminality involved.

In McInerney (1986) 42 S.A.S.R. 111, King C.J. held in effect that a judge sentencing for offence A may take into account a later offence B, but only in special circumstances; his Honour instanced cases of which "the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence" and where "the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required". Cox J. focused on subsequent convictions, rather than subsequent offences, and held that they might be taken into account in some cases (124). The reasons of Cox J. contain a useful analysis of previous decisions on the point; it appears that his Honour was focusing on instances in which the offender has already been convicted and punished for offence B; still, his having committed offence B may be taken into account, in appropriate circumstances, to enhance the sentence which would otherwise have been imposed for offence A. It appears to me that, if this is right, then the same should apply in cases such as the present where offences A and B come before the court at the same time.

In Papoulias [1988] V.R. 858, the appellant was convicted of four counts of trafficking in heroin and a sentence of 7 years imprisonment was imposed on each account. It was argued that the judge should have considered each offence separately; the amount of heroin involved in the last offence was about four times that involved in the first. The Victorian Full Court held that the judge was not obliged to differentiate between the offences, but was entitled to "impose the appropriate punishment for the total episode". It seems to me that this is equivalent to saying that in appropriate circumstances the penalty for offence A may be fixed at a level appropriate to offences A and B together.

Papoulias differs from the present case in that there all the offences were of the same kind and committed within a period of 10 days. The offences considered by the New South Wales Court of Criminal Appeal in Holder and Johnston (1983) 13 A.Crim.R. 375 were also interrelated. There, Street C.J. referred to the principle of totality as necessitating "some telescoping to the individual terms" (389). His Honour went on to say that the totality principle would produce an aggregate less than that "which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone". He added that:

" . . . it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order." (emphasis added)

If an option open to the court is to reflect the overall criminality by a series of concurrent terms, that must necessarily involve augmenting at least one of the terms - i.e. imposing a heavier penalty in respect of one of the offences than would have been imposed if it stood alone. In the United Kingdom, according to D A Thomas ("Principles of Sentencing" 2 ed., p. 57), the totality principle is usually respected by ordering concurrent sentences. The author says:

"Where concurrent sentences are passed for offences of differing gravity, the sentences imposed for the less serious offences should not be disproportionate to the particular offences for which they are imposed, even though the length of these sentences will not affect the total period for which the offender is liable to be detained." (57) (emphasis added)

Read with the footnote, which I do not quote here, this seems to imply that the sentence imposed for the most serious offence may permissibly exceed that which would have been imposed if it stood alone.

Lastly, in Griffiths (1989) 167 C.L.R. 372 at 393, Gaudron and McHugh JJ. said:

" It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender . . . This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently".

This is an endorsement of the propriety of augmenting the head sentence to take the others into account. Although I notice that in Griffiths Deane J. denied that the totality principle could "justify the imposition of a heavier sentence for the particular offence than that which is justified as such punishment . . . " (384), I prefer to follow what appears to be the accepted practice, as stated in the reasons of Gaudron and McHugh JJ. It is true that the idea of imposing totally concurrent sentences, so fixed as to reflect the "overall criminality" (which necessarily involves augmenting what would otherwise have been the penalty for the most serious offence) has generally been dealt with as applicable to cases in which there is a short burst of related offences; but I see no reason why, logically or in principle, it should be confined to such cases. The real objection to imposing a higher sentence for offence A on the ground that offence B has been later committed is simply that it may seem wrong to lump the penalties for two offences into one sentence imposed in relation to one of the offences; that objection is not weaker or stronger if offences A and B are of a similar character and committed within a few weeks of each other.

I therefore hold that, as a matter of law, it was proper for the magistrate to impose a sentence for the stealing charge which reflected the overall criminality of the five offences in respect of which the magistrate had to sentence the applicant. In my opinion this can be done even though, as in the present case, that which is identified as the most serious offence is the first and even if it is unrelated by time and circumstances to the others.

Having regard to this view, I have come to the conclusion that despite the error the magistrate committed, it was proper to impose a short term of imprisonment in respect of the stealing charge. Further, I think the period of imprisonment selected, two months, was a sensible one.

I would dismiss the application.

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 04/10/1996

The applicant pleaded "guilty" to one count of stealing a cheque, the property of his grandfather which the latter had signed in blank. The applicant inserted an amount ($2,500), presented the cheque and spent the proceeds. This offence will subsequently be referred to as the "stealing offence". It was committed between 27 March and 2 April 1995. At the same time, the magistrate also dealt with the applicant for the offence of using a telephone to make threats (the "telephone offence"), committed on 11 August 1995 and three offences involving a taxi and taxi driver - one of wilful damage, one of assault occasioning bodily harm and one of evading a taxi fare (the "taxi offences"), committed on 13 January 1996. For the stealing offence, the magistrate sentenced the applicant to two months' imprisonment and placed him on probation for three years. On each of the other counts, he placed the applicant on probation for three years. He made an order for restitution in connection with the taxi offences.

The facts of this matter and the antecedents of the applicant are adequately rehearsed in the judgment of Pincus JA which I have had the benefit of reading. I agree that the magistrate erred in concluding that he could not combine a suspended sentence with an order for restitution. He also erred in concluding that the stealing offence was committed whist the applicant was subject to a community service order. It is therefore necessary that we exercise the sentencing discretion afresh.

Pincus JA infers that the magistrate treated the stealing offence as being the most serious of those with which he was dealing and fixed a sentence for it which represented the total criminality of the applicant's conduct from early in 1995 until early in 1996. This inference is justified by the passage which appears at p.12 of the record where, after sentencing the applicant in respect of the telephone and taxi offences, the magistrate observed:

"Now, I have looked to the totality of your situation, the fact that you have committed these offences whilst on a District Court order with regard to community service."

He then fixed the penalty for the stealing offence. If the penalty was correctly fixed so as to reflect something more than the circumstances of the stealing offence itself, then we must, in exercising the sentencing discretion, similarly reflect that additional matter. On the other hand, if the magistrate ought not to have proceeded in this way, then it will be difficult for us to ensure that the applicant is appropriately punished because we have only the stealing offence before us.

The cases referred to by Pincus JA deal with two separate issues. The first is the approach to the use of subsequent, unrelated offences in assessing the appropriate penalty for a particular offence. R v McInerney (1986) 42 SASR 111 deals with this issue. The second issue is the approach to be taken when sentencing a person for a series of offences, usually committed over a fairly short period of time and similar in nature or factually associated. R v Papoulias [1988] VR 858 and R v Holder & Johnston (1983) 13 A Crim R 375 consider this issue.

In McInerney (supra), the court considered that a subsequent, unrelated offence may be taken into account in sentencing for an earlier offence, but for limited purposes. (Per King CJ at pp. 112-3 and Cox J at pp. 123-4). In such a case, the court should consider relevant subsequent offences as part of the antecedents of the offender, but it is not concerned to punish the offender for the subsequent offences.

A different problem arises where the court is concerned with a series of offences of a similar kind and committed in a relatively limited time frame or arising out of associated facts. The problem then is how to recognise appropriately the seriousness of each offence whilst not passing a sentence which destroys any possibility of rehabilitation. This problem is usually solved by use of the devices of cumulative and/or concurrent sentences. The cases often speak of "totality" in this context. In Holder & Johnston (supra), Street CJ said at p. 389:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentence."

In Papoulias (supra), the Court was concerned with four counts of trafficking in heroin, which trafficking involved four particular transactions committed over a period of 10 days. The transactions involved respectively, 2.44 grams, 4.11 grams, 14.01 grams and 10.65 grams of pure heroin. The appellant was sentenced to seven years' imprisonment in respect of each count, the sentences to be concurrent. On appeal, the Full Court said:

"What (the trial judge) did, and was entitled to do, was to consider all the offences as part of an overall transaction during a short period engaged in as part of the applicant's business. Having done so, he was well entitled to tailor the effective sentence to impose an appropriate punishment for the total episode. We think indeed that it would have been unrealistic to have done otherwise. It is not a fair criticism of the four sentences to say that there should necessarily have been some discrepancy between them because of the discrepancy between the detailed facts surrounding them. The total effective sentence of seven years' imprisonment was in our opinion well within the permissible range open to the learned judge upon a consideration of the matter in this way."

I am by no means convinced that either the sentencing judge or the Full Court intended to imply that any one sentence had been inflated beyond that which would have been appropriate had the offence in question stood alone.

The High Court, in Mill v R (1988) 166 CLR 59, at p. 62 said of totality:

"The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979, pp. 56-67, as follows (omitting references):

‘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'.'

See also Ruby, Sentencing, 3rd ed. (1987) pp.38-41. 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."

This statement of principle does not authorise the increase of the sentence for one count to reflect the criminality associated with other counts. The Court rather contemplated the fixing of an appropriate penalty for each offence, followed by an assessment of the overall effect, reducing the total length to be served by making sentences concurrent and where that is not practicable, by lowering individual sentences "below what would otherwise be appropriate."

In Veen v. R (1987-88) 164 CLR 465, the High Court considered the appropriateness of fixing a term of imprisonment beyond that otherwise appropriate to the offence in question for the purpose of protecting society from the offender. I mention the case only because it clearly establishes the pre-eminent role of proportionality in the sentencing process. See, for example, the judgment of the majority at p. 472, that of Wilson J at pp. 487-8, that of Deane J at pp. 490-491 and that of Gaudron J at p. 496. It must be accepted that the primary guiding principle in sentencing is to ensure proportionality as between the offence and the sentence imposed. Given the forceful assertion of that principle by the High Court, I would depart from it only with the support of clear authority. To inflate one sentence to reflect the criminality associated with another offence is not consistent with the recognition of proportionality.

In Griffiths v R (1989) 167 CLR 372 the High Court considered New South Wales legislation which, in effect, provided that in the case of certain serious offences committed after 1 January 1988, a sentencing court was to fix a non-parole period which was at least three-quarters of the length of the sentence. There was, however, a discretion to fix a shorter period should the circumstances justify that course. The applicant was convicted of six armed robberies committed between 4 December 1987 and 8 January 1988. He was originally sentenced to "a head sentence of 12 years and, in respect of that head sentence, .... an aggregate non-parole period of four and a half years." The sentencing judge was not referred to the legislative provisions mentioned above until after he had passed sentence. He then indicated that he considered it appropriate to depart from the "75% non-parole period", apparently exercising the discretion conferred by the legislation.

The Crown appealed against both the head sentence and the non-parole period.

The Court of Criminal Appeal allowed the appeal saying:
"... we are nevertheless of the view that the seriousness both of the main offence and

of the totality of the offences is such that the head sentence imposed was manifestly inadequate and that this court should fix the head sentence of 15 years penal servitude."

In the High Court, Brennan and Dawson JJ said at p. 377:
"In this Court, counsel for the applicant accepts that the Court of Criminal Appeal

was entitled to increase the head sentence to fifteen years, treating the head sentence as the sentence appropriate for the totality of the offences of which the applicant was convicted ...".

At p. 378, their Honours said:

"The effective sentence which a court determines to be appropriate punishment for a series of offences can be framed, in most cases, either as sentences for the several offences to be served concurrently, or as cumulative sentences, or as sentences which are in part cumulative and in part to be served concurrently ...".

It will be noted that there is no express approval of the course adopted by the Court of Criminal Appeal. The statement of general principle cited above would not justify that course.

Deane J, at p. 384, said:

"A secondary argument advanced on behalf of the applicant possesses greater force. As has been said, the learned trial judge fixed the aggregate sentence of twelve years' imprisonment and the non-parole period of four and a half years by reference to the ‘totality' principle. His Honour expressly stated that he wished to make it clear that he had been 'concerned to punish the whole of the criminality rather than, with over-much nicety, to specify particular sentences for particular crimes'. It would seem that the case was argued in the Court of Criminal Appeal on the basis that that was the correct approach and their Honours made clear that they accepted that the ‘totality' principle was applicable and that the increase from twelve to fifteen years in the sentence for the offence of robbery and wounding was made for the purpose of producing a corresponding increase in the aggregate sentence. In criticizing the aggregate sentence of twelve years imposed by the sentencing judge, their Honours remarked that the robbery and wounding ‘alone ... would have warranted a head sentence of twelve years penal servitude.' It was submitted on behalf of the applicant that that comment indicates that the increased sentence of fifteen years imposed for that particular offence was unduly inflated to reflect the applicant's overall criminality, including criminality in respect of the December 1987 offences.

The ‘totality' principle does not preclude regard being paid to the other offences in the relevant series in assessing the weight to be given to factors favouring mitigation of the punishment which would otherwise be justified as appropriate to a particular offence viewed in its objective circumstances. That principle cannot, however, justify the imposition of a heavier sentence for the particular offence than that which is justified as such punishment ... That being so, it is, at best from the applicant's point of view, debatable whether their Honours' comment that the applicant's crime of armed robbery with wounding ‘alone' would have warranted a head sentence of twelve years penal servitude indicates that they may have unduly increased the sentence for that particular crime. If it does and if the matter had been raised before the Court of Criminal Appeal, it is likely that their Honours would have thought that the appropriate course was to make nine years of the sentence of twelve years imposed for the offence of robbery and wounding cumulative upon one or all of the various concurrent sentences of six years imposed in respect of four of the other offences of armed robbery. If that were all that was involved, the point would be a bare technical one which could not warrant the intervention of this Court since the most serious of the offences attracting a sentence of six years was obviously the other offence committed with a real firearm which was also committed in January 1988. In that regard, it should again be stressed that counsel for the applicant expressly disclaimed any suggestion that the period of fifteen years which the Court of Criminal Appeal held to be the appropriate aggregate sentence pursuant to the 'totality' principle was, in itself, open to attack on the ground that it was unjustifiably excessive."

As I understand this passage, it means that the applicant did not dispute that 15 years was an appropriate total sentence, but he did dispute that it was appropriate to inflate the penalty for one offence by reference to the total criminality of the series of offences. Deane J considered that if the total of 15 years was correct then it could have been reached by way of a combination of cumulative sentences. The applicant's criticism, by itself, was therefore as to a mere technicality, not justifying intervention by the High Court. It is clear, however, that his Honour did not approve of the proposition that the principle of totality may justify the imposition of a heavier sentence for one offence to reflect the criminality of other offences "in the relevant series". His Honour considered that such other offences might, however, be taken into account in assessing the weight to be given to factors favouring mitigation of punishment.

Gaudron and McHugh JJ, at p. 393, said:

"It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender ... . This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently ...".

Their Honours then referred, with apparent approval, to the observations of King CJ

in Attorney General (SA) v. Tichy (1982) 30 SASR 84 at p. 85 where his Honour said:
"The essential thing to be borne in mind is if the sentences are made consecutive

there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence."

His Honour's subsequent observations disclose, however, that he considered that such a course was justified where the second offence was clearly associated with the first and could be seen as an aggravating feature of it. Similarly, at pp. 93-4, Wells J held that where two offences are capable of being seen as part of one criminal operation, it will be appropriate to take the second into account as a circumstance of aggravation in dealing with the first. This also appears to have been what was meant by of Gaudron and McHugh JJ in Griffiths because at p. 395 their Honours said of the intervention by the Court of Criminal Appeal in that case:

"The imposition of the additional three years' imprisonment in respect of that charge while leaving the other sentences to be served concurrently together with the remark that 'the totality of the offences is such that the head sentence imposed was manifestly inadequate ...' indicate that the Court of Criminal Appeal saw the fifteen offences as one 'multi-faceted course of criminal conduct'."

It cannot be said that the High Court has endorsed the view that it is correct to inflate a sentence for one offence to reflect the criminality inherent in other offences. Brennan and Dawson JJ, appear not to have thought it necessary to decide the matter because of the way in which the applicant had conducted his case. Deane J disapproved of the practice. Gaudron and McHugh JJ approved of such a course where each of the offences constitutes part of a "multi-faceted course of criminal conduct." Of course, those views are not inconsistent with the use of subsequent offences for the more limited purpose discussed in McInerney (supra).

On 11 November 1994, prior to the stealing offence, the applicant had committed the offence of causing wilful damage, but he was not convicted of this offence until September 1995. On 11 August 1995, he committed the telephone offence, some four to five months after the stealing offence. The taxi offences occurred on 13 January 1996, some nine to ten months after the stealing offence. Given the separation in time between the stealing offence and each of the later offences, and the nature of those offences, I consider that they should not be treated as depriving the applicant of the benefit of having been without prior convictions at the time of the stealing offence. As to the earlier offence of causing wilful damage, little is known about it, and as he was not dealt with until after he had committed the stealing offence, I am inclined to give it little weight.

Although the applicant did not respond well to a community service order, he is a young man who has not enjoyed the benefit of a probation order at any time. There were, however, serious aspects to the stealing offence, particularly the breach of trust and the significant loss to the complainant, whether that was his grandfather or the bank. Notwithstanding these aspects, I consider that the offence did not, by itself justify a period of imprisonment for this young man. As I do not consider it appropriate to increase this sentence merely to reflect the "totality" of his subsequent criminal misconduct over a period of almost a year, I conclude that a period of imprisonment cannot be justified. It is probably inappropriate, as the magistrate suggested, to impose a period of community service in view of his past history. In the circumstances, I would admit him to probation for a period of three years in respect of this offence. A breach of any one of the probation orders will presumably be a breach of all three. In the event of such breach, it will be open to the court which deals with him to look at all matters afresh. The applicant should realise that the threat of imprisonment is not removed by the order which I propose.

I would grant leave to appeal, allow the appeal, set aside the order of the magistrate and order that the applicant be admitted to probation for a period of three years, subject to the applicant's consent.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 4th day of October, 1996

In sentencing the applicant, the stipendiary magistrate said:

"I am not in a position to be able to make an order with regard to restitution in conjunction with a period of suspended sentence, so I have looked to the options available to me and that is the reason why I am ordering a term of imprisonment ... ."

Counsel for the respondent conceded that the magistrate was in error in this regard and that consequently, this Court was required to exercise its own discretion as to the appropriate sentence.

The applicant's criminal history, and the other offences ("the concurrent offences") on which he was sentenced at the same time as he received the sentence the subject of the present application, are described in the judgment of Pincus J.A., which I have had the benefit of reading in draft. A question which arose in the course of the argument before us was whether we can take the concurrent offences (and the penalties imposed in respect of them) into account, not as part of the applicant's criminal history, but on the basis that where concurrent sentences are being imposed for a variety of offences (whether part of a series of related offences or not) the penalty for the most serious offence may be higher than otherwise it would be in order to reflect the seriousness of the whole of the conduct, or perhaps to prevent the total absorption of the lesser offences in the greater. Such a result would apparently be based upon the application of the totality principle1.

As presently advised, I am inclined toward the view adopted by Pincus J.A. on this question. Indeed, that view is probably implicit in the decision of this Court in R v Kay2. However I find it both unnecessary and undesirable to express a concluded view on the point. It is unnecessary because, for the reasons set out below, I would not in any event apply that approach to the circumstances of this case. It is undesirable because the question was not fully argued before us and we were not referred to any authorities on it; and (if it matters), this was not a case where the lesser penalties were absorbed in the greater.

The applicant is still young; he cooperated with the police; and he pleaded guilty. He has had an alcohol problem since the age of 16, but it was claimed without challenge on his behalf that he now has that problem "under control". He has already begun making restitution of the money stolen, and if he is not imprisoned, will be able to continue to do so. Community service orders made in the past have been productive of difficulty and that further orders would be of doubtful utility. A supervising officer from the Corrective Services Commission has recommended against such orders. On the other hand it was also thought that the applicant might well benefit from probation. There has not been time for the probation orders made in respect of the concurrent offences to display their worth. The stage has not been reached where the criminal history suggests there is no alternative to further immediate imprisonment.

The probation orders made in respect of the concurrent offences contain a condition that the applicant submit to drug and alcohol counselling and treatment as may be directed by an authorised commissioned officer. They also contain a condition requiring the applicant to pay restitution to the Clerk of the Court at Beenleigh. In my view it is desirable that these orders be given a chance to operate. Although I think that a further community service order is not appropriate, I agree with the stipendiary magistrate that the applicant ought to be required to complete the orders to which he is already subject.

Unlike Dowsett J., whose judgment I have had the benefit of reading in draft, I would not extend to the applicant the full leniency to which he would be entitled as a first offender. In my view, it is proper to have regard to the concurrent offences as part of the applicant's criminal history and to assess his character in that light. That history, and the nature and circumstances of the stealing offence, deprive the applicant's claim to leniency of much of its force. I would have marked the seriousness with which the Court views the applicant's conduct by imposing a sentence of three months' imprisonment, suspended for an operational period of two years. However, in view of the divergence of views between my colleagues, I am content to join in the order proposed by Dowsett J.

1See R v Glenister (1980) 2 N.S.W.L.R. 597 at p.612; R v Shephard (1995) 77 A.Crim.R. 139 at p.144.
2Unreported, C.A. No. 122 of 1996, 18th June 1996.