Mullane v The State of Western Australia - [2007] WASCA 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MULLANE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 247

CORAM: STEYTLER P
McLURE JA
MILLER JA

HEARD: 7 NOVEMBER 2007

DELIVERED : 14 NOVEMBER 2007

FILE NO/S: CACR 3 of 2007

BETWEEN: PAUL ANDREW MULLANE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SWEENEY DCJ
File No  :IND 1541 of 2006

Catchwords:

Criminal law - Appeal against sentence - Whether aggregate of sentences imposed for robbery and burglary offences manifestly excessive or in breach of totality principle - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 32

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr A L Troy

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Jarvis v The Queen (1993) 20 WAR 201
Martino v The State of Western Australia [2006] WASCA 78
R v Holder [1983] 3 NSWLR 245
Woods v The Queen (1994) 14 WAR 341

STEYTLER P: I agree with McLure JA.
McLURE JA: This is an appeal against sentence. The appellant was convicted on his own plea of guilty of one count of aggravated robbery, one count of attempted aggravated robbery and two counts of deprivation of liberty. The appellant also pleaded guilty to two charges of burglary and two of aggravated burglary the subject of a notice under s 32 of the Sentencing Act 1995 (WA). The convictions rendered the appellant in breach of the conditions of an intensive supervision order and suspended term of imprisonment imposed for the offences of robbery and burglary respectively. The appellant was re‑sentenced for those offences.
On 20 December 2006 Sweeney DCJ imposed a total effective sentence of 6 years 9 months' imprisonment (10 years 2 months under the former sentencing regime). The individual sentences are as follows:

Counts on indictment

Count 1	Attempted aggravated robbery	16 months	Cumulative
Count 2	Aggravated robbery	22 months	Head sentence
Count 3	Deprivation of liberty	5 months	Cumulative
Count 4	Deprivation of liberty	5 months	Concurrent

Section 32 notice

Burglary	16 months	Cumulative
Burglary	16 months	Concurrent
Aggravated burglary (x 2)	16 months each	Concurrent

Previous convictions - breach of orders

ISO	Robbery	22 months	Cumulative
Suspended sentence	Burglary	6 months 1 day	Concurrent

The grounds of appeal for which leave was granted are that the total effective sentence (a) is manifestly excessive and (b) breaches the totality principle because it is crushing.
In his written submissions the appellant raises grounds of appeal for which leave was not sought and has not been obtained. He contends that the individual sentences on the counts in the indictment are manifestly excessive. It is counsel's responsibility to ensure that written and oral submissions do not go beyond the grounds of appeal for which leave has been granted. The purpose of the current rules is to ensure that legal advisers give careful and considered attention to the formulation of the grounds of appeal prior to filing the appellant's case. I propose to confine my consideration to the grounds on which leave was granted.
The facts giving rise to the indictable offences are as follows. On 9 April 2006 at around 1.50 pm the appellant and his co‑offender attended a newsagency in Subiaco. The co‑offender acted as a look out while the appellant entered the store and implicitly threatened the shopkeeper by saying if the shopkeeper gave the appellant money, no one would be hurt. The shopkeeper refused and the appellant approached him. The shopkeeper picked up a stool to defend himself and the appellant left the store. This constituted the offence of attempted aggravated robbery.
The appellant and his co‑offender then travelled to Mosman Park and attended a pharmacy staffed by two pharmacists. Both offenders entered the store and the co‑offender closed the door. The appellant told one of the pharmacists 'this is a robbery' and then ushered both pharmacists into a kitchen area and closed the door, telling them he did not intend to hurt them. These facts give rise to the two counts of deprivation of liberty. The appellant then opened the store's safe with a key he found in the lock and placed 33 packets of sumutex and 33 packets of dexamphetamine into his backpack. He also took $1,140 from the cash register. This constituted the aggravated robbery offence in the indictment.
The offences the subject of the s 32 notice are as follows. Around 12.15 am on 28 March 2006 the appellant entered a dry-cleaning store and a hairdressing store in City Beach. He threw a rock through the windows of the stores to gain entry. He searched the stores but left empty handed. He then attended the City Beach shopping centre with a co‑offender and used a rock to smash a glass door to obtain entry to the shopping centre's common area. Once inside, the appellant kicked in the roller door of a pharmacy. He entered and searched the premises but again left empty handed.
The offences the subject of the indictment and s 32 notice rendered the appellant in breach of existing sentences imposed in the following circumstances. On 25 August 2005 the appellant entered a café and demanded that the staff open the cash register. When the staff refused, the appellant threw the register to the ground several times but it would not open. He then absconded with the register. The appellant was convicted of one count of robbery and placed on a 2‑year intensive supervision order and ordered to undertake 100 hours of unpaid work. On 23 October 2005 the appellant smashed a glass door to gain entry to a pharmacy from which he stole approximately $50 in coins. He was convicted of one count of burglary and sentenced to 6 months 1 day imprisonment, suspended for two years.
The appellant was aged 39 at the time of sentencing. He had a disadvantaged childhood. He was made a ward of the State at age 9 and most of his adolescence was spent in juvenile institutions and community hostels. The appellant has a substantial record of offending both as a juvenile and as an adult. He has a significant alcohol and drug abuse problem which is closely linked with his offending. However, he did not offend between 1997 and 2005 because he was able to manage his substance abuse problems and became involved with church and youth work.
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if a sentencing judge has made an express or implied error of fact or law.
The appellant challenges the total effective sentence which brings the totality principle into play. There are two limbs to the totality principle. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an ultimate aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). The rationale for the principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence(s) have been served. The totality principle applies even when more than one sentencing court is involved. The appellant contends in effect that the total effective sentence breaches both limbs of the totality principle.
I am satisfied that the total effective sentence of 6 years 9 months' imprisonment offends the first limb of the totality principle. The circumstances of the offences the subject of the indictment are towards the lower end of the scale of seriousness of crimes of that type. The same may be said of the other offences for which the appellant was sentenced. Moreover, although the appellant's record is lengthy, his previous offences were not of such a nature as to attract long terms of imprisonment. Finally, the appellant has demonstrated that he has the capacity and the will to rehabilitate himself for a significant period. In those circumstances, a total effective sentence of 4 years 6 months is all that is required to satisfy the relevant sentencing objectives including punishment, retribution and deterrence.
Accordingly, I would allow the appeal, set aside the orders made by the sentencing judge in relation to concurrency and cumulation and in lieu thereof order that the sentences of imprisonment on counts 1 and 2 in the indictment (16 months and 22 months) and the sentence of 16 months for the first offence of burglary the subject of the s 32 notice be served cumulatively with the balance of the sentences to be served concurrently. That results in a total effective sentence of 4 years 6 months (6 years

9 months under the former sentencing regime). The appellant would remain eligible for parole.

MILLER JA: I agree with McLure JA.