Murtagh v Tasmania

[2021] TASCCA 7

[2021] TASCCA 7

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Murtagh v Tasmania [2021] TASCCA 7
PARTIES:	MURTAGH, Steven Craig
v
STATE OF TASMANIA
FILE NO:	CCA 1172/2021
DELIVERED ON:	9 September 2021
DELIVERED AT:	Hobart
HEARING DATE:	26 August 2021
JUDGMENT OF:	Blow CJ, Pearce J and Martin AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Head sentences totalling 4 years 6 months with eligibility for parole after 2 years 6 months – Activation of suspended sentence of 6 months' imprisonment for multiple offences – Cumulative sentence of 21 months for crimes of dishonesty – Cumulative sentence of 27 months on two counts of aggravated assault and related summary offences – Not manifestly

excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	P Monk
Respondent:	J Shapiro

Solicitors:

Appellant:	Legal Aid Commission
Respondent:	Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 7
Number of paragraphs:	65

Serial No 7/2021

File No CCA 1172/2021

STEVEN CRAIG MURTAGH v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ PEARCE J MARTIN AJ 9 September 2021
Order of the Court (26 August 2021)
Appeal dismissed.

Serial No 7/2021

File No CCA 1172/2021

STEVEN CRAIG MURTAGH v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
9 September 2021

1            On 26 August 2021, this Court dismissed this appeal, reserving its reasons for publication at a later date. I joined in the making of that order for the same reasons as those now stated by Martin AJ.

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File No CCA 1172/2021

STEVEN CRAIG MURTAGH v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
9 September 2021

2   I joined in the order dismissing this appeal for the same reasons as those expressed by

Martin AJ.

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File No CCA 1172/2021

STEVEN CRAIG MURTAGH v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 9 September 2021
Introduction

3            The appellant pleaded guilty to a number of offences of dishonesty committed on 10-11 September 2019, and to two offences of aggravated assault committed against police officers on 19 September 2020. The latter crimes were committed in breach of a suspended sentence of six months imposed on 22 July 2020. In addition, the appellant pleaded guilty to four offences charged on complaint which arose from the same circumstances involving the two offences of aggravated assault.

4             Porter AJ activated the suspended six month term of imprisonment and imposed a single sentencing of imprisonment for 21 months in respect of the offences of dishonesty. His Honour ordered that the sentence of 21 months be served cumulatively upon the activated six month sentence.

5             In respect of the two offences of aggravated assault committed in September 2020, and the offences charged on complaint, Porter AJ imposed a sentence of imprisonment for 27 months to be served cumulatively upon the previous sentences, thereby arriving at a total sentence of imprisonment for four years and six months. His Honour fixed a non-parole period of one half of each sentence, excluding the activated suspended sentence, making a total period to be served of two years and six months before being eligible for parole.

6             The appellant's first notice of appeal contained a single ground contending that "the sentences imposed were manifestly excessive in all of the circumstances of the case". Subsequently the appellant filed an amended notice of appeal containing an additional ground asserting that the learned sentencing judge erred in failing to consider the principle of totality.

7            At the conclusion of submissions the Court dismissed the appeal. I now set out my reasons for agreeing with that order.

Facts of offending

8             In September 2019, together with a co-offender, Aaron James Irwin, the appellant engaged in three episodes of offending. Late on the night of 10 September, or in the early hours of 11 September 2019, the appellant and Mr Irwin entered the rear yard of private premises by cutting a padlock from a gate. They smashed the front passenger window of the property owner's work vehicle, and stole the keys to a personal vehicle (the Isuzu), together with the owner's wallet which contained a number of credit cards. Using the stolen keys, the appellant and Mr Irwin stole the Isuzu and used it to assist in committing further offences. The Isuzu was subsequently found on 12 September 2019 in an adjacent suburb.

9             The conduct of the appellant and Mr Irwin in breaking into the work vehicle was the subject of a joint charge of burglary, namely, entering the vehicle with intent to commit the crime of stealing therein. The theft of credit cards and keys to the Isuzu was the subject of a joint charge of stealing. A second joint offence of stealing was based on the theft of the Isuzu and items within that vehicle. Some of the items stolen from the Isuzu were later recovered.

10           Using the stolen Isuzu, the appellant and Mr Irwin stopped at three service stations where the stolen credit card was used to purchase items such as cigarettes and soft drinks. At the first and second

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service stations, both the appellant and Mr Irwin used the credit cards, but only Mr Irwin repeated the exercise at the third service station where he used the credit card twice. The fraudulent use of the credit card was the basis of two offences of computer-related fraud to which the appellant pleaded guilty. The purchases at the two service stations by the appellant involved $98.69 and $87.97 respectively. The purchases by Mr Irwin were $86.97 and $90.47 at the first and second service stations, and a total of $187.90 was spent in the two transactions at the third service station.

11           Together, the appellant and Mr Irwin then committed the crimes of aggravated burglary and stealing. Having left the third service station, they drove the Isuzu to Battery Point and parked in a street near an antique business in Hampden Road. They forced entry into the building at about 3.30am by smashing a glass door with a jack handle from the Isuzu. One of them reached through the smashed glass to unlock the internal lock and open the door. Each was carrying an offensive weapon, being the jack handle and an unknown metal implement. Inside the premises, the appellant and Mr Irwin smashed the glass on two antique showcases and stole a gold bracelet, an ivory box and a Vesta box.

12           The entry into the premises, with intent to commit the crime of stealing while in possession of offensive weapons or instruments, was the basis of the aggravated burglary to which each offender pleaded guilty. The crime of stealing was based on the theft of the gold bracelet, ivory box and Vesta box. None of the property was recovered, and the total value of the items stolen was approximately $8,115. The antiques could not be replaced, and the owner had put a lot of effort into finding the Vesta box. The owner was very upset about the damage to the showcases which had been in her possession since she was aged 19, and which she used to travel around the country to antique fairs. The owner was not fully insured and suffered financially.

13           It appears that the appellant and Mr Irwin were unaware that the upstairs area of the premises was used by the owner and her partner as their residence. A friend, who was staying with the owner, heard a noise downstairs and went to investigate. When the friend encountered the appellant and Mr Irwin, it was the latter who raised an implement and told the friend to "fuck off", or he would kill him. By this time the owner had come down to the shop, and her partner was on the stairs calling the police. The appellant and Mr Irwin fled to the Isuzu and drove away. When police arrived, they found a number of items in the gutter near where the Isuzu had been parked, all of which belonged to the owner of the Isuzu.

14           Not surprisingly, the offending left the elderly owner of the antique business feeling vulnerable and afraid at night. The sentencing judge found she was experiencing "a continuous fear of being burgled again".

15           The offending across the three episodes was the basis of one offence of burglary, two of stealing, two of computer-related fraud, one of aggravated burglary and another of stealing to which the appellant pleaded guilty. Mr Irwin was found guilty by a jury of the burglary and stealing offences he jointly committed with the appellant, and of four offences of computer-related fraud.

16           After the appellant and Mr Irwin fled from the antique premises, the owner spoke with police and relayed information concerning the prior attendance at the shop of two males and two females who had asked about the bracelet that was later stolen. The owner subsequently identified both the appellant and Mr Irwin from photoboards. In other words, the appellant and Mr Irwin "cased" the premises and, in particular, identified the value of the bracelet they later stole.

17           The same morning as the burglary, a person living not far from the owner of the stolen Isuzu found a backpack behind an air conditioning unit in their backyard. At the police station the backpack was found to contain items belonging to the owner of the Isuzu.

18           Mr Irwin lived not far from the home where the Isuzu had been stolen. In the early afternoon of 11 September police executed a search warrant at Mr Irwin's home where they arrested him. The appellant fled onto the roof of a nearby premises and refused to come down. He was arrested

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approximately six hours later. The sentencing judge noted that forensic testing provided links between
items found, location of the crimes and both Mr Irwin and the appellant.

19           The burglaries and thefts having occurred in September 2019, the appellant subsequently served a short term of imprisonment and was on bail in respect of those burglaries and thefts when his later offending occurred in September 2020. The sentencing judge noted that in the few weeks before the offending in September 2020, the appellant was alleged to have breached his bail conditions on multiple occasions by failing to sign in at a police station and breaching a curfew.

20           The offending of 19 September 2020 formed the basis of two offences of aggravated assault to which the appellant pleaded guilty, together with four related summary offences, namely, breach of bail, assaulting a police officer, resisting a police officer and driving while disqualified. The sentencing judge summarised the offending of 19 September 2020:

"At about 2.40pm on 19 September 2020, in Launceston, Constables Abery and Fenton were on patrol in a police vehicle when they saw the defendant riding a stolen motor cycle. The officers pursued him. After turning off the road and riding across a vacant block, the defendant again rode along a footpath before going behind some sheds at the end of the street. The police found the defendant getting off the motor cycle outside a premises. As the officers were getting out of the vehicle, the defendant ran towards Const Abery and pushed the car door into her, striking her and pinning her against the doorframe. That is the summary charge of assault. The officers then chased after the defendant, who turned and adopted a fighting stance with his fists closed and held in front of his face. He said, 'Come on you fucking dogs', at which point Const Fenton used OC spray, but this was ineffective as the defendant was wearing a helmet and goggles. Const Fenton told the defendant to get on the ground. The defendant was highly agitated. He was yelling loudly and said words to the effect of, 'Fuck off you dogs, I've got a knife, I'm going to fucking stab you, and you're going to have to shoot me.' When Const Abery attempted to disable the defendant by hitting him to the arm and leg with a baton, the defendant produced a knife and continued to threaten them. The threats to stab are the subject of count 1 on the indictment. The defendant then scaled a barb wire fence before going into a warehouse through a raised roller door. Both officers followed the defendant into the warehouse. The defendant ran towards them. He was still holding the knife and was threatening and abusive. When the officers retreated, the defendant tried to shut the roller door but the officers attempted to prevent him from doing so. The defendant said he had a gun, that the officers were dead and that he would throw petrol on them. He then splashed petrol underneath the roller door towards the police while holding a butane blowtorch in the other hand. He threatened to light the petrol. This is count 2 on the indictment. The officers retreated and waited for back up units to arrive. When other officers were there a cordon was formed around the warehouse. The defendant barricaded himself inside the warehouse by dragging various items to put against the roller door. He also spray painted low level windows so that the police could not see in. He repeatedly refused to leave when he was directed to. Ultimately, police negotiators became involved with fire and ambulance services also attending. At about 4.50pm the defendant surrendered. He underwent an oral fluid test which returned a positive result for methylamphetamine, amphetamine and MDMA. Const Abery received minor cuts as a result of scaling the barb wire fence, but otherwise no officer was injured."

The appellant

21   In comprehensive sentencing remarks, the sentencing judge summarised matters personal to the

appellant:

"Mr Murtagh is now 33 years old. Apart from significant events in his life when he was about 7 years old or so, his family life appears to have been relatively stable. At that age, he was the victim of sexual abuse carried out by a male friend of his father. He only disclosed this abuse when he was well into his twenties. This abuse may serve to explain his resort to cannabis and drugs at an early age. By the age of 14 he was using morphine and amphetamines. He has a seriously entrenched long-standing drug habit. This drug habit has very largely given rise to what in the past has been described as an

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appalling record of offences of violence and dishonesty. Counting the making of a drug treatment order and its cancellation as one appearance, this is his eighth appearance in this Court for sentence. Between September 2007 and November 2010 by way of cumulative sentences, he was made the subject of a total of eight years' imprisonment with a non-parole period of about 5½ years These offences included aggravated robbery, attempted aggravated armed robbery, aggravated assault, injury to property and burglary and stealing. Following his release in 2013 he very soon started to re- offend. He has made attempts at rehabilitation. He was made the subject of a drug treatment order in 2014, although that was cancelled after about two months. A further drug treatment order was made by a judge of this Court on 22 November 2018. Unfortunately Mr Murtagh was not able to avoid relapse. Although that order was cancelled on 22 July 2020, the sentencing judge noted a high level of compliance over an extended period demonstrating a commitment to rehabilitation and compliance, despite a continuing struggle with addiction. Reports before his Honour noted a reflection on his situation by the defendant and recognition of the need to build on his achievements and continue the focus on rehabilitation, something for which he has a strong motivation. When that order was cancelled the defendant was sentenced to six months' imprisonment the execution of which was suspended on conditions. The offending in September 2020 puts him in breach of the condition of suspension. An application has been made to activate that term. I was told that in the period 2018 to 2019 he had difficulty with transition into the community. There was a variety of stressors in his life, including the breakdown of a relationship and some family issues. I was told that since being imprisoned on this occasion he has been proactive in seeking support in relation to his drug abuse. He has engaged with the sexual assault support service and has received counselling to address what are described as 'difficult challenging and confronting issues from his past'. It is said he has worked consistently and respectfully in this regard. A particular motivating factor for improved behaviour is said to be two young children with whom he has had contact when he was in the community. He had a cordial relationship with the mother, but the children were taken into care towards the end of last year. He is very upset by this and apparently keen to do what he can to assist his children and knows that overcoming his problem is essential."

22   Later in his remarks, the sentencing judge observed:

"There do seem to some remaining real prospects of eventual rehabilitation for him the
appellant."

Approach of the sentencing judge

23           Having dealt with the facts of the offending, and with matters personal to both Mr Irwin and the appellant, the sentencing judge considered the respective culpability of the offenders. As to the first set of charges concerning the stolen motor vehicle, his Honour correctly observed that the offenders bore "equal culpability". The sentencing judge found that the burglary of the antiques was pre-planned, but accepted that neither offender knew that the building was also used as a residence. In his Honour's view, that ignorance did not "count for much". Having recognised that the threat of violence was made by Mr Irwin, not the appellant, his Honour observed that the appellant was carrying an offensive implement and that, apart from the threat, there was "very little, if anything, to distinguish them with respect to culpability".

24           The sentencing judge observed that the appellant had a "much worse record" than Mr Irwin, but was entitled to "some discount for the utilitarian benefit of his pleas". He found with respect to both offenders that there were some prospects of rehabilitation.

25          As to the offending by the appellant in September 2020, and the totality of the appellant's criminal conduct, his Honour made the following observations:

"As to Mr Murtagh's assaults on the police officers, they must be viewed in a very serious light. The assaults were for the purpose of preventing his lawful apprehension. The officers were simply carrying out their duty. On his behalf, it is said that he had no intention of carrying out the threats, but he rightly accepts that the officers were not to

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know that. Using petrol in that way while in possession of an ignition source was potentially dangerous for all. That he was drug affected at the time perhaps increased the risk. General deterrence and condemnation of such conduct are very prominent factors. Of course, the entire offending needs to be assessed. There is the summary assault and other offences involving police, and serious driving offences including driving whilst disqualified where there are quite a few prior convictions for that and like offences. As to Mr Murtagh, I take into account his personal circumstances as outlined and pleas of guilty to all matters. There do seem to some remaining real prospects of eventual rehabilitation for him."

Discussion

26           There is no error apparent in the approach of the sentencing judge to the task of sentencing the appellant (and Mr Irwin). His Honour carefully considered the facts of the crimes committed by each of the appellant and Mr Irwin, and their respective culpability. Similarly, his Honour paid careful regard to the personal circumstances of each offender.

27           Correctly, in respect of the appellant, the sentencing judge assessed the "entire offending", but the appellant submits that his Honour failed to have regard to the totality principle. The appellant drew attention to two aspects of that principle. First, the requirement to have regard to the total effect of multiple sentences "to ensure it is a just and appropriate measure of the totality of the criminal behaviour".[1] Secondly, the need to have regard to whether a sentence is "crushing" as explained by Kirby J in Postiglione v The Queen [1997] HCA 26, 189 CLR 295 at [8]:

"The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate 'just and appropriate'. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or it its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects".

[1] DPP v Fletcher-Jones [2019] TASCCA 18 at [18].

28 The sentencing judge did not specifically mention the totality principle, but it is not to be assumed that his Honour failed to have regard to that principle. His Honour is a very experienced judge who is undoubtedly familiar with the requirement for a sentencing judge to apply a totality principle. There is no basis for inferring that his Honour overlooked or disregarded the principle. It is apparent from his sentencing remarks that he considered whether the sentences should be served cumulatively and concluded, at least in respect to the sentence imposed for the 2020 offending, that he did not "see any real option but to make that cumulative to the previous sentences". Section 27(6) of the Sentencing Act contemplates that activated suspended terms should be cumulative to other terms. It is apparent that his Honour deliberately calculated the cumulative effect of the sentencing orders so as to result in a total term of 4½ years, with a parole eligibility after 2½ years. This sentence was imposed a week after submissions, and it is a reasonable inference that the sentencing judge deliberately chose the periods of 21 and 27 months with accumulation in mind to achieve the total of 4½ years.

29           In the context of the application of the totality principle, counsel for the appellant contended that the principle could be applied to reduce either or both of the individual sentences below the sentences that would otherwise be appropriate for those crimes. Such an approach may be appropriate in circumstances such as those considered by the High Court in Mill v The Queen (1981) 166 CLR 59, but in Pearce v The Queen (1988) 194 CLR 610, the following statement appears in the joint judgment

of McHugh, Hayne and Callinan JJ at [45]–[47][2]:

"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.

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[2]   R v Hammoud [2000] NSWCCA 540, 118 A Crim R 66 at [8]-[10] per Simpson J.

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence, and then consider questions of totality.

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation." [Footnotes omitted.]

30           This question of principle was not fully explored in submissions, and no reference was made to relevant legislation or sentencing practices. In these circumstances, and as the criticism of the approach of the sentencing judge cannot be sustained, it is not necessary to discuss this issue further.

31           The critical question is whether the total sentence offends the totality principle and is, as a consequence, manifestly excessive. Counsel for the appellant contended that the total sentence of 4½ years "is not a just and appropriate measure of the totality of the criminal behaviour". In addition, it was submitted that, considered in isolation, the individual sentences of 21 and 27 months were each manifestly excessive.

September 2019 – 21 months

32          In summary, the appellant advanced the following matters in support of the submission that the sentence of 21 months is, in its own right, manifestly excessive:

	Had it not been for the offence of aggravated burglary, all of the remaining offences on the indictment would ordinarily have been dealt with in the summary jurisdiction.
	The burglary of the antique premises amounted to aggravated burglary only because, at the time of entry into the premises, the appellant and Mr Irwin were in possession of offensive weapons or instruments.
	"There was nothing particularly aggravating" about the burglary of the antique premises ("or the other charges on the indictment generally"). It was a burglary on a business where the property stolen was valued at less than $10,000, and the instrument carried by the appellant was used only for the purposes of gaining entry (as opposed to Mr Irwin who, when the friend of the owner came downstairs, raised the implement and told the friend to "fuck off" or he would "kill him").
	The offending was "not an unusual course of criminal conduct".
	The appellant was sentenced to the same term of imprisonment as Mr Irwin despite his plea of guilty "and not being criminally responsible for the threat" made by Mr Irwin.
	By sentencing the appellant to the same period as Mr Irwin, the sentencing judge "placed too much weight on the existence of the appellant's prior convictions", and the utilitarian benefit of the guilty plea was "diminished" by sentencing the appellant to the same term as Mr Irwin by reason only of the existence of more significant prior convictions.

33           The issue of parity of sentence between the two offenders is not a separate ground of appeal. Rather, the appellant seeks to use the comparison as supporting the appellant's contention that he has been treated too harshly. However, when regard is had to the entirety of the sentencing remarks, it is readily apparent that the sentencing judge was aware of the various factors relevant to a comparison of the culpability of each offender and their personal circumstances. His Honour carefully weighed all the relevant factors and I am unable to discern any error in his approach to this aspect of the sentencing task.

34           Ultimately his Honour concluded, and in my view correctly, that both offenders bore equal culpability in respect of the first group of offences and that, together, they pre-planned the burglary of

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the antique premises. His Honour well appreciated that the threat of violence was not alleged against the appellant, and concluded that apart from the threat of violence, there was "very little, if anything, to distinguish them with respect to culpability". As to the threat, while the appellant is not criminally responsible for the threat, he cannot reasonably claim that a threat of the nature made by Mr Irwin was unforeseeable. The appellant was well aware that Mr Irwin was carrying an implement. Given the circumstances in which the appellant and Mr Irwin used implements to break into the cottage at 3.30am, it was entirely foreseeable that, if interrupted, some form of threat might be made in order to achieve an escape. As Pearce J observed in sentencing remarks delivered in Rae[3]:

"The risk of violence or threats of violence is inherent in a burglary where an offender

[3]   Paul Anthony Rae, comments on passing sentence, 7 December 2015.

is interrupted or confronted."

35           In assessing the utilitarian value of the appellant's pleas, the sentencing judge determined that the appellant was entitled to "some discount". His Honour noted that the pleas came after negotiations concerning the particulars of the aggravated burglary, but prior to agreement in that regard "identity was the anticipated issue".

36           It is clear his Honour took the view that the appellant was entitled to a limited reduction only, given the circumstances in which the pleas came about. In my opinion, that view was correct. The appellant did not co-operate with police, and extensive forensic investigations had taken place well before the late pleas. Mr Irwin pleaded not guilty and a trial occurred. Hence the appellant's pleas were of limited utilitarian value. Counsel for the appellant did not challenge the determination of the sentencing judge that the appellant was entitled to 'some discount for the utilitarian value" of the pleas.

37           As to other aspects of comparison between the offenders, the sentencing judge was entitled to compare personal circumstances, prior records of offending and prospects of rehabilitation. Mr Irwin's record of prior offending was poor, but the sentencing judge correctly described the record of the appellant's prior offending as an "appalling record of offences of violence and dishonesty". That offending commenced in 2002 when the appellant was aged just short of 15 years, and continued unabated into 2020.

38           Ultimately, endeavouring to ensure appropriate parity of sentencing between co-offenders is not a precise scientific exercise. Having regard to the totality of the circumstances, I regard it as within the sentencing discretion to impose the same sentence upon each offender from the 2019 offending.

39           The gravity of the total criminal conduct across the three episodes of offending in September 2009 was serious. It is not to the point that but for the aggravated burglary, the offences could have been dealt within the summary jurisdiction. Similarly, it is not appropriate to undermine the gravity of the criminal conduct with respect to the antique premises by implying that the offending is less serious because it was a "burglary on a business where the items stolen were valued at less than $10,000". Similarly, I do not agree with the appellant's contention that there was "nothing particularly aggravating" about the burglary of the antique premises.

40           Burglary, particularly using offensive weapons or implements to gain entry into premises and carrying those implements into the premises, is a serious crime which causes distress to immediate victims and great concern across the wider community. It is an invasion of the privacy and security of the particular premises, and the criminal courts now recognise the distress such invasions cause to occupiers of premises, even if they are not present at the time of the burglary. This type of crime is, unfortunately, prevalent, and general deterrence is an important aspect of the sentencing process.

41           While knowledge that a particular premises is occupied at the time of a burglary is an aggravating feature of the culpability accompanying such a crime, ignorance of the presence of an occupier at 3.30am is not a mitigating feature. Objectively, the fact that the owner of the premises, and

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others, were sleeping in the premises at 3.30am is an aggravating circumstance accompanying the commission of the crime. Bearing in mind the appellant's earlier planning visit to the premises, described in the Crown facts as a "cottage" in Battery Point, if the appellant had even momentarily reflected on the nature of the premises, he would have realised there was a real possibility that the premises were occupied. The appellant cannot complain because he chose to break into a cottage in Battery Point at 3.30am that, unknown to him, was occupied.

1. As to the appellant's record of prior offending, his first crime of aggravated burglary was committed in August 2002, and was followed by the same offence in September 2002. Multiple aggravated burglaries, burglaries and stealings were constantly committed by the appellant thereafter, through to the offending under consideration. Obviously, the appellant is not to be sentenced again for those crimes, but they amply demonstrate that the appellant has repeatedly forfeited any claim for leniency, and sentences of imprisonment did not deter the appellant from committing further crimes of this type.

43           In addition, the 2019 offending was committed while the appellant was subject to a Drug Treatment Order (with a custodial component of 18 months) imposed on 22 November 2018 for a number of offences, including burglary of two motor vehicles. On 16 July 2019, the appellant graduated from the Bridge Program and returned to the community, less than two months before committing the crimes under consideration.

44           The sentencing judge was well aware of, and had regard to, the attempts of the appellant at rehabilitation which have failed notwithstanding apparent motivation to succeed. Whatever motivation the appellant possessed, it did not deter him from the offending in September 2019, which represents continuation of the course of criminal behaviour upon which the appellant embarked in the early 2000s.

45           Having regard to the appellant's total criminal conduct across the three episodes of planned offending in September 2019, in my opinion the sentence of 21 months, considered in isolation, is far from excessive.

September 2020 – 27 months

46          In support of the contention that the sentence of 27 months for the offending in September 2020 is, in itself, manifestly excessive, counsel for the appellant identified three principal factors:

	The two offences of aggravated assault relate to threats alone. No actual attempt was made by the appellant to follow through on any of the threats and the butane torch was not lit.
	With the exception of minor cuts caused by scaling a barbed wire fence, no injuries were caused to either officer.
	The appellant entered a plea of guilty at an early stage before the matter was prepared for trial.

47           The gravity of the appellant's criminal conduct in September 2020 should not be underestimated. First, he drove while affected by drugs and while disqualified. He acted in breach of bail. Then the appellant did not simply resist arrest by a minor struggle. He pushed the door of the police vehicle into a female Constable, pinning her against the doorframe, and followed with threats to kill the officers while in a highly agitated state and using foul language. During the threats the appellant yelled that he had a knife, and shortly after making those threats, he produced a knife and continued to threaten the officers.

48           The appellant then scaled a barbed wire fence and entered a warehouse. When the officers followed him he ran toward them holding the knife while threatening the officers and being abusive. The officers retreated, and when they attempted to prevent the appellant from shutting the roller-door of the warehouse, the appellant claimed he had a gun and that the officers were "dead". Threatening to

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throw petrol on the officers, the appellant splashed petrol underneath the roller-door, toward the officers,
while holding the butane blow torch in his other hand. The appellant threatened to light the petrol.

49           Subsequently, after the appellant had barricaded himself inside the warehouse and eventually surrendered, he underwent an oral fluid test which demonstrated the presence of methylamphetamine, amphetamine and MDMA.

50           The conduct of the appellant was extremely dangerous and placed the lives of the officers at high risk. In his highly emotional state, and affected by drugs, there was an extreme risk of significant injury to the officers, either through the use of the knife or by lighting the petrol.

51           In sentencing submissions, counsel for the appellant said the appellant became aware police were looking for him after officers came to his bail address and he was not present. Counsel put to the sentencing judge that the appellant took off, and what followed was "a cascading series of errors in judgment" by the appellant which culminated in the aggravated assaults. Counsel informed the sentencing judge that the drugs significantly impacted upon the decision-making of the appellant. In particular, he was under the influence of methylamphetamine. Counsel conveyed the appellant's instructions that he had no intention of doing any of the things that he threatened to do, but accepted that the officers had no way of knowing he would not carry through with his threats.

52           Counsel's characterisation of the appellant's conduct as a "cascading series of errors of judgment" is a significant understatement. The appellant engaged in a serious course of dangerous criminal conduct, which commenced with a physical attack upon an officer using the car door, and involved the use of a weapon and flammable liquid. The physical conduct was accompanied by repeated threats of an apparently credible nature.

53           Officers carrying out their duties protecting the safety of the community are at risk of significant harm from conduct of this type, and they are entitled to such protection as the criminal courts are able to provide through the imposition of appropriate sentences. Sentences for this type of conduct must reflect the condemnation of the community of violent conduct aimed at officers performing their duties. General deterrence is a particularly important factor in the exercise of the sentencing discretion for this type of offending.

54           Notwithstanding the appellant's attempts at rehabilitation, and the existence of motivation to rehabilitate, given the appellant's record of offending, and the nature of that offending, personal deterrence also loomed large. In this context it should not be overlooked that the appellant's conduct on 19 September 2020 was in breach of bail granted on 3 August 2020, a little under six weeks earlier, in respect of the 2019 offending. It was also in breach of a recently imposed suspended sentence of imprisonment.

55          In my view, the sentence of 27 months is far from excessive. The sentence appropriately reflects the gravity of the appellant's total criminal conduct in September 2020.

Totality
56	The question of totality requires an understanding of the offending in respect of which the appellant was sentenced to imprisonment for six months, which was suspended, and which the sentencing judge activated. That offending occurred in May 2016 and April 2017.
57	The appellant pleaded guilty to two counts of unlawfully setting fire to motor vehicles, two counts of burglary of motor vehicles and two counts of stealing from those motor vehicles. Those offences were charged on indictment. In addition, the appellant pleaded guilty to offences charged on complaint, namely, driving while not the holder of a driver's licence, unlawfully interfering with a clamping device, burglary of a motor vehicle and injuring property, all of which offences occurred on either 30 April 2016 or 1 May 2016.

12   No 7/2021

58           The appellant also pleaded guilty to offences committed on 27 April 2017. He escaped lawful custody by driving off after an officer had sprayed him with capsicum spray, drove while disqualified and drove an unregistered and uninsured motor vehicle.

59           On 22 November 2018, the appellant was sentenced to a Drug Treatment Order, with a custodial component of 18 months' imprisonment. The appellant engaged in the program, but the Drug Treatment Order was cancelled on 11 March 2020 when the Bridge Program, although willing to accept the appellant directly from custody, changed their position because of COVID-19 and were no longer accepting new participants. After taking into account periods spent in custody and on remand, together with the period of sanctions served, on 22 July 2020 the appellant was re-sentenced to a period of imprisonment for six months from that day, which period was suspended on condition that the appellant commit no offence punishable by imprisonment for a period of 12 months.

60 As at 22 July 2020, court proceedings in respect of the offending committed in September 2019, with Mr Irwin, had not been finalised. The offending in September 2020 was in breach of the order suspending the sentence of imprisonment for six months. Section 27(6) of the Sentencing Act provides that unless the court otherwise orders, the activated sentence is to be served immediately, and cumulatively upon any other term of imprisonment.

61           The suspended sentence of six months was imposed for a series of offences committed in May 2016 and April 2017. They were serious offences. It was entirely within the range of the sentencing discretion, and in my view appropriate in the circumstances, for the sentencing judge to direct that the sentence of 21 months imposed for the criminal offending in September 2019 be served cumulatively upon the activated sentence of six months. The end result of that accumulation was not a manifestly excessive or crushing sentence.

62           The offending in September 2020 involved a different type of criminal conduct. It was dangerous and committed against officers carrying out their public duty in endeavouring to protect the community. Subject to the question of totality, it was appropriate for the sentencing judge to direct that the sentence imposed for such criminal conduct be served cumulatively upon the other sentences.

63           In my view, standing back and reflecting upon the appellant's total criminal conduct across a number of years, which involved a high level of culpability in committing numerous serious offences, and having regard to the appellant's appalling record of offending, the total period to be served of four years and six months is a "just and appropriate measure of the totality of criminal behaviour". The sentence is far from "crushing".

64           Further, the severity of the total sentence is ameliorated by the fixing of a non-parole period which the sentencing judge described as of "some significance". Given his prior offending, the appellant could not reasonably have complained if a significantly longer non-parole period had been fixed.

65   For these reasons, I agreed that the appeal be dismissed.