Nolan v The State of Western Australia
[2013] WASCA 235
•14 OCTOBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NOLAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 235
CORAM: BUSS JA
MAZZA JA
HALL J
HEARD: 10 SEPTEMBER 2013
DELIVERED : 14 OCTOBER 2013
FILE NO/S: CACR 285 of 2012
BETWEEN: RICHARD NOLAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 12 of 2013
BETWEEN :RICHARD NOLAN
Appellant
AND
JOHN GORDON LEE-KONG
Respondent
ON APPEAL FROM:
For File No : CACR 285 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 838 of 2012
For File No : CACR 12 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :PE 13544 of 2012, PE 13545 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted and sentenced in the District Court and the Magistrates Court on multiple offences of aggravated burglary and burglary - Pleas of guilty at the first reasonable opportunity - Voluntary disclosure of numerous offences which would otherwise have remained undetected - Significant prior criminal record - Appellant sentenced contemporaneously in the District Court and the Magistrates Court - Total effective sentence of 4 years' immediate imprisonment for the District Court offences - Total effective sentence of 2 years' immediate imprisonment for the Magistrates Court offences ordered to be served cumulatively - Total aggregate sentence of 6 years' imprisonment - Whether total aggregate sentence infringed the totality principle - Relevance of non-compliance by the magistrate with s 8(4) of the Sentencing Act 1995 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 13(2)
Criminal Code (WA), s 401(2)
Sentencing Act 1995 (WA), s 8(4), s 32
Result:
CACR 285 of 2012
Extension of time to appeal granted
Appeal dismissed
CACR 12 of 2013
Leave to appeal on ground 2 refused
Appeal allowed
Appellant resentenced
Category: B
Representation:
CACR 285 of 2012
Counsel:
Appellant: Mr S B Watters
Respondent: Mr L M Fox
Solicitors:
Appellant: Kim Farmer Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
CACR 12 of 2013
Counsel:
Appellant: Mr S B Watters
Respondent: Mr L M Fox
Solicitors:
Appellant: Kim Farmer Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Butler v The State of Western Australia [2012] WASCA 249
Clarkson v The State of Western Australia [2006] WASCA 250
Conley v The State of Western Australia [2013] WASCA 95
Drake v The State of Western Australia [2006] WASCA 209
Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130
Fullgrabe v The State of Western Australia [2013] WASCA 130
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Nguyen v The State of Western Australia [2007] WASCA 114
R v Ellis (1986) 6 NSWLR 603
Ridley v The State of Western Australia [2013] WASCA 45
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Schriever v The State of Western Australia [2008] WASCA 133
Spry v The State of Western Australia [2013] WASCA 68
BUSS JA: The appellant appeals to this court against a sentencing decision of Fenbury DCJ (the sentencing judge) and a sentencing decision of Magistrate Heaney (the magistrate).
The appeal from the magistrate has been referred to this court, pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA), to be heard together with the appeal from the sentencing judge.
The appellant requires an extension of time to appeal against the sentencing judge's decision. The delay in filing the appeal notice was modest and it has been adequately explained. I would grant the required extension.
The sentences imposed by the sentencing judge
On 13 November 2012, the appellant pleaded guilty in the District Court to four burglary offences, contrary to s 401(2) of the Criminal Code (WA) (the Code). On that date the sentencing judge imposed a total effective sentence of 4 years' immediate imprisonment. The sentence was backdated to 25 February 2012, when the appellant was taken into custody for the offences. A parole eligibility order was made.
The individual sentences were structured as follows:
Count
Details of Offence
Maximum Penalty
Penalty
Count 1
Aggravated burglary (place) 22 ‑ 23 May 2011 (in company) [victim Network Video North Beach]
Maximum penalty 20 years' imprisonment
2 years' imprisonment
Count 2
Burglary (place) 12 ‑ 13 June 2011 [victim Network Video North Beach]
Maximum penalty 14 years' imprisonment
1 year imprisonment concurrent
Count 3
Burglary (dwelling) 7 ‑ 11 October 2011 [victim Greg Sharpless]
Maximum penalty 18 years' imprisonment
1 year imprisonment concurrent
Count 4
Burglary (dwelling) 7 ‑ 11 October 2011 [victim Greg Sharpless]
Maximum penalty 18 years' imprisonment
2 years' imprisonment cumulative
The facts and circumstances of the District Court offences
The facts and circumstances of the District Court offences are as follows.
As to count 1, between 9.30 pm on 22 May 2011 and 9.00 am on 23 May 2011, the appellant entered the Network Video store at North Beach. The appellant was in company with an unidentified male accomplice. The store was closed. They gained entry by forcing the front door with a crowbar. The appellant and his accomplice stole 180 DVD and Blue‑ray discs, five bags of confectionary, 10 cans of soft drink and cash in an amount of $2,385.55. The total value of the stolen property was $12,734.65.
As to count 2, between 5.00 pm on 12 June 2011 and 5.30 am on 13 June 2011, the appellant again entered the Network Video store at North Beach. Once again, the store was closed. The appellant gained entry by forcing the rear door. He stole 54 Blue‑ray discs, four Blue‑ray disc covers, 20 packets of confectionary and a white table cloth. The total value of the stolen property was $2,716.30.
As to count 3, between 10.00 am on 7 October 2011 and 7.00 am on 11 October 2011, the appellant entered a dwelling at North Beach. He had entered the property unlawfully on a previous occasion. That offending was not before the court. The appellant entered the rear yard through a hole he had dug earlier under a fence. He entered the dwelling by forcing the rear door. The appellant stole a vacuum cleaner and two bottles of champagne. He departed in a Mercedes Benz vehicle he stole from the premises.
As to count 4, between 10.00 am on 7 October 2011 and 7.00 am on 11 October 2011, the appellant entered the dwelling at North Beach on a third occasion. He entered the rear yard and the premises in the same manner. The appellant used a key attached to the keys of the Mercedes Benz vehicle he had stolen on the second occasion to open a safe in the dwelling. He stole $US60,000 and €10,000. He also stole business and banking documents which he intended to use fraudulently. However, he later destroyed the documents by burning them.
On 24 February 2012 the appellant was arrested. The police told him they were investigating two burglaries. The appellant then proceeded voluntarily to disclose his guilt in relation to a series of offences since 2003. This voluntary disclosure of guilt formed the basis of the vast majority of the charges brought against him in the District Court and the Magistrates Court.
The sentences imposed by the magistrate
On 21 November 2012, the appellant was sentenced in the Magistrates Court for 19 offences (of which 17 were burglary offences) to which he had pleaded guilty on 17 July 2012. The magistrate imposed a total effective sentence of 2 years' immediate imprisonment. He ordered that this sentence be served cumulatively upon the 4 year term imposed by the sentencing judge.
The aggregate sentence was therefore 6 years' imprisonment.
The magistrate structured the individual sentences as follows:
No Offence Maximum Penalty Date of Offence Penalty 1 5875/12 Disorderly conduct $6,000 5 December 2011 $500 2 Trespass 12 months / $12,000 1 September 2009 3 months' imprisonment 3 16243/12 Attempted burglary (dwelling) 3 years / $36,000 (summary); 9 years (indictable) 29 July 2011 9 months' imprisonment 4 13543/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 25 ‑ 26 December 2003 9 months' imprisonment 5 13544/12 Burglary (dwelling) 3 years / $36,000 (summary); 18 years (indictable) 15 ‑ 17 February 2007 12 months' imprisonment cumulative 6 13545/12 Burglary (dwelling) 3 years / $36,000 (summary); 18 years (indictable) 9 ‑ 12 November 2008 12 months' imprisonment cumulative 7 13546/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 5 ‑ 6 June 2009 9 months' imprisonment 8 13547/12 Aggravated burglary (in company) 3 years / $36,000 (summary); 20 years (indictable) 19 ‑ 20 July 2009 9 months' imprisonment 9 13548/12 Aggravated burglary (in company) 3 years / $36,000 (summary); 20 years (indictable) 19 ‑ 20 July 2009 9 months' imprisonment 10 13549/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 24 ‑ 25 July 2009 9 months' imprisonment 11 13550/12 Burglary (dwelling) 3 years / $36,000 (summary); 18 years (indictable) 30 ‑ 31 October 2010 12 months' imprisonment 12 13551/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 26 November 2010 9 months' imprisonment 13 13554/12
Burglary
2 years / $24,000 (summary); 14 years (indictable) 19 ‑ 20 July 2011 9 months' imprisonment 14 13556/12 Burglary (dwelling) 3 years / $36,000 (summary); 18 years (indictable) 2 ‑ 3 August 2011 12 months' imprisonment 15 13557/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 12 ‑ 13 August 2011 9 months' imprisonment 16 13558/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 18 ‑ 19 August 2011 9 months' imprisonment 17 13559/12 Burglary 2 years / $24,000 (summary); 14 years (indictable) 22 August 2011 9 months' imprisonment 18 13560/12 Aggravated burglary
(in company)
3 years / $36,000 (summary); 20 years (indictable) 1 September 2011 9 months' imprisonment 19 13561/12 Burglary (dwelling) 3 years / $36,000 (summary); 18 years (indictable) 1 September 2009 12 months' imprisonment
The facts and circumstances of the Magistrates Court offences
The facts and circumstances of the Magistrates Court offences are as follows:
(a)5875 of 2012 - On 5 December 2011 at Karrinyup, the appellant behaved in a disorderly manner by using profane language at the Karrinyup Shopping Centre;
(b)charge number undetermined - On 1 September 2009 at Sorrento, the appellant trespassed without lawful excuse on a property;
(c)16243 of 2012 - On 29 July 2011 at North Beach the appellant, without consent, attempted to enter the dwelling of Arthur Pakos with intent to commit an offence therein;
(d)13543 of 2012 - Between 25 and 26 December 2003 at Sorrento the appellant, without consent, was in the place of the White Salt Restaurant and committed an offence therein of stealing;
(e)13544 of 2012 - Between 15 and 17 February 2007 at Sorrento the appellant, without consent, was in the dwelling of Mary Hetherington and committed an offence therein of stealing;
(f)13545 of 2012 - Between 9 and 12 November 2008 at Toodyay the appellant, without consent, was in a dwelling and committed an offence therein of stealing;
(g)13546 of 2012 - Between 5 and 6 June 2009 at Toodyay the appellant, without consent, was in the place of Courtyard Antiques and Collectables and committed an offence therein of stealing;
(h)13547 of 2012 - Between 19 and 20 July 2009 at Toodyay the appellant, without consent, was in the place of Chemmart Pharmacy and committed an offence therein of stealing in circumstances of aggravation, namely being in company;
(i)13548 of 2012 - Between 19 and 20 July 2009 at Toodyay the appellant, without consent, was in the place of L J Hooker and committed an offence therein of stealing in circumstances of aggravation, namely being in company;
(j)13549 of 2012 - Between 24 and 25 July 2009 at Toodyay the appellant, without consent, was in the place of Chemmart Pharmacy and committed an offence therein of stealing;
(k)13550 of 2012 - Between 30 and 31 October 2010 at Karrinyup the appellant, without consent, was in the dwelling of Robert Pring and committed an offence therein of stealing;
(l)13551 of 2012 - On 26 November 2010 at Waterman's Bay the appellant, without consent, was in the place of Wild Fig Café and committed an offence therein of stealing;
(m)13554 of 2012 - Between 19 and 20 July 2011 at North Beach the appellant, without consent, was in the place of Azura Beauty and Spa with intent to commit an offence therein;
(n)13556 of 2012 - Between 2 and 3 August 2011 at North Beach the appellant, without consent, was in the dwelling of Peter Ernst Bulling and committed an offence therein of stealing;
(o)13557 of 2012 - Between 12 and 13 August 2011 at Toodyay the appellant, without consent, was in the place of Courtyard Antiques and Collectables with intent to commit an offence therein;
(p)13558 of 2012 - Between 18 and 19 August 2011 at North Beach the appellant, without consent, was in the place of Royal Drycleaners and Laundrobar and committed an offence therein of stealing;
(q)13559 of 2012 ‑ On 22 August 2011 at Marmion the appellant, without consent, was in the place of Marmion Angling and Aquatic Club and committed an offence therein of stealing;
(r)13560 of 2012 - On 1 September 2011 at Sorrento the appellant, without consent, was in the place of Seacrest Gourmet Delicatessen and News with intent to commit an offence therein in circumstances of aggravation, namely being in company; and
(s)13561 of 2012 ‑ On 19 September 2011 at Trigg the appellant, without consent, was in the dwelling of Jane Mahoney and committed an offence therein of stealing.
The appeal from the decision of the sentencing judge: the ground of appeal
The sole ground in the appeal against the decision of the sentencing judge alleges that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle.
On 13 April 2013, Mazza JA granted leave to appeal on this ground.
The appellant does not challenge any of the individual sentences.
The appeal from the decision of the magistrate: the grounds of appeal
The appellant relies on two grounds in his appeal against the decision of the magistrate.
Ground 1 alleges that the magistrate imposed a total effective sentence which infringed the first limb of the totality principle.
Ground 2 alleges that his Honour erred when, contrary to s 8(4) of the Sentencing Act 1995 (WA), 'he failed to state [that] the sentence he imposed had taken account of the appellant's pleas of guilty and voluntary disclosure of guilt'.
On 13 April 2013, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.
The appellant does not allege that any individual sentence was manifestly excessive.
The organisation of the balance of these reasons
The proper approach for this court in relation to the appellant's complaint about totality, as embodied in the ground of appeal from the decision of the sentencing judge and ground 1 of the appeal from the decision of the magistrate, is to consider whether the aggregate sentence of 6 years' imprisonment infringed the first limb of the totality principle. This approach is mandated by the reasoning and decision in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 ‑ 67 (Wilson, Deane, Dawson, Toohey & Gaudron JJ). Totality should not be considered separately by reference to each sentencing decision under appeal.
I will consider, first, the merits of the appellant's complaint about totality and then examine the merits of ground 2 of the appeal against the decision of the magistrate.
The merits of the appellant's complaint about totality
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The primary sentencing considerations in relation to burglary and aggravated burglary are personal and general deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for these offences were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. See also Butler v The State of Western Australia [2012] WASCA 249; Ridley v The State of Western Australia [2013] WASCA 45; Spry v The State of Western Australia [2013] WASCA 68; Conley v The State of Western Australia [2013] WASCA 95; Fullgrabe v The State of Western Australia [2013] WASCA 130; and the cases cited in those decisions. Burglaries and aggravated burglaries can be and are, of course, committed in a wide range of circumstances and the sentence to be imposed for a particular offence must be commensurate with the seriousness of the particular offence, after taking into account the maximum penalty, the circumstances of the offending (including the vulnerability of any victim), any aggravating factors and any mitigating factors.
The appellant was born on 13 March 1970. He was aged 42 when sentenced. Since 2003 he has resided in Western Australia.
The numerous offences committed by the appellant involved serious offending of its kind. He burgled dwellings and commercial premises. Although the burglaries were committed primarily to finance the appellant's drug addiction, his actions were those of a career criminal. He wore gloves and took other steps to avoid leaving fingerprints or DNA. He buried most of the stolen cash and used it over a number of months to support his lifestyle. He arranged for a friend to deposit some of the cash into his bank account.
Count 4 on the indictment before the sentencing judge was particularly serious. This offence involved the appellant returning to the same residential premises the subject of count 3. It was the third occasion on which he had entered the dwelling without consent. The appellant stole substantial amounts of cash and significant items of property. He later destroyed some of the property. All of these actions caused, no doubt, significant distress and inconvenience for the victims of this offending.
The appellant has an extensive prior criminal record in Queensland, New South Wales and Western Australia. He has offended for a large portion of his life. The appellant was first placed in detention in Sydney at the age of 14. He has been imprisoned on numerous occasions in New South Wales for dishonesty offences. He has also been imprisoned in Queensland. The appellant has admitted that the Queensland and New South Wales documentary records are incomplete and do not depict the entirety of his offending. He has prior convictions in Western Australia for relatively minor offences, including traffic matters, possession of prohibited drugs, damaging property and stealing, but he has not previously been imprisoned in this State.
The information before the sentencing judge and the magistrate included a report dated 18 August 2012 from a clinical and forensic psychologist, Ms Tanina Oliveri, and a pre‑sentence report dated 6 September 2012.
The appellant had a dysfunctional childhood. It was marred by instability and physical and emotional abuse. He began using cannabis when he was 12 or 13. His drug abuse quickly escalated and included heroin and cocaine by the age of 16.
The appellant lived in refuges and associated with older career criminals from 16 until he was about 30. He then met and married a woman with whom he had a daughter. The marriage was stable for a few years but, from 2003, he resumed his drug abuse. This culminated in the disintegration of his marriage in 2009. He then began offending regularly.
Ms Oliveri assessed the appellant as being at a high risk of reoffending in a similar manner. He has many treatment needs.
There were a number of mitigating factors. The appellant entered pleas of guilty at the first reasonable opportunity. He was remorseful and showed some victim empathy. When interviewed by the police he voluntarily confessed to having committed a large number of burglaries over a period of about nine years. The confessions were detailed. He described how the offences were committed and revealed what was stolen. Most of the offences would never have been solved if the appellant had not voluntarily confessed. The appellant told Ms Oliveri that he had voluntarily disclosed all of his past offences because he wanted to 'start afresh'. Since being detained in custody on 25 February 2012, he has completed several drug rehabilitation and educational courses.
The pleas of guilty at the first reasonable opportunity demonstrated the appellant's remorse, an acceptance of responsibility for his criminal behaviour and a willingness to facilitate the course of justice.
There is no doubt that the voluntary disclosure of offences which may remain undetected, but for the offender's disclosure and cooperation with the police, can be a significant mitigating factor. See R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt & Allen JJ agreeing); Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] ‑ [13] (McHugh J); Schriever v The State of Western Australia [2008] WASCA 133 [22] (Steytler P); Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 [28] (Buss JA, Owen & Miller JJA agreeing).
In my opinion, the aggregate sentence of 6 years' imprisonment does not bear a proper relationship to the overall criminality involved in all of the offences, viewed together, and after taking into account the maximum penalties, the objective seriousness of the offending, the vulnerability of the victims and all aggravating and mitigating factors. The 6 year term exceeded the sentence that was required to satisfy all sentencing objectives including punishment, retribution and personal and general deterrence. The nature and extent of the appellant's voluntary disclosure of offences, most of which would not otherwise have been solved, was the decisive factor in the formation of my opinion on this point.
The appellant's complaint about totality has been made out.
The merits of ground 2 of the appeal from the magistrate's decision
Ground 2 of the appeal from the magistrate's decision asserts, in essence, that his Honour erred when, contrary to s 8(4) of the Sentencing Act, he failed to state in open court that he had reduced the sentences he would otherwise have imposed because of the mitigating factors of the appellant's pleas of guilty and his voluntary disclosure of guilt.
The magistrate sentenced the appellant before the commencement of s 9AA of the Sentencing Act, which was introduced by the Sentencing Amendment Act 2012 (WA).
By s 8(4) of the Sentencing Act, where a court reduces the sentence it would otherwise have imposed on an offender because of a mitigating factor, the court must state that fact in open court.
The magistrate did not comply with s 8(4). However, a failure to comply with s 8(4), by omitting to state in open court that a reduction has been made, is not an appealable error. Non‑compliance with s 8(4) does not invalidate the sentence. See Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59] (Owen JA).
It was well established, before the introduction of s 9AA, that a sentencing judge was not obliged to specify the amount or the percentage by which a term of imprisonment had been reduced to reflect a plea of guilty. See Clarkson v The State of Western Australia [2006] WASCA 250 [31] (McLure JA); Royer [59]. That conclusion, and the reasoning which supported it, also applies to a reduction in sentence to reflect the voluntary disclosure of offences which may have remained undetected.
Ground 2 does not assert that the magistrate did not in fact discount any sentence he would otherwise have imposed on account of the pleas of guilty and the voluntary disclosure of the offences. Also, ground 2 does not challenge the length of any of the individual sentences.
In any event, I am not persuaded that his Honour did not take into account the pleas of guilty and the voluntary disclosure of the offences as mitigating factors and, on account of those factors, reduce the individual sentences he would otherwise have imposed. Also, I am not persuaded that his Honour did not take those matters into account in deciding upon his orders for concurrency and accumulation. His Honour expressly referred to the pleas of guilty 'some time ago' and to defence counsel's submissions about the appellant's attempts to rehabilitate himself (ts 9). Defence counsel had made detailed submissions about the appellant's voluntary disclosure of the offences (ts 7 ‑ 9).
Ground 2 is without merit. I would refuse leave to appeal on this ground.
The result of the appeals and the resentencing of the appellant
This court has the materials necessary to resentence the appellant. The materials include the information before the sentencing judge and the magistrate and, also, information in an affidavit sworn 12 August 2013 by the appellant's solicitor, Kim Marla Farmer. Ms Farmer's affidavit annexes numerous certificates and other documents relating to programmes and courses the appellant has completed since 25 February 2012, when he was taken into custody for the offences in question. The certificates and other documents indicate that the appellant has made determined and commendable efforts towards his rehabilitation.
In my opinion, the total criminality of all of the appellant's offending (that is, the District Court offences and the Magistrates Court offences) would be properly marked, and all relevant sentencing principles would be satisfied, by an aggregate sentence of 4 years' immediate imprisonment.
The length of the individual sentences of imprisonment has not been challenged. They should stand.
The new aggregate sentence of 4 years' immediate imprisonment should be achieved as follows:
(a)the appeal from the sentencing judge's sentencing decision should be dismissed;
(b)the appeal from the magistrate's sentencing decision should be allowed;
(c)the orders made by the magistrate in relation to the concurrency and accumulation of the individual sentences of imprisonment he imposed should be set aside;
(d)all of the individual sentences of imprisonment imposed by the magistrate should be served concurrently with each other and concurrently with the term of 2 years' imprisonment imposed by the sentencing judge for count 1 on the indictment;
(e)the new aggregate sentence of 4 years' immediate imprisonment is to be taken to have taken effect on 25 February 2012.
The appellant remains eligible for parole.
A concluding observation
Finally, I note that it was highly undesirable for there to have been separate sentencing hearings and decisions in respect of the offences in question. The Magistrates Court offences should have been dealt with in the District Court on a notice under s 32 of the Sentencing Act. Neither counsel for the appellant nor counsel for the respondents was able to explain why this did not occur.
MAZZA JA: I have had the advantage of reading in draft Buss JA's reasons. I respectfully agree with the orders he proposes for the reasons that he gives. I wish to make two brief comments of my own.
First, there appears to be no good reason why the offences that were ultimately dealt with by the learned magistrate should not have been dealt with by Fenbury DCJ pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). Counsel was unable to explain why this occurred. The proceedings before the learned magistrate occurred only eight days after those before Fenbury DCJ. It is desirable in cases such as this for one court to sentence an offender on all charges with the aim of ensuring that the total effective sentence complies with the totality principle. Unnecessary fragmentation of the proceedings, as apparently occurred here, can increase the risk of an infringement of the totality principle.
Second, I wish to make it clear that, absent the appellant's voluntary disclosure of his offending, the total effective sentence of 6 years' imprisonment would not have warranted appellate intervention. An offender's voluntary disclosure of offences will ordinarily be a significant mitigating factor in addition to any other mitigating factor, including an offender's admission of guilt. Apart from the true remorse that voluntary disclosure generally demonstrates, there is a clear public interest in offenders making such disclosures. Voluntary disclosure means that offences which were previously undetected or unresolved are brought to light and finally disposed of. Such disclosure may provide some degree of comfort and vindication for the victim.
In the present case, the appellant's voluntary disclosures were extensive and detailed. They were an important factor to be weighed when gauging the overall circumstances of the case.
HALL J: I agree with Buss JA.
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