O'Byrne v Whitney - [2016] WASC 420

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: O'BYRNE -v- WHITNEY [2016] WASC 420

CORAM: FIANNACA J

HEARD: 13 OCTOBER 2016

DELIVERED : 23 DECEMBER 2016

FILE NO/S: SJA 1049 of 2016

BETWEEN: JARRAD CARL O'BYRNE
Appellant
AND
DANIEL GRAHAM WHITNEY
DAVID WILLIAM CLIFFORD HORNE
PIERIS CHRISTOS PIERI
RAYMOND PAUL WRIGHT
CIARAN CLEARY
JAMES ALEXANDER BUTLER
SEAN TYSON ROMAN
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HEANEY
File No  :PE 101005 of 2014, PE 101006 of 2014, FR 10031 of 2014, FR 10032 of 2014, PE 23484 of 2015, PE 23485 of 2015, PE 23486 of 2015, PE 23487 of 2015, PE 27067 of 2015, PE 27068 of 2015, PE 59157 of 2015, PE 59158 of 2015, PE 115334 of 2014, MH 4375 of 2015

Catchwords:

Criminal law - Appeal against sentence - Whether total aggregate sentence breached totality principle - 'Single sentencing exercise approach' - No substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14(2)(6)
Sentencing Act 1995 (WA), s 6, s 8, s 9AA

Result:

Leave refused in respect of ground 1
Leave granted in respect of grounds 2 and 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Watters
Respondents : Ms K C Cook

Solicitors:

Appellant: Michael Tudori & Associates
Respondents : Director of Public Prosecutions (WA)

Cases referred to in judgment:

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34
Anderson v The State of Western Australia [2014] WASCA 167
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Bransby v The Queen [2010] WASCA 165
Bropho v The Queen (Unreported, WASCA, Library No 940197, 14 April 1994)
Burrows v The State of Western Australia [2014] WASCA 147
Butler v The State of Western Australia [2012] WASCA 249
Clinch v The Queen (1994) 72 A Crim R 301
Douglas v Ferguson [2012] WASC 207
Drake v The State of Western Australia [2006] WASCA 209
Forkin v The State of Western Australia [2013] WASCA 51
Hume v The Queen [2000] WASCA 306; (2000) MVR 203
Jarvis v The Queen (1993) 20 WAR 201
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kirby v The State of Western Australia [2016] WASCA 199
LJH v The State of Western Australia [2016] WASCA 155
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mippy v The State of Western Australia [2012] WASCA 254
Moreton v The State of Western Australia [2011] WASCA 258
Nancarrow v The State of Western Australia [2006] WASCA 238
Nolan v The State of Western Australia [2013] WASCA 235
Pelemis v The State of Western Australia [2009] WASCA 151
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Larsen (1989) 44 A Crim R 121
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Todd [1982] 2 NSWLR 517
Roberts v The State of Western Australia [2014] WASCA 239
Roffey v The State of Western Australia [2007] WASCA 246
Samson v The State of Western Australia [2011] WASCA 173
Saraceno v The State of Western Australia [2015] WASCA 100
Tela v The State of Western Australia [No 2] [2014] WASCA 103

Table of Contents

Summary of the appeal and outcome
The charges and outcomes
Sentencing in District Court on 25 February 2016
Facts of the offences the subject of this appeal

Aggravated burglary ‑ 21 August 2014
Aggravated reckless driving ‑ 12 May 2015
Stealing motor vehicles

The sentencing proceedings before the magistrate
The grounds of appeal
Ground 1 ‑ Totality principle

The general principle
The magistrate had regard to totality
The appellant's submission
The 'single sentencing exercise' approach
Other cases distinguished
Consideration of the appellant's argument
Assessment of the totality of the appellant's offending
Appellant's personal circumstances
Conclusion as to Ground 1

Ground 2 ‑ Failure to take into account plea of guilty and antecedents

Section 9AA
Whether magistrate took into account other mitigating factors
Conclusion on Ground 2

Ground 3 ‑ Sentencing of the appellant in his absence

Conclusion
Annexure 1

FIANNACA J:

Summary of the appeal and outcome

The appellant has applied for leave to appeal against sentences imposed on him in the Perth Magistrates Court on 22 June 2016. He was sentenced for 14 offences, including home burglaries, stealing motor vehicles and reckless driving, and received a combination of terms of imprisonment and fines. The terms of imprisonment were structured to result in a total effective sentence of 2 years' imprisonment, to be served cumulatively on a term of 2 years' imprisonment he was then serving. The appeal is against that total effective sentence.
The magistrate erred by sentencing the appellant in his absence. He also failed to state what discount, if any, he allowed for the fact the appellant had pleaded guilty. However, the real issue in this appeal is whether the cumulation of the total effective sentence imposed by the magistrate upon the sentence the appellant was already serving resulted in a sentence that was unreasonable and unjust because it breached the totality principle. The appellant contends that it was necessary for the magistrate to have regard to the totality of the appellant's offending constituted by the offences he was dealing with and those for which he was already serving a sentence, and the aggregate of 4 years' imprisonment exceeded what was a proper measure of punishment for the total offending.
For the reasons that follow, I have concluded that the total effective sentence imposed by the magistrate, and its cumulation on the sentence the appellant was already serving, did not breach the totality principle. Further, the errors made by the magistrate in the sentencing process did not result in a substantial miscarriage of justice, because I do not consider that a different sentence should be imposed.

The charges and outcomes

The appellant was charged with 14 offences. He pleaded guilty to those charges in the Perth Magistrates Court on 20 May 2016.[1] He was sentenced for the 14 offences by the learned magistrate on 22 June 2016. The charges, including the dates of the offences, and the penalties (excluding disqualifications[2]) imposed by the learned magistrate are set out in a table in Annexure 1 to these reasons.[3]
[1] Although the date of the pleas was not referred to in the magistrate's sentencing remarks, it is recorded on the electronic prosecution notices which are part of the Magistrates Court's record forwarded to the Supreme Court.
[2] The orders disqualifying the appellant from holding a driver's licence are not relevant to the determination of the appeal.
[3] This is based on a table contained in the respondent's submissions.
The offending spanned from 12 November 2012 to 6 October 2015. However, the most serious offences occurred in August 2014, April 2015 and May 2015. They included one count of home burglary (21 August 2014), four counts of stealing a motor vehicle (August and September 2014; April and May 2015) and aggravated reckless driving to escape pursuit by police (12 May 2015). The three other traffic offences with which the appellant was charged, which were committed on the same day as the aggravated reckless driving, were associated with that driving. He was not authorised to drive, never having held a valid driver's licence and having been disqualified from holding one; the vehicle had false number plates; and he failed to stop when called upon to do so.
As appears from Annexure 1, the magistrate sentenced the appellant to terms of imprisonment for nine of the 14 offences. He was sentenced to 18 months' imprisonment for the aggravated reckless driving to escape a police pursuit, and to 6 months' imprisonment for each of the burglary offences, the offences of stealing a motor vehicle and the driving offences connected with the aggravated reckless driving. The sentence for the home burglary on 21 August 2014 was ordered to be served cumulatively on the sentence for the aggravated reckless driving, hence the aggregate of 2 years' imprisonment, and both of those sentences were ordered to be served cumulatively on the sentence the appellant was already serving. By the operation of s 88 of the Sentencing Act 1995 (WA), the other sentences are to be served concurrently.[4] The appellant was made eligible for parole.
[4] Sentencing Act 1995 (WA) s 88 provides that a sentence is to be served concurrently unless the court orders otherwise.

Sentencing in District Court on 25 February 2016

One of the charges of stealing a motor vehicle (PE 101005/14) for which the appellant was sentenced by the magistrate was connected with an offence of aggravated home burglary (PE 101004/14) committed on or about 1 September 2014, for which he was sentenced in the District Court on 25 February 2016 by Petrusa DCJ. Neither the magistrate nor this court was provided with transcript of her Honour's sentencing remarks. Given that the appellant's essential contention on this appeal is that it is necessary to have regard to the totality of his offending, in particular from August 2014 until May 2015, the facts upon which Petrusa DCJ sentenced the appellant, and the considerations she took into account, ought to have been made available to the magistrate and this court. In my opinion, it is obvious that they would be relevant to assessing the totality of the offending conduct. However, the appeal can be determined on the materials that are available.
The respondent provided the following information which assists to provide some context to the sentence imposed by Petrusa DCJ. The aggravated home burglary for which the appellant was sentenced by her Honour breached a suspended imprisonment order imposed in the Magistrates' Court on 4 June 2014. Petrusa DCJ sentenced the appellant to 18 months' imprisonment for the aggravated home burglary and ordered him to serve 6 months' imprisonment, cumulative, in respect of the offence for which he had been on a suspended imprisonment order. The total effective sentence of 2 years' imprisonment was backdated to commence on 17 May 2015. The appellant was made eligible for parole.
The respondent noted that the backdating of the sentence by Petrusa DCJ was by 285 days, which appears to account for time the appellant spent in custody on remand for the offences the subject of this appeal. That was not disputed on behalf of the appellant. The significance of that is that there was no further accounting to be allowed for that time by the magistrate
I was also provided with the statement of material facts for the aggravated home burglary for which the appellant was sentenced by Petrusa DCJ on indictment. I note that the statement of material facts was available to the magistrate as part of the materials concerning the offence of stealing a motor vehicle (PE 101005/14) for which he sentenced the appellant. The facts of the aggravated burglary are that on 1 September 2014, the appellant entered a home in Cottesloe through an unlocked rear door while the occupants were asleep. He stole the keys to their vehicle, which he then used to steal the vehicle from the garage.
I was not provided with the facts for the offence for which the appellant was on a suspended imprisonment order. However, as he was originally sentenced for that offence in June 2014, it is obvious the offence was committed well before the offences he committed in August 2014.

Facts of the offences the subject of this appeal

As the complaint in this appeal is essentially in respect of the cumulation of the sentences imposed for the offence of reckless driving to escape pursuit by police (PE 23485/15) and one of the offences of aggravated home burglary (FR 10031/14) upon the sentence the appellant was already serving, it is necessary to consider the facts for those offences. They were the only offences for which the magistrate asked the prosecutor to state the facts aloud. In respect of the other offences, he had regard to the written statements of material facts.

Aggravated burglary ‑ 21 August 2014

The aggravated home burglary occurred on 21 August 2014. The appellant entered the victim's home in Hammond Park through an unlocked rear door between 9.00 am and 2.00 pm. He went to the main bedroom where he stole a number of items of jewellery and jewellery boxes. The jewellery included an engagement ring and two wedding rings. The total value of the property stolen was approximately $3,000. The appellant left a cigarette butt behind and he was subsequently identified by his DNA on the butt. He was apprehended by police on 17 September 2014, when he was in a vehicle with housebreaking implements and jewellery for which he could not account.

Aggravated reckless driving ‑ 12 May 2015

The facts of the reckless driving offence were that around 10.20 pm on 12 May 2015, the appellant rode a 750 cc motorcycle west on Orrong Road in Carlisle. Police officers who were at a service station heard the motorcycle accelerate heavily as it came past their location. The officers then gave chase in their marked police vehicle, in order to speak with the rider about his manner of driving. They caught up with the motorcycle at the Graham Farmer Freeway, where they were able to ascertain that it was travelling at between 125 and 130 km/h. The speed limit at that location was 80 km/h. The driver of the police vehicle positioned the vehicle alongside the motorcycle, activated the emergency lights and called on the appellant to stop. The appellant failed to stop. Instead, he responded by accelerating, cutting in front of the police vehicle and continuing onto the Victoria Park Avenue off-ramp at speed in order to evade the police who were in pursuit. At the time, there were roadworks on the off-ramp. The appellant then crossed Victoria Park Avenue, contravening a red traffic light, and re-entered the Graham Farmer Freeway.
The appellant reached speeds of approximately 160 km/h, outpacing the pursuing vehicle. The pursuit continued into the Northbridge Tunnel at a speed of approximately 140 km/h. The speed limit in the tunnel is 80 km/h. The appellant then took the Loftus Street exit onto Cambridge Street, where the speed limit is 60 km/h. He contravened a red traffic light as he accelerated heavily across Thomas Street, reaching a speed of approximately 150 km/h on Cambridge Street, where he rode onto the incorrect side of the road whilst overtaking slower moving vehicles. He contravened a red traffic light at the intersection of Cambridge Street and Harbourne Street. The pursuit then continued on Bold Park Drive, The Boulevarde and Durston Road in the suburbs of Floreat and Wembley Downs, with the appellant reaching speeds in excess of 120 km/h. He lost control of the motorcycle when he braked heavily as he approached the T‑junction of Durston Road and Empire Avenue, at a speed of 70 km/h. The motorcycle fell on its side and the appellant was thrown off. He rolled on the roadway before getting up and attempting to run from the police. However, he was apprehended before he could escape.
The appellant received minor injuries. He did not hold a driver's licence at the time and was in fact disqualified from holding one. The registration plate affixed to the motorcycle was not the plate issued for that motorcycle. In other words, it was a false plate. The appellant admitted he had put it on the motorcycle, having received the plate from an associate.

Stealing motor vehicles

Although the facts for the offences of stealing motor vehicles were not stated aloud, I have the written statements of material facts that were before the magistrate, and it is appropriate to summarise the facts as follows. The first, on 23 August 2014, involved a BMW sedan that had been stolen from the owner's home, following a burglary. The accused was in possession of the car and assumed control of it between 23 August and 2 September 2014. He was identified by DNA found on the steering wheel.
The second offence involved the theft of a Mercedes Benz sedan after the burglary in Cottesloe on 1 September 2014 (for which the appellant was sentenced in the District Court).
The third offence, on 11 and 12 April 2015, involved the theft of a Subaru Impreza sedan from the owner's home in Palmyra, after the keys were stolen during a burglary on the home. The vehicle was later found abandoned. Again, the appellant was identified by DNA found in the vehicle.
The fourth offence was committed on 26 May 2015. The victim had loaned his vehicle to an associate on 24 May 2015, but it was not returned. On 26 May 2015, the vehicle was observed by police while it was being driven in a reckless manner and at high speed in the Shire of Waroona. The driver failed to stop for police. The vehicle was seen again on 27 May 2015 in East Victoria Park. The driver sped off to evade police. The vehicle crashed into a pole and two male offenders managed to escape. A third offender was apprehended by the police. A mobile telephone and wallet belonging to the appellant were found in the car.

The sentencing proceedings before the magistrate

When the appellant came to be sentenced by the magistrate, he was in custody, serving the term of imprisonment imposed by Petrusa DCJ, and was to appear by video link from prison. The link was not working. The magistrate said to the appellant's counsel, 'I believe you're happy to proceed in his absence.' The appellant's counsel answered in the affirmative. The matter then proceeded in the absence of the appellant.
The magistrate said he had read the facts, but asked for the facts for the aggravated reckless driving and the burglary offences to be stated aloud. After the facts were read by the prosecutor, the appellant's counsel informed the magistrate that the facts were accepted and that it was conceded imprisonment was the only available option. He then said that essentially his argument was going to be 'one of totality' and he referred to the sentence of 2 years' imprisonment that had been imposed in the District Court, but he did not develop the totality argument beyond asking the magistrate to take it into account. He did not submit that there should be no cumulation of the sentences to be imposed by the magistrate upon the sentence the appellant was already serving. He outlined the appellant's personal circumstances, including his work history and drug use and the periods he had spent in custody.
In sentencing, the magistrate noted that the pleas of guilty had been entered before another magistrate and that sentencing had later been adjourned to obtain a pre-sentence report. His Honour said he had read the pre-sentence report and was familiar with the appellant's background. His Honour noted that counsel had referred him to the totality principle, which his Honour referred to as the 'total overall principle' and the 'enough is enough principle', particularly by reference to the sentence in the District Court. His Honour correctly observed that it had not been submitted on behalf of the appellant that no additional penalty was warranted for the offences he was dealing with. He was of the opinion that the sentence imposed in the District Court was not such as to justify making the sentences he was imposing totally concurrent with the sentence the appellant was serving.
Although the language used by his Honour was, with respect, somewhat confusing, in my opinion, a fair reading of his remarks reveals he was of the view that the sentence imposed in the District Court did not sufficiently reflect the total criminality of the offences for which the appellant was sentenced in the District Court and those with which the magistrate was dealing, which he considered to be serious offences. In particular, his Honour considered that the offence of aggravated reckless driving was a serious example of that kind of offence, especially when one had regard to the fact the appellant had previously been convicted of an offence of a similar nature in 2013. It is also apparent that his Honour regarded the burglary offence of 21 August 2014 to be particularly serious, as it was the other offence for which he required the facts to be stated aloud. His Honour's approach to those two offences explains his decision to order that the sentences for them be served cumulatively on the sentence imposed in the District Court.

The grounds of appeal

The appeal is brought pursuant to s 7 of the Criminal Appeals Act 2004 (WA). The appellant relies on three grounds of appeal. Leave is required on each ground of appeal, and must not be given unless the ground has a reasonable prospect of succeeding.[5] The grounds are:
[5] Criminal Appeals Act 2004 (WA) s 9.
1.The learned sentencing magistrate erred in imposing a total aggregate sentence that breached the first limb of the totality principle, having regard to the overall criminality involved in all of the offences, particularly given the appellant was serving a term of imprisonment and the fact that the sentences were ordered to be served cumulative upon the appellant's previously imposed District Court sentence.
2.The sentencing magistrate erred when, contrary to sections 6(2)(d) and 9AA of the Sentencing Act 1995, he failed to have regard to relevant mitigating factors;
Particulars
2.1The plea of guilty;
2.2The appellant's antecedents.
3.The learned sentencing Magistrate erred when, contrary to section 14(1) of the Sentencing Act 1995, he proceeded to sentence the appellant in the appellant's absence.
It is important to note that, as argued, grounds 2 and 3 do not contend that the alleged errors resulted in individual sentences that were manifestly excessive. Rather, the submission was that if this court is required to resentence the appellant as a result of either or both of those errors, the court should conclude that the totality principle requires the imposition of a sentence that is structured so that the aggregate with the sentence imposed by the District Court is significantly less than 4 years' imprisonment.
I also note that the appellant did not argue in respect of ground 1 that any of the individual sentences was manifestly excessive having regard to all relevant sentencing considerations, including the appellant's pleas of guilty. In fact, the appellant's counsel on several occasions during oral argument disavowed any reliance on such a contention. Indeed, he acknowledged that the sentence for the aggravated reckless driving was 'comfortably within a range' and the sentence for the home burglary offence was, in isolation, 'a good result for [the appellant]'. As counsel put it, 'I couldn't stand here and say six months is within range for a burglary.'[6]
[6] Appeal ts 9.
The issue is whether the cumulation of those two sentences upon each other and upon the sentence imposed in the District Court resulted in an aggregate that erroneously exceeded what was a proper measure for the totality of the offending.

Ground 1 ‑ Totality principle

The general principle

The first limb of the totality principle requires that a judicial officer sentencing an offender for a number of offences must ensure that the aggregate of the sentences appropriate for each offence bears a proper relationship to the total criminality involved in all of the offences (including those, if any, in respect of which the offender is already serving a term of imprisonment),viewed in their entirety and having regard to all of the relevant circumstances, including the offender's personal circumstances and the total effective sentences imposed in comparable cases.[7] A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.[8] It has also been recognised that the severity of a sentence may increase exponentially relative to the increase in length of the sentence.[9] The totality principle can be accommodated by the structuring of a total effective sentence, by determining whether sentences are to be served cumulatively or concurrently, but in some cases it may be necessary to reduce the individual sentences.[10]
[7] Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA (as she then was); Steytler P and Miller JA agreeing); Nolan v The State of Western Australia [2013] WASCA 235 [26] (Buss JA (as he then was); Mazza JA and Hall J agreeing); Jarvis v The Queen (1993) 20 WAR 201, 205 (Ipp J), 211 - 214 (Murray J); Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 ‑ 67.
[8] Roffey v The State of Western Australia [2007] WASCA 246 [26]; Jarvis v The Queen (1993) 20 WAR 201, 117 (Anderson J - although his Honour did not regard these factors as necessarily, or at all, involving the application of the totality principle).
[9] Clinch v The Queen (1994) 72 A Crim R 301, 306 (Malcolm CJ); Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J), 213 (Murray J); R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159, 164 [16].
[10] That was the case, for instance, in Mill v The Queen, where offences had been committed in different jurisdictions and there was no ability to order concurrency with a sentence in another jurisdiction.
As with other sentencing considerations, the application of the totality principle involves a balancing of factors. It has been said that a sentencing court must take care when applying the totality principle to avoid any impression that the commission of further offences will not result in any additional punishment, or that there will be a 'discount for bulk offending', as such impressions may erode public confidence in the administration of justice.[11] The totality principle is not a means by which an offender can escape condign punishment for a series of offences of the same nature committed over a period of time.[12]

The magistrate had regard to totality

[11] R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159, 164 - 165 [18]; Nancarrow v The State of Western Australia [2006] WASCA 238 [72].

[12] Bransby v The Queen [2010] WASCA 165 [38].

It is apparent from the magistrate's sentencing remarks, to which I have referred above, that his Honour did have regard to the totality principle, including what was a proper measure of punishment for the combined criminality of the District Court offences and those he was dealing with. Apart from his express reference to it, the application of the principle is clearly reflected in the fact that the sentences of imprisonment for seven of the offences his Honour was dealing with were ordered to be served concurrently with the sentences for the aggravated reckless driving and the home burglary committed on 21 August 2014. However, the question remains whether his Honour erred in the application of the principle by ordering that those two sentences be served cumulatively upon each other and upon the sentence the appellant was already serving.

The appellant's submission

There was some ambiguity in the appellant's submissions about the error imputed to the magistrate under this ground. On the one hand, his written submissions appeared to confine the error to the magistrate's cumulation of the sentence for the home burglary offence upon the sentence imposed in the District Court for the aggravated home burglary offence, because, it was submitted, those offences were committed close in time and should have attracted concurrent sentences.[13] On the other hand, in oral submissions his counsel argued that the error was in the magistrate ordering that the sentences for the aggravated reckless driving and home burglary be served wholly cumulatively upon each other and upon the term being served.[14] It was submitted that, had those offences been dealt with at the same time as the aggravated burglary offence in the District Court, 'there would have been a great deal of concurrency with regard to that 18‑month term and the 6‑month term that [the magistrate] imposed both cumulatively.'[15] The crux of the submission was that 'looking at the offences as a whole, taking into account [the appellant's] age, his antecedents [and] pleas of guilty … a total sentence in effect of four years was too long.'[16]
[13] Appellant's written submissions [70] and [90]. The latter specifically referred to the timing of the burglary offences in comparing the circumstances of this case with those in Saraceno v The State of Western Australia [2015] WASCA 100 in terms of the way in which offences that are separated in time might still be regarded as part of a course of conduct for the purposes of totality.
[14] Appeal ts 7.
[15] Appeal ts 5.
[16] Appeal ts 5.
I will consider the appellant's case on the basis of the broader submission, but the more confined reliance in the written submissions on the temporal relationship between the burglary offences highlights the very separate nature of the offences committed by the appellant in May 2015 when considering the question of whether sentences were properly ordered to be served cumulatively and totality.

The 'single sentencing exercise' approach

It has long been established that the application of the totality principle requires the court to regard the offending with which it is dealing in the context of a broader course of offending, including offences for which the offender is already serving a term of imprisonment, whether or not the offending is related. The proper approach was described by Murray J in Jarvis v The Queen as follows:[17]
Not only is the principle to be applied when the court is required to sentence for a number of offences on one occasion, but it is to be applied when a court is, or two courts are, required to sentence for a number of offences on different occasions. It is clear that it is again the same question which must be asked. What is the appropriate sentence for the totality of the criminal behaviour? And it does not matter that the totality of the criminal behaviour is comprised of quite unrelated offences which can in no sensible way be described as a series of offences committed in the course of a particular crime spree.
[17] Jarvis v The Queen (1993) 20 WAR 201, 211 - 212.
His Honour also made it clear, adopting what was said in R v Larsen[18] that the approach applies when an offender comes to be sentenced for an offence at a time when he is already serving another sentence. The overarching principle is that the totality of the sentence imposed on the offender must bear a proper relationship to the overall criminality involved in the various offences being dealt with and for which he has already been dealt with 'whether or not there was any link between the commission of individual offences beyond the identity of the offender and the fact that he must at the one time serve the sentences.'[19]
[18] R v Larsen (1989) 44 A Crim R 121.
[19] Jarvis v The Queen (1993) 20 WAR 201, 212 (Murray J).
The appellant relied on the High Court's decision in Mill v The Queen[20] and the decision of the Court of Appeal in Nolan v The State of Western Australia[21] to support the proposition that the proper approach to be taken in a case like this is to ask what would have been the total effective sentence imposed if the appellant had been sentenced for the District Court and Magistrates Court offences at the one time. The approach as it was applied in Mill and in Nolan tends to fix on the time of the earlier sentencing as the notional single occasion of sentencing.
[20] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.
[21] Nolan v The State of Western Australia [2013] WASCA 235.
In Mill, it was in fact described as a 'notional exercise'. In that case, the offender had committed three offences of armed robbery within a period of six weeks, two in Victoria and one in Queensland. He was arrested and dealt with first in respect of the offences in Victoria. He was sentenced to a total effective sentence of 10 years, with a non‑parole period of 8 years.[22] After he was released on parole in Victoria, he was arrested and dealt with for the offence in Queensland. He was sentenced to 8 years' imprisonment. The appeal against that sentence alleged a breach of the totality principle, having regard to the sentence Mill had already served in Victoria. The High Court noted that the application of the totality principle becomes more complicated where an offender commits a number of offences within a short space of time in more than one State, because upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State.[23] Mill had served some 8 years of the total sentence imposed in Victoria.
[22] Mill was sentenced to 8 years' imprisonment in respect of each of the offences in Victoria. Six years of the second sentence were to be served concurrently with the first sentence.
[23] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 - 64 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
In allowing Mill's appeal, the High Court said:[24]
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years.
[24] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 - 67.
The 'notional exercise' undertaken by the court in Mill was obviously an appropriate approach in a case in which the offender had committed three similar offences within a relatively short period of six weeks. Even so, the court had regard to the offender's rehabilitation during the service of the earlier sentence as a relevant consideration in applying the totality principle. The same approach had been taken in R v Todd,[25] which was a case relied on by the court in Mill.
[25] R v Todd [1982] 2 NSWLR 517.
The Court of Appeal in Nolan also adopted the single sentencing exercise approach, following Mill. In that case, the offender was sentenced to a total effective sentence of 4 years' imprisonment in the District Court for one count of aggravated burglary and three counts of burglary, which were committed from May 2011 to October 2011. Eight days later, he was also sentenced to a total effective sentence of 2 years' imprisonment in the Magistrates Court for 19 offences which included two counts of aggravated burglary and 13 counts of burglary. Those offences had been committed from December 2003 to September 2011, although the majority occurred in 2009 and 2011. The sentence in the Magistrates Court was ordered to be served cumulatively on the sentence imposed in the District Court. Nolan appealed against the total effective sentences imposed in both the District Court and the Magistrates Court, alleging a breach of the totality principle. The appeal was allowed. In the course of reasons with which Mazza JA and Hall J agreed, Buss JA (as he then was) said that the proper approach was to consider whether the aggregate sentence of 6 years' imprisonment infringed the first limb of the totality principle, and that totality should not be considered separately by reference to each sentencing decision under appeal.[26]
[26] Nolan v The State of Western Australia [2013] WASCA 235 [24].
The approach taken in Nolan was in the context of sentences that were imposed within a matter of days of each other, both of which were appealed. That is not the case here.
In my opinion, the general principle that emerges from Mill, which has been followed since, including in Jarvis and Nolan, is as was explained by Murray J in Jarvis, as outlined above, and by Buss JA in Nolan.[27] It does not require that in every case in which an offender is being sentenced while serving a sentence for other offences, the court must undertake a notional exercise as to what would have been imposed on the earlier occasion for the offences currently under consideration if all offences had been dealt with at the one time.
[27] See Nolan v The State of Western Australia [2013] WASCA 235 [26].
As counsel for the appellant acknowledged during argument, the 'single sentencing exercise' approach can become complicated and somewhat artificial when there were factors relevant to the earlier sentencing (such as early pleas of guilty) that are not relevant to the later sentencing. The same may be said of factors that were not taken into account in the earlier sentencing, but which are likely to have affected the sentence imposed if all offending had been dealt with at the one time. For instance, the offending in the earlier proceedings may have been regarded to be more serious when viewed in the light of offences for which the offender comes to be sentenced later, and findings favourable to the offender may not have been made in those earlier proceedings.[28] On the other hand, there may be matters favourable to the offender at the time of the later sentencing, such as rehabilitation (as in Mill and Todd) that should be taken into account and which would render the 'single sentencing exercise' approach artificial.
[28] See, for example, Saraceno v The State of Western Australia [2015] WASCA 100 [57] (Hall J).
In my opinion, it is consistent with the approach described by Murray J in Jarvis for a court that is sentencing an offender who is already serving a sentence for other offences to have regard to the circumstances as they pertain at the time it is sentencing, when assessing the relationship that the aggregate sentence bears to the total criminality involved in the multiplicity of offences. The fact that the sentencing materials before the court include information that may not have been available or relied upon at the time of the earlier sentencing, or that the offender's circumstances have changed since the earlier sentencing, may be relevant considerations in making that assessment.
On appeal, the question is whether the aggregate of the sentences is a proper reflection of the criminality of all of the offending.

Other cases distinguished

The appellant placed significant reliance on Nolan, not just for the principle that was applied, but as providing guidance in respect of circumstances in which the cumulation of a sentence in the Magistrates Court upon a sentence imposed earlier in the District Court may be regarded as breaching the first limb of the totality principle. However, in that regard, Nolan can be readily distinguished. Apart from the difficulty that arises in any such comparison because of the differences in the circumstances of offending and the offenders' personal circumstances, in Nolan, the decisive factor identified by Buss JA for forming the opinion that the aggregate sentence of 6 years breached the first limb of the totality principle was '[t]he nature and extent of the appellant's voluntary disclosure of offences, most of which would not otherwise have been solved'.[29] The aggregate sentence did not bear a proper relationship to the total criminality because of that very particular aspect of Nolan's personal circumstances, which was relevant to assessing the total criminality. Mazza JA (who agreed with the reasons given by Buss JA) added comments which also emphasised that, but for the appellant's voluntary disclosure in that case, the total effective sentence of 6 years would not have warranted appellate intervention.[30] Nolan had also pleaded guilty at the first reasonable opportunity. There were very significant mitigating factors that are not present in this case.
[29] Nolan v The State of Western Australia [2013] WASCA 235 [39].
[30] Nolan v The State of Western Australia [2013] WASCA 235 [57].

The appellant also referred to Saraceno v The State of Western Australia,[31] submitting that the reasoning in that case applied, but the outcome was distinguishable. That case involved sentencing in the District Court for two offences of indecently recording children under the age of 13 years. The appellant received 10 months' imprisonment for each offence, to be served cumulatively. By the time the appellant came to be sentenced in the District Court, he had already served a sentence for related offending in Victoria and had taken steps towards his rehabilitation in respect of that other offending. The essential issue in the case was whether, having regard to those factors, the sentence imposed in the District Court breached the totality principle. The majority of the Court of Appeal concluded that it did not. As Saraceno involved offending in different jurisdictions, the court understandably adopted the approach in Mill. It is sufficient to say that the facts of Saraceno were very different to those of this case, and neither the approach nor the outcome in that case assists the appellant's case.

Consideration of the appellant's argument

[31] Saraceno v The State of Western Australia [2015] WASCA 100.

The appellant's argument was premised on the following proposition:[32]
Mr O'Byrne was sentenced in the Magistrates' Court to a total effective sentence of 2 years' immediate imprisonment and in the District Court to 2 years' imprisonment for a series of offending that occurred around the same time. By the order for the Magistrates' Court sentence to be served cumulatively with the District Court sentence, this made a total aggregate sentence of 4 years' immediate imprisonment.
[32] Appellant's written submissions [79].
The proposition conflates a number of different episodes of offending.
First, the total effective sentence of 2 years' imprisonment in the District Court consisted of 18 months for the aggravated burglary committed in September 2014 and 6 months for an offence for which the appellant had been on a suspended imprisonment order imposed in June 2014. In my view the two offences could not properly be regarded as a 'series of offending that occurred around the same time'.
Secondly, the appellant's proposition conflates the home burglary and other offences committed in or around August 2014 with the offences committed in April and May 2015, including two offences of stealing a motor vehicle and the aggravated reckless driving. The total offending consisted of at least two episodes, separated by some 7 months. In my view, it could not properly be said that all of the offences were part of a 'series of offending that occurred around the same time'. In particular, apart from the separation in time, the driving offence was of a very different kind to the burglary offences.
Of course, as I have already indicated, totality must be considered even when there are separate episodes of unrelated offending, including different kinds of offences. However, it seems to me that the appellant's argument recognises that the question of whether offences are part of a series or of the same kind is relevant in considering the first limb of the totality principle. That was certainly the case in Mill, Todd (where the offences were described as being 'closely related in time and character'[33]) and Nolan. Where there is unrelated offending of a kind that calls for separate condign punishment to mark the community's condemnation of such conduct, that will be relevant to determining what is a proper measure for the totality of the offending.
[33] R v Todd [1982] 2 NSWLR 517, 519.
In the present case, it could be said that the home burglary offence committed on 21 August 2014 was closely related in time and character to the aggravated burglary offence dealt with in the District Court, but not all of the Magistrates Court offences fell into that category. As I have said, the aggravated reckless driving offence was of a very different kind. It involved public safety considerations that called for a separate element of both general and personal deterrence.

Assessment of the totality of the appellant's offending

In applying the totality principle in this case, it is necessary to have regard to all of the offending for which the appellant was sentenced in the District Court and Magistrates Court. It was very serious offending, including two burglaries on residential premises, four offences of stealing motor vehicles and the independently serious conduct involved in the aggravated reckless driving offending on 12 May 2015. The burglaries and motor vehicle offences involved substantial amounts of property.
The home burglary committed on 21 August 2014 involved the theft of jewellery to the value of $3,000, including engagement and wedding rings, which one would expect were of greater value to the victim or victims than their monetary value. Even if the appellant had been sentenced for that offence at the same time as he was sentenced for the aggravated home burglary offence in the District Court, the offence was sufficiently serious to warrant some cumulation upon the sentence for the aggravated home burglary. As I noted earlier, the appellant's counsel acknowledged that the sentence for the home burglary offence in the Magistrates Court was lenient.
Most significantly, the appellant committed 11 of the 14 offences dealt with in the Magistrates Court while he was subject to a suspended imprisonment order made on 4 June 2014 in the Perth Magistrates Court. As the respondent properly submitted, the appellant showed a total disregard for a court-imposed sanction. Although he was required to serve part of that suspended sentence as a result of the breach, the fact that his offending was in disregard of the order was a significant aggravating factor.[34] The offences in August 2014 and May 2015 were also committed while the appellant was on bail for other offences. Those in May 2015 were committed while he was on bail for the aggravated home burglary for which he subsequently was sentenced in the District Court. The fact that he offended while on bail was also a significant aggravating factor, again revealing a blatant disregard for the law and underscoring the need for personal deterrence.[35] Where immediate imprisonment is the only appropriate sentencing option, the need for personal deterrence ordinarily results in a longer term.[36]
[34] Mippy v The State of Western Australia [2012] WASCA 254 [27] (Mazza JA; McLure P & Buss JA agreeing).
[35] Moreton v The State of Western Australia [2011] WASCA 258 [47(d)].
[36] Samson v The State of Western Australia [2011] WASCA 173 [12] (McLure P, Newnes JA agreeing).
For obvious reasons, home burglaries are regarded as serious offences that generally require the imposition of substantial penalties aimed at giving priority to considerations of personal and general deterrence,[37] and to reflect the prevalence of the offence.[38]
[37] Drake v The State of Western Australia [2006] WASCA 209 [60].
[38] Butler v The State of Western Australia [2012] WASCA 249 [40].
As I have already noted, the appellant does not take issue with the individual sentences, and in respect of the home burglary offence committed on 21 August 2014 his counsel has conceded it was a lenient sentence. Offences of burglary (and aggravated burglary) on residential premises can attract a range of sentences between 12 months[39] and at least 4 years[40] for a single offence.
[39] See, for example, Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 and AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34.
[40] Anderson v The State of Western Australia [2014] WASCA 167.
In respect of the offence of aggravated reckless driving, there is no tariff.[41] As the respondent submitted, an appreciation of the seriousness of the offence can be discerned from what was said by the Court of Criminal Appeal in Bropho v The Queen[42] and Hume v The Queen[43] about the offence of stealing a motor vehicle aggravated by reckless driving, namely that it involves 'a calculated disregard for the lives, safety and property of others, the authority of the police and the public concern as to the prevalence and demonstrated dangers of so driving'.[44] Again, as I noted earlier, the appellant accepts that the individual sentence imposed for this offence by the magistrate was within the sound exercise of discretion. However, the respondent has referred to Tela v The State of Western Australia[45] as an example of where the issue of totality had to be taken into account in sentencing for an offence of aggravated reckless driving involving a police chase.
[41] Douglas v Ferguson [2012] WASC 207 [23] (Hall J).
[42] Bropho v The Queen (Unreported, WASCA, Library No 940197, 14 April 1994) (Frankly J).
[43] Hume v The Queen [2000] WASCA 306; (2000) MVR 203 [14] (Wheeler J; Pidgeon & Ipp JJ agreeing).
[44] Bropho v The Queen (Unreported, WASCA, Library No 940197, 14 April 1994), in relation to the offence of stealing a motor vehicle aggravated by reckless driving.
[45] Tela v The State of Western Australia [No 2] [2014] WASCA 103.
The offender in Tela, who was four years younger than the appellant, was sentenced to 12 months' imprisonment for an offence that was committed in circumstances that were less serious than those in this case, and the sentence was ordered to be served cumulatively upon a sentence of 1 year and 6 months' imprisonment for a home burglary offence and a sentence of 3 months' imprisonment for an offence of assault occasioning bodily harm. He was also sentenced for another aggravated home burglary, a burglary and driving offences connected with the aggravated reckless driving, but the sentences for those offences were ordered to be served concurrently. The total effective sentence was 2 years and 9 months. Leave to appeal against the sentences was refused. Tela's personal circumstances were more favourable than the appellant's, and he had pleaded guilty at the first reasonable opportunity, unlike the appellant. While comparisons are difficult, the outcome in that case militates against the argument that the aggregate sentence in this case was disproportionate to the totality of the appellant's offending.

Appellant's personal circumstances

There were few mitigating factors in the present case. While the appellant was relatively young at 23 years of age at the time of sentencing, he was not so young that youth remained a significant mitigating factor. He pleaded guilty at a late stage, so any reduction for the plea would be significantly less than it would have been had he pleaded at an earlier stage. He did not have favourable antecedents, and, although it was said on his behalf that he had done some courses in prison, there was no evidence before the magistrate of any positive efforts at rehabilitation.[46] There was information before the court that he had the ability to gain employment, and employment would be available to him. It was also said that he had dependent children. However, such mitigating factors were of limited weight, having regard to the seriousness of his offending.

Conclusion as to Ground 1

[46] This may be contrasted with the circumstances in Mill v The Queen and R v Todd in which a relevant consideration was the progress of the offender's rehabilitation during the term of his earlier sentence (being a non-parole period of 8 years in Mill's case and 3 years in Todd's case).

In my opinion, for the reasons I have given above, and applying the general considerations relevant to cumulation and concurrency (the so‑called 'one transaction rule'),[47] it was appropriate that the sentences for the aggravated home burglary for which the appellant was sentenced in the District Court, the home burglary for which he was sentenced in the Magistrates Court and the aggravated reckless driving be served cumulatively upon the part of the term the appellant was required to serve of his suspended sentence. It was necessary, to achieve both personal deterrence and general deterrence, that the breach of that order be marked by a separate sentence.
[47] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Bransby v The Queen [2010] WASCA 165 [7] - [8] (McLure P); [33] (Mazza JA).
Secondly, I am of the view, for similar reasons, that, if the appellant had been sentenced for the home burglary of 21 August 2014 at the same time he was sentenced for the aggravated home burglary in the District Court, it would have been appropriate to order that the sentence for the home burglary of 21 August 2014 (of 6 months) be served cumulatively upon the sentence for the aggravated home burglary. In reality, I would have expected in that notional exercise that the sentence for the home burglary would have been closer to that of the aggravated home burglary and that it would have been ordered to be served partially cumulatively upon the sentence for the District Court offence.
Thirdly, for the reasons I have given above concerning the separate nature of the offending and the need for a sentence to separately mark the community's condemnation and the need for general and personal deterrence (especially as the offender had a prior conviction for reckless driving), it was appropriate to order that the sentence for the aggravated reckless driving be served cumulatively upon the sentences for the aggravated home burglary in the District Court and the home burglary dealt with in the Magistrates Court.
In taking a step back to consider the overall effect of structuring the sentences in that way, and whether the total effective sentence properly reflects the totality of the appellant's offending, one cannot lose sight of the fact that the appellant was sentenced for a large number of other offences, including serious offences of stealing motor vehicles, and that for those offences he received concurrent sentences. In my opinion, the need to arrive at a just and appropriate aggregate sentence was adequately reflected in the magistrate ordering that the majority of the terms imposed be served concurrently, notwithstanding the fact that each of the offences of stealing a motor vehicle, for instance, was committed on a separate and distinct occasion, and by imposing a relatively lenient sentence of 6 months' imprisonment for the burglary offences, including the home burglary of 21 August 2014.
Having regard to the objective seriousness of the offending and the standards of sentencing customarily imposed for similar offending, I am not persuaded that the total effective sentence of 4 years' imprisonment for all of the offending, including the breach of the suspended imprisonment order, was disproportionate to the totality of the appellant's offending. In fact, I consider the aggregate sentence to be commensurate with the appellant's criminality.
I do not consider that the ground had a real prospect of success. Accordingly leave is refused on this ground.

Ground 2 ‑ Failure to take into account plea of guilty and antecedents

This ground alleges error on two bases. First, that the magistrate failed to have regard to the appellant's pleas of guilty as a mitigating factor; in particular, that he failed to reduce the sentence at all pursuant to s 9AA of the Sentencing Act to reflect the benefits of the pleas to the State, victims and witnesses. The submission is that this is evident from the magistrate's failure to make any mention of s 9AA or a discount for the pleas of guilty.
Secondly, the ground alleges that the magistrate failed to have regard to mitigating factors in the appellant's antecedents, contrary to s 6(2)(d) of the Sentencing Act. The effect of that provision is that mitigating factors are among the matters to be taken into account by the court in determining the seriousness of the offence, which it must do because, by virtue of s 6(1), a sentence must be commensurate with the seriousness of the offence. Subsection (3)(a) provides that subsection (1) does not prevent the reduction of a sentence because of mitigating factors, which are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.[48] Section 8(4) provides that, if because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state the fact in open court.

Section 9AA

[48] Sentencing Act 1995 (WA) s 8.

Section 9AA of the Sentencing Act provides, relevantly:
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
…
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
'Head sentence' is defined by s 9AA(1) to mean:
… the sentence that a court would have imposed for the offence if ‑
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors.
By its express terms, s 9AA is concerned with the reduction of the head sentence for a particular offence. It does not provide a mechanism for the reduction of a total effective sentence for a number of offences. The operation of the provision was explained by Martin CJ in LJH v The State of Western Australia as follows:[49]
Section 9AA has no direct application to a total effective sentence arising from the effect of orders made for the cumulative and concurrent service of sentences imposed for different offences. By its express terms, the section is limited to the imposition of a sentence of a finite term for a particular offence.
However, s 9AA will have an indirect effect upon the ascertainment of the total effective sentence properly imposed in two ways. First, in cases in which the total effective sentence arises from the cumulative service of sentences imposed for different offences, a reduction in those sentences because of a plea of guilty will reduce the total effective sentence to be served by the same amounts. Second, when the totality principle is being applied to determine an appropriate total effective sentence, in cases in which a total effective sentence resulting from sentences imposed after trial is thought to be comparable, the extent of the discount given for the pleas of guilty will be one of the factors properly taken into account when assessing the comparability of the cases. So, when considering ground 2 of this appeal, in order to assess the comparability of a total effective sentence arising from sentences imposed following convictions after trial, it is necessary to discount the sentence imposed in the other comparable case by 20%, before adjusting for other differences between the cases.
[49] LJH v The State of Western Australia [2016] WASCA 155 [78], [79].
As I indicated from the outset, the appellant's overarching contention on this appeal has been that the aggregate sentence that results from the cumulation of the total effective sentence imposed by the magistrate upon the total effective sentence imposed in the District Court is disproportionate to the totality of his offending. The appellant conceded that the individual sentences imposed by the magistrate were comfortably within range (and indeed lenient in respect of the home burglary offence). As I indicated earlier, I have understood that concession to have regard to all of the circumstances, including the circumstances of the offending and any mitigating factors.
Therefore, it seems to me that neither of the ways in which s 9AA could have an indirect effect on the total effective sentence, as indicated by the Chief Justice in LJH, would apply in this case. Any contention for a reduction of the finite sentences for particular offences that might be implied in the appellant's argument would be on the basis of the application of the totality principle, not on the basis of the application of s 9AA. The appellant's principal contention was that the totality principle should have been accommodated by allowing a greater degree of concurrency, rather than by reduction of individual sentences.

In these circumstances, it is difficult to see how any error made by the magistrate by failing to state what discount, if any, he gave under s 9AA could be said to have been a material error, in the sense that it was material to the sentencing process.[50] The error would be material if a reduction should have been made under s 9AA, but was not made. If each sentence imposed for a particular offence is comfortably within range, taking into account all relevant circumstances, it might be thought that there is no scope for arguing that the plea of guilty has not been adequately accounted for. However, if I am satisfied that the magistrate's failure amounted to a material error, the appeal may still be dismissed if I consider that no substantial miscarriage of justice has occurred.[51] It would be for the respondent to persuade me there has been no substantial miscarriage of justice.
[50] Roberts v The State of Western Australia [2014] WASCA 239 [47]; Burrows v The State of Western Australia [2014] WASCA 147 [32] (Hall J).
[51] Criminal Appeals Act 2004 (WA) s 14(2).
The magistrate was aware of the pleas of guilty.[52] However, he did not say anything further about the significance of the pleas of guilty. If he did reduce the sentences under s 9AA, he did not specify the extent of any reduction, as required by s 9AA(5).
[52] ts 7.
The respondent concedes that this was an error of law.[53] However, it submitted that it was not a material error that would vitiate the exercise of the sentencing discretion and enliven this court's jurisdiction to intervene on appeal.[54]
[53] Forkin v The State of Western Australia [2013] WASCA 51.
[54] Roberts v The State of Western Australia [2014] WASCA 239 [47] citing Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601; Burrows v The State of Western Australia [2014] WASCA 147 [32] (Hall J).
The respondent relied on Burrows v The State of Western Australia for the proposition that, in and of itself, the failure to comply with s 9AA(5) does not amount to a material error that requires appellate intervention, because the failure to quantify the discount does not mean that a discount was not given.[55] While the proposition is correct, I note that in Burrows, although the magistrate did not specify what discount he was giving, he did refer to s 9AA and did say he would be allowing 'a fairly small discount'.[56] The magistrate in the present case did neither of those things. That failure may provide a basis for inferring that the magistrate did not give a discount.
[55] Burrows v The State of Western Australia [2014] WASCA 147 [32] (Hall J).
[56] Burrows v The State of Western Australia [2014] WASCA 147 [31] (Hall J).
While one must be mindful of the volume of work of a court of summary jurisdiction, and the desirability of dealing with matters expeditiously in that jurisdiction, magistrates must nevertheless have regard to the provisions of the Sentencing Act requiring particular matters relevant to sentencing to be stated. It is an aspect of open justice. It informs the offender of the reasons for a sentence that affects his liberty, and is of importance to a party's ability to exercise any right of appeal. In this case, the appellant submitted that he should have been afforded a discount for his plea of guilty to reflect the benefits to the State, yet it is not possible to ascertain whether the magistrate made any reduction pursuant to s 9AA, let alone how much.
However, the appellant accepted in argument that the question ultimately is whether a different sentence should have been imposed.[57] If I am satisfied that the sentence was appropriate, taking into account any reduction that would have been proper under s 9AA, then there has been no substantial miscarriage of justice.[58]
[57] Burrows v The State of Western Australia [2014] WASCA 147 [32] (Hall J), referring to Pelemis v The State of Western Australia [2009] WASCA 151.
[58] Criminal Appeals Act 2004 (WA) s 14(2).
In my opinion, while the appellant was entitled to some reduction for the plea of guilty, it was not a significant reduction. His pleas of guilty to the offences before the magistrate were entered on his fourteenth appearance in relation to most of the charges. On no sensible basis could it be said that they were entered at the first reasonable opportunity (which would be necessary to attract the maximum reduction of 25% under s 9AA(4)). Counsel for the appellant at first instance informed the magistrate that it had been the appellant's intention to have the summary offences 'sentenced' before the District Court offence, and that he had been seeking to do that since October 2015. The magistrate was told that the delay was due to the need for the investigating officer to consider a submission to downgrade the home burglary charge so it could be dealt with summarily, and to obtain authority to do so. However, that did not explain why the appellant did not plead guilty at the first reasonable opportunity to the other offences, in particular the aggravated reckless driving offence, especially as he had been apprehended immediately after that offence.
Further, I accept the respondent's submission that the prosecution case in relation to many of the charges was very strong, featuring the presence of DNA identifying the appellant at crime scenes and the immediate apprehension of the appellant after a number of the offences. The strength of the State case can be taken into account in assessing the quantum of any reduction to be given pursuant to s 9AA under the rubric of 'the benefits to the State' in s 9AA(2).[59] While there were nevertheless savings to the State and witnesses in avoiding trials, it would appear that substantial work had already been done in the various investigations. I would have considered a reduction of about 10% of the head sentence, as defined in s 9AA, to have been appropriate, which is not to say that a lower or higher figure would not have been within the sound exercise of the sentencing discretion. The maximum penalty for the aggravated reckless driving offence was 5 years' imprisonment, and the jurisdictional limit on summary conviction was 2 years' imprisonment.[60] In my opinion, the sentence that it would have been proper to impose if there had not been a plea of guilty to that offence and before taking into account mitigating factors would have been such that the sentence of 18 months' imprisonment imposed by the magistrate was entirely appropriate after a reduction of 10% under s 9AA as I have suggested and taking into account the limited other mitigating factors. The same can be said, with greater force, in my opinion, about the sentence for the home burglary.[61]
[59] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [57] ‑ [59] (McLure P, Mazza JA agreeing); Kirby v The State of Western Australia [2016] WASCA 199 [26].
[60] Road Traffic Act 1974 (WA) s 61(4).
[61] For which the penalties under the Criminal Code s 401(1)(b) are a maximum of 18 years' imprisonment, with a jurisdictional limit of 3 years on summary conviction.
Consequently, while the magistrate erred in law, I am satisfied that there has not been a substantial miscarriage of justice, as I do not consider that a different sentence should have been imposed for each of the offences with which he was dealing.

Whether magistrate took into account other mitigating factors

Unlike s 9AA(5), s 8(4) is not confined in its terms to the sentence for a particular offence. It is open to construe the provision as requiring the magistrate to state whether, because of mitigating factors, he has reduced the total effective sentence that he would otherwise have imposed. Mitigating factors may be relevant to the decision whether sentences being imposed are to be served cumulatively upon or concurrently with each other or any existing sentence.
The magistrate did not state that he had reduced either any individual sentence or the total effective sentence (through concurrency, for instance) because of mitigating factors. However, whether the error was material, will again depend on whether it could be said to have affected the sentencing process. As with the argument concerning s 9AA, the appellant acknowledges that if I conclude that the total effective sentence that was imposed was appropriate and the aggregation of that sentence with the sentences imposed in the District Court was a proper reflection of the totality of the appellant's offending, then it would be open to me to dismiss the appeal on this aspect of ground 2 on the basis that no substantial miscarriage of justice has occurred.
The magistrate had ordered a pre-sentence report and had read it.[62] He said he was aware of the appellant's background and that it was consistent with what counsel had told him.[63] In those circumstances, it could not be said that his Honour did not take into account matters personal to the appellant. His counsel had outlined the matters that he submitted provided some mitigation. As I have already indicated, they provided limited mitigation.
[62] ts 7.
[63] ts 7.
The magistrate's error was in not stating in open court that he was reducing the sentence because of mitigating factors.[64] The appellant submits that it is not clear, therefore, whether the magistrate in fact reduced the sentence because of any mitigating factors.
[64] Sentencing Act 1995 (WA) s 8(4).
The appellant submits that there were at least three matters that should have been taken into account in mitigation, namely, his youth, the fact that he has dependents, and the fact that he had completed courses in prison, about which there was information before the magistrate and which, it was submitted, demonstrated his willingness to rehabilitate. However, as I said earlier, he was not so young that youth was a significant mitigating factor. As for the children, there was no evidence before the magistrate that the children would not be cared for properly during any period of the appellant's incarceration. The seriousness of his offending was not consistent with the responsible care of dependent children.
There were a number of factors that weighed against giving any significant weight to mitigating factors:
1.First, the nature and seriousness of the offending required that greater significance be given to both general and personal deterrence.
2.Secondly, the appellant had a criminal record, including for a previous offence of reckless driving.
3.Thirdly, he had been given previous opportunities to rehabilitate and yet had continued to offend in a very serious way. There was no evidence before the magistrate that any courses he had completed had resulted in significant steps towards rehabilitation.
4.Fourthly, the offending for which he was being sentenced by the magistrate was significantly aggravated by the fact that he had breached a suspended imprisonment order and bail. There was also a breach of bail when the appellant was not present during a curfew check by the police. He submits that there was information before the magistrate to explain the breach, namely that he was trying to earn as much money as possible to support his family before going back to prison. It was suggested that the breach flowed from 'good intentions', and that the appellant did not flee the State. With respect, that submission does the appellant no credit. There could be no mitigation of his offending simply because he complied with the bail condition requiring him to attend court, and it was not for him to use discretion as to whether he should prioritise other personal obligations or desires over his legal obligations arising from the other bail conditions.
In my opinion, the magistrate's failure to state that he was reducing any of the sentences or the total effective sentence because of mitigating factors did not amount to a material error. Even if it did, for the same reasons that I have given in respect of the aspect of this ground concerning s 9AA, I am satisfied that no substantial miscarriage of justice has occurred.

Conclusion on Ground 2

Both aspects of this ground were reasonably arguable. Accordingly, I would grant leave to appeal. However, for the reasons I have given, the appeal must be dismissed on this ground.

Ground 3 ‑ Sentencing of the appellant in his absence

Section 14(1) of the Sentencing Act provides that a court 'is not to sentence an offender unless the offender is personally present in court or appears before the court by video link under s 14A.'
The respondent concedes that the magistrate's decision to sentence the appellant in his absence comprised an express material error in the sentencing process. Therefore, the respondent concedes this ground. However, the respondent submits that there has been no substantial miscarriage of justice because no different sentence ought to have been imposed.[65]
[65] Criminal Appeals Act 2004 (WA) s 14(2)(b).
The appellant does not contend that the magistrate would have imposed any different sentence if the appellant had appeared in person or by video link.
The statutory requirement that an offender be present for sentencing, particularly when a custodial sentence is imposed, is again an aspect of the need for open justice and for an offender to be able to understand the sentence imposed on him. However, this is not a case in which the court proceeded with disregard for the appellant's rights. The appellant was to appear by video link, but there was a fault which prevented the link from being made. The appellant's counsel at first instance acquiesced in the hearing proceeding in the absence of the appellant. There is no suggestion that this was done contrary to the appellant's instructions. Although the error was material to the sentencing process, it is not a case in which there is an obvious need for appellate intervention. Having regard to the manner in which the proceedings unfolded before the magistrate, it is not surprising that this was not a ground of appeal until the respondent identified the error and consented to an amendment of the grounds of appeal to include it.
In any event, as I am satisfied that the total effective sentence that was imposed was within the exercise of a sound sentencing discretion, and indeed was entirely appropriate, it follows that I am also satisfied there has been no substantial miscarriage of justice resulting from the error identified by this ground.
Therefore, while I would grant leave to appeal on this ground, I would dismiss the appeal in so far as it relies on this ground.

Conclusion

I have concluded that leave on ground 1 should be refused, as is it has no rational or logical prospect of succeeding.
In respect of grounds 2 and 3, I would grant leave to appeal. However, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.

Annexure 1

Charge	Date of offence	Offence	Penalty imposed
MH 4375/15	12 - 13.11.12	Burglary and Commit Offence in Dwelling	6 mths' imp. Concurrent
PE 101006/14	13.08.14	Breach of Bail undertaking	$350.00 fine
FR 10031/14	21.08.14	Burglary and Commit Offence in Dwelling	6 mths' imp. Cumulative
FR 10032/14	21.08.14	Stealing	No Sentence (s 11)
PE 115334/14	23.08.14	Stealing motor vehicle	6 mths' imp. Concurrent
PE 101005/14	31.08.14 - 01.09.14	Stealing motor vehicle (associated with the Aggravated Burglary for which the appellant was sentenced in the District Court)	6 mths' imp. Concurrent
PE 27067/15	11 - 12.04.15	Stealing motor vehicle	6 mths' imp. Concurrent
PE 23484/15	12.05.15	Driver of a vehicle failed to comply with a direction to stop (circumstance of aggravation)	6 mths imp. Concurrent
PE 23485/15	12.05.15	Aggravated reckless driving to escape pursuit by police	18 mths' imp. Cumulative
PE 23486/15	12.05.15	Driving a vehicle with false plates	$250.00 fine
PE 23487/15	12.05.15	No authority to drive	6 mths' imp. Concurrent
PE 27068/15	26.05.15	Stealing motor vehicle	6 mths' imp. Concurrent
PE 59157/15	06.10.15	Breach of bail undertaking	$350.00 fine
PE 59158/15	06.10.15	Give false personal details to Police	$250.00 fine
Total effective sentence:	2 years' imprisonment, to be served cumulatively upon 2 years' imprisonment imposed by Petrusa DCJ on 25 February 2016.