Otley v The Queen - [2005] WASCA 5

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: OTLEY -v- THE QUEEN [2005] WASCA 5

CORAM: MURRAY ACJ
TEMPLEMAN J
MCKECHNIE J

HEARD: 9 SEPTEMBER 2004

DELIVERED : 19 JANUARY 2005

FILE NO/S: CCA 232 of 2002

BETWEEN: BRETT ALEXANDER JOHN OTLEY
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :H H JACKSON DCJ
File No  :IND 1539 of 2002, IND 1539A of 2002

Catchwords:

Criminal law and procedure - Sentencing - Long term of imprisonment - Young offender with bad record - Serious offences - Whether manifestly excessive - Totality principle - Medical evidence

Legislation:

Criminal Code (WA), s 317A, s 378(2)

Road Traffic Act 1974 (WA), s 60

Sentencing Act 1995 (WA), s 11(1)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr R E Cock QC & Mr S M Stocks

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

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

Herbert v The Queen (2003) 27 WAR 330
Lauritsen v The Queen (2000) 22 WAR 442
Li v The Queen [2000] WASCA 340
Lowndes v The Queen (1998) 195 CLR 665
Magee v The Queen [1980] WAR 117
McMaster (2004) 144 A Crim R 428
Mill v The Queen (1988) 166 CLR 59
Paparone (2000) 112 A Crim R 190
Quartermaine v The Queen [2000] WASCA 107
Veen v The Queen (No 2) (1988) 164 CLR 465

Case(s) also cited:

Barr v The Queen [2003] WASCA 55
Bromfield v The Queen [2002] WASCA 333
Bropho v The Queen, unreported; CCA SCt of WA; Library No 940197; 4 February 1994
Hume v The Queen [2000] WASCA 306
Jarvis v The Queen (1993) 20 WAR 20
Pearce v The Queen (1998) 192 CLR 610

MURRAY ACJ: In relation to this matter, I have had the considerable advantage of reading in draft the judgments of Templeman and McKechnie JJ. Their Honours discuss all relevant matters affecting the merits of the application for leave to appeal against sentence. I need do no more than make brief reference to those matters so that the reasons for the view to which I have come may be understood. With respect to the contrary view expressed by Templeman J, I have concluded, like McKechnie J, that leave to appeal should be refused in this case.
In the first place, I note that the application for leave was a long time coming to be heard. No doubt it only came before the Court when it did because of the pro bono assistance of the applicant's lawyer, Mr Hanbury, who advanced, I think, all that could be said in support of the application.
The chronology of the relevant offences is instructive. On 8 February 2002 the applicant was released from custody after serving a sentence for escaping legal custody. He was on parole, but by about the end of February 2002 the applicant had stolen a motor vehicle belonging to Mercy Community Services. Shortly thereafter, on 6 March 2002, he stole another expensive motor vehicle. In each case the stealing was at least by the unauthorised use of the stolen vehicle contrary to the Criminal Code (WA), s 371A. In each case the circumstance of aggravation charged was the commission of the offence of reckless driving, contrary to the Road Traffic Act 1974 (WA), s 60. By s 378(2)(a) the applicant thereby rendered himself liable to imprisonment for 8 years in each case.
During March 2002, until the applicant was arrested on 25 March, he committed a number of offences, including those to which McKechnie J has referred, of which the applicant was ultimately convicted in the District Court upon a notice issued under the Sentencing Act 1995 (WA), s 32. Included in that notice were the two offences of reckless driving which had been charged as circumstances of aggravation. As McKechnie J has mentioned, strictly speaking, having regard to the terms of the Sentencing Act, s 11(1), no sentence should have been imposed for those two offences, but it is of no moment in the context of the application for leave to appeal because the sentences imposed were concurrent terms of imprisonment entirely swallowed up by the non‑parole period applicable to the two indictable offences.
Upon the applicant's arrest, his parole was suspended and on 3 April 2002 he was sentenced to 6 months imprisonment, cumulative on the unexpired portion of his previous sentence, for a further offence of escaping legal custody and an offence of wilful damage committed on 25 March, the day upon which he was ultimately taken into custody. Meanwhile, the other matters to which I have referred were processed through the Court of Petty Sessions where on 12 September 2002 the applicant entered a plea of guilty to one of the car stealing offences, but not to the other. Ultimately the sentences imposed upon the applicant in the District Court were backdated to 12 September 2002 because it was on this date his Honour the sentencing Judge considered that the applicant commenced to serve time in custody in relation to the offences presently under consideration.
He appeared in the District Court on 22 October 2002. He pleaded guilty and I agree with Templeman J that these were significant pleas meriting a discount of substance for sentencing purposes, although not made at the earliest opportunity.
As has been seen, the sentences imposed were cumulative terms of 4 years, less 2 weeks (to allow for time in custody) and 3 years imprisonment. As has been seen, his Honour imposed a range of terms of imprisonment for the matters dealt with on the section 32 notice. Two such terms, sentences of 6 months imprisonment for offences of driving the motor vehicles while under suspension, were ordered to be served cumulatively, although concurrently with each other. That made an aggregate term of imprisonment of 7½ years, in respect of which eligibility for parole was ordered. As I have said, the sentences were backdated to 12 September 2002 and, therefore, under the statutory system which then applied the non‑parole period would be 3 years imprisonment, expiring on 12 September 2005, following which the applicant will have the capacity to be released for up to 2 years on parole. As Templeman J observes, it is clear that the applicant would have, during the non‑parole period, a significant amount of work to do to demonstrate his suitability for release on parole.
I need not discuss the seriousness of the offences. The factual circumstances surrounding their commission have been detailed by McKechnie J. Those circumstances are eloquent of the extreme seriousness of the offences. The applicant told the community corrections officer who wrote the pre‑sentence report and the psychiatrist, Dr Blumberg, that he stole the motor vehicles because, in a drunken state, he and friends, in whose company he was, decided that they were tired of walking and they would go "joy‑riding".
Then, of course, when the police came on the scene, the manner of his driving was dangerous in the extreme, putting at grave risk other road users and causing substantial damage to the motor vehicles in question. The offences were illustrative of the applicant's total lack of respect for the law and the person and property of others in the community. They merited severe punishment and cumulative sentences and, indeed, the application for leave to appeal was not grounded upon any challenge to the length of the individual terms of imprisonment imposed.
When the applicant committed these offences in March 2002, he was merely 20 years of age. By the time he came to be sentenced he had his 21st birthday, tragically while he was in prison serving a sentence. He had a criminal history, mainly for offences of dishonesty, but also including some offences against the person and other serious offences, as well as a considerable number of traffic offences. The record dated back to the beginning of 1993 when the applicant would have been a mere 11 years old. His criminal history contained very many offences. Having regard to that history, it is understandable that it was only with extreme reluctance that the sentencing Judge ordered eligibility for parole.
Before the sentencing Judge the applicant was shown to have had a dreadful childhood, introducing him to the use of illicit substances and alcohol from a very early age. At the time of these offences and when he was sentenced the applicant claimed to have ceased his use of prohibited drugs, although he admitted to problematic use of alcohol.
On the hearing of the application for leave, we provisionally admitted into evidence a psychiatric report from Dr Blumberg and a psychological report by the psychologist, Ms Zuin. Like the other members of the Court, I would receive these documents into evidence because I think they do assist to explain in greater depth the reasons for the applicant's offending behaviour than was available to the sentencing Judge in the form of the pre‑sentence report.
But it must be said that the applicant has been found not to suffer from any mental illness, although he has what is described as a severe antisocial personality disorder. This seems to be largely the product of his dreadful childhood, feelings of abandonment by his family, unstable relationships and the lack of appropriate guidance as he grew to maturity. His offending behaviour has been contributed to by chronic alcohol abuse and the use of illicit substances. There is no suggestion in the expert reports that the applicant's moral culpability for his offending behaviour is reduced to any degree, nor is there any indication that there is any medical reason why imprisonment should be regarded as a more harsh punishment than in the case of an equivalent term imposed upon another offender. However, it is to be noted that the applicant told those who reported on him that he would commit suicide if his appeal against sentence did not succeed. That is a matter for the custodial authorities. It is not a matter which can have any impact upon the judgment of this Court.
There is, however, much evidence that it is recognised by those in authority over the applicant that if he is to be given a chance not to offend again upon his release from prison, he needs help by way of counselling and training to deal with alcohol abuse, psychological issues resulting from his past and training generally to enable him to deal with life in the community without offending. The evidence does not establish the assertion in the ground of appeal that the applicant suffers any mental illness relevant for sentencing purposes.
The essential thrust of the appeal relies on the proposition that, having regard particularly to the applicant's age when he committed the offences and his pleas of guilty as the principal matters available to him in mitigation of punishment, the aggregate term imposed upon him was manifestly excessive because it infringed the proper application of the totality principle, as discussed most recently by this Court in Herbert v The Queen (2003) 27 WAR 330.
That case made it clear that the proper application of the totality principle is part of the application of the essential aim to impose a sentence which in aggregate is properly proportionate to the totality of the offending behaviour, bearing in mind that the severity of a term of imprisonment increases exponentially with its length. In my view, it is clear that the sentencing Judge gave proper consideration to the circumstances in which the offences were committed and their seriousness. His Honour gave proper consideration to the fact that they were separate offences committed on separate occasions. They merited cumulative punishment. His Honour did not, in my opinion, overlook or place less weight than was proper upon the applicant's age or the pleas of guilty. Indeed, it is clear, I think, as McKechnie J has observed, that his Honour reduced the term imposed for the second car stealing offence having regard to totality considerations.
The aggregate term was undoubtedly severe but, in my opinion, the matters available in mitigation of punishment could not withstand the need for the sentences imposed to properly reflect the extreme seriousness of the offences committed. I am quite unable to conclude that his Honour's discretion miscarried in any way. I would refuse leave to appeal.

TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by McKechnie J. I gratefully adopt his Honour's recitation of the facts, to which I need not refer, except to the extent necessary to explain my reasons.
At the hearing of this application, the Court directed that psychiatric and psychological reports relating to the applicant be obtained. There was some discussion about the use which might be made of those reports in the appellate process, as opposed to the re‑sentencing process, should the appeal be successful.
The law in relation to this question was set out by Kennedy J (with whom Wallwork and Anderson JJ agreed) in Li v The Queen [2000] WASCA 340 at [21] – [23] where his Honour referred to several authorities. In summary; the Court may receive evidence of matters or events which have occurred since sentence, if it considers that to be appropriate.
The Court will take this course if it considers the case calls for appellate intervention, even where the sentencing discretion has not miscarried. The new evidence will be relevant if it throws a different light on the circumstances existing when the appellant was sentenced.
I have read the psychiatric report dated 11 October 2004 of Dr Lawrence Blumberg, and the psychological report dated 13 September 2004 of Ms Cinzia Zuin. In my view these reports do show the applicant's offending in a different light, and should therefore be received by the Court.
The sentencing Judge had before him a Pre‑sentence report which referred to the applicant's health in only the briefest terms. It referred to a history of self‑harm, suicidal ideation and psychiatric and psychological intervention. The applicant had been admitted to Graylands Hospital for psychiatric assessment.
The Pre‑sentence report therefore created the impression that the applicant had suffered or was suffering from mental illness. This is reflected in the grounds of appeal and was one of the matters relied on in support of the contention that the Judge gave insufficient consideration to the totality principle.
Counsel for the applicant had been given leave to issue a subpoena to the Graylands Hospital to produce its file relating to the applicant. The file is in the custody of the Court. I have referred to it, in order to locate a report dated 25 March 2002, by Dr S Patchett, to which Dr Blumberg referred in his report.
Dr Patchett is the Director of the Graylands Hospital Forensic Inpatient Program. In his report he said that the applicant:
"has no treatable psychiatric disorder which would explain his offences. However, he has a significant antisocial personality disorder, poor anger management and poor impulse control with a history of alcohol abuse."
Dr Blumberg's opinion, as expressed in his report of 11 October 2004, was essentially the same as that of Dr Patchett. However, Dr Blumberg went on to say that the applicant:
"is at the stage of his life where he has the insight to know that if he does not change things and move forward then his life is likely to evolve round substances and the criminal justice system. [The applicant] acknowledges this and states that he wants to make up for his past mistakes and move forward and keep his family."
Unlike the author of the Pre‑sentence report, Dr Blumberg made a number of recommendations for ongoing intervention and treatment, should the applicant be successful in his appeal and become eligible for parole in the near future.
Ms Zuin's report provides an insight into the nature and cause of the "depressive personality structure with antisocial personality traits" exhibited by the applicant. The history given by the applicant included the departure of his father shortly after he was born, his placement in an orphanage at the age of four years when his mother re‑married, and his remaining there (and suffering abuse) and subsequently living in foster homes because his stepfather would not have him in the family home.
Given this denial of parental love and support, it is not surprising that the applicant performed poorly at school and in his adolescent years, turning to antisocial and criminal activities.
The sentencing Judge was informed about the applicant's history by his counsel and by the Pre‑sentence report. However, his Honour did not know the extent of the applicant's problems as diagnosed by Ms Zuin. In particular, Ms Zuin reported:
"Where some offenders become accustomed to incarceration and sometimes derive comfort from this [the applicant], on the other hand does not cope very well and hates being in prison. It is understood he has attempted suicide by hanging on at least two occasions, firstly in Albany Prison some two years ago and several months ago at Hakea Prison. In fact during the current interview [the applicant] stated that if his sentence is not reduced he will kill himself or try to escape as he feels his health is deteriorating and he his 'breaking down' each day. [The applicant's] threat needs to be taken seriously given previous suicidal behaviour and should his sentence stand, he may need close monitoring."
No doubt because of the paucity of specialised reports available to the Judge, his Honour said very little in his sentencing remarks about the applicant's personal circumstances:
Turning to your personal circumstances you are still only 21. It seems you are single. You have never been employed and you have virtually no education and I accept that you have for whatever reason suffered behavioural difficulties and no doubt other difficulties all your life." (AB 32)
It is well settled that ill health (including psychological problems) may be a mitigating factor.
In Li v The Queen (supra) at [19], Kennedy J said:
"The general rule regarding the effect of ill health as a mitigating circumstance was summarised by King J in Smith v R (1987) 44 SASR 587, at 589:
'Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a greatly adverse effect on the offender's health.' "
As was said by Murray J (with whom Kennedy J agreed) in Paparone (2000) 112 A Crim R 190, at [53]:
" … if the offender's condition is such that a sentence which would otherwise be proportionate to the criminality involved may have a more severe impact upon the particular offender than upon others, then the court will be led in mercy, as well as by reason of the application of the general principles of sentencing, to moderate the punishment or choose an alternative disposition."
Of course, the Court cannot be held to ransom by threats of self‑harm by a disgruntled offender. However, in my view, it would be wrong to ignore the opinion of a duly qualified professional adviser, whose role is to assist the Court in the sentencing process.
In summary, I consider that although the evidence now available demonstrates that the applicant does not suffer from mental illness, his personal circumstances ought nevertheless to have carried greater weight in the sentencing process than it seems the Judge gave them. That is not to say his Honour's discretion miscarried in this respect: as I have said, he did not have the information now available.
The significance of my conclusion is the impact it has on the principal question arising in relation to the totality principle: whether the sentence has a crushing effect on the applicant.
As a further basis for his contention that the Judge gave insufficient consideration to the totality principle, the applicant submits that his Honour overlooked his plea of guilty.

The applicant pleaded guilty on 22 October 2002. A plea in mitigation was then made by his counsel, to which counsel for the Crown responded. However, the Judge did not sentence the applicant on that day. He told the applicant that the submissions raised issues which he wanted to think about over the next few days. His Honour continued:
"I don't want you to be under any illusion. In my view, the nature of these offences and their seriousness and the circumstances that they were committed in are all such, notwithstanding your pleas of guilty and your youth but also taking into account your record, but a custodial term served immediately is inevitable and it will be a substantial one …" [emphasis supplied] (AB 28)
The applicant was sentenced on 29 October 2002. In the course of his sentencing remarks, the Judge said:
"There are, of course, some matters in your favour to be taken into account. You have pleaded guilty to these matters. There is a short period of time in custody – I'm not clear, but I'll give you the benefit of the doubt about that – that you have served in respect of these matters alone and obviously you are still young. Notwithstanding those factors, obviously an immediate substantial custodial term is inevitable." (AB 32-3)
Clearly, the applicant's plea of guilty was a matter in his favour which was required to be taken into account. It was a mitigating factor which ought to have resulted in a significant reduction in the sentence imposed on the applicant.
Subsection 8(4) of the Sentencing Act 1995 provides:
"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."
In the present case, the Judge made no such statement in relation to the applicant's plea of guilty. In my view, there are two possible explanations for that omission. Either his Honour overlooked the need to allow a discount to the applicant for his plea of guilty or his Honour overlooked the requirement of s 8(4). I do not accept the submission made on behalf of (now) the State to the effect that the Judge discharged his duty by saying that the pleas of guilty should be taken into account. To take a plea of guilty into account is not the same as reducing the sentence because the plea has been made.
For example, a late plea might be taken into account but not result in any discount in the sentence. In this case, the Judge did regard the pleas as late. His Honour said:
" … given that what I regard as the late pleas to the new matters, they weren't necessarily late from his point of view but they were late from my perspective … I think structure and totality also need to be considered and I will bear those matters in mind …" (AB 27)
It is true that the applicant did not plead guilty at the first available opportunity. He made no admissions when arrested in March 2002. He pleaded guilty on about September 2002 to one of the charges involving stealing a motor vehicle and reckless driving but then intended to plead not guilty to the second charge. Shortly after expressing that intention, the applicant changed his mind and decided to plead guilty to the second charge of stealing a motor vehicle and driving recklessly. It was that charge to which he pleaded guilty on 22 October.
Nevertheless, it was accepted by the Director of Public Prosecutions, who appeared for the State on the hearing of the application, that the pleas were valuable because they avoided a trial and thereby saved "a lot of time, trouble and expense" and avoided the need for a scientific investigation in relation to DNA samples (TS 57). Given the Judge's view about the lateness of the applicant's plea, and the fact that his Honour did not say an open court that because of the plea he had reduced the sentence which would otherwise have been imposed on the applicant, I think it more probable than not that his Honour considered it inappropriate to allow any discount.
In the end, I do not think it necessary to decide whether the Judge did or did not allow a discount for the applicant's pleas of guilty. That is because I consider the sentences imposed on the applicant were too severe in any event, having regard to the totality principle.
In reaching that conclusion, I do not overlook the prohibition against interfering with a sentence merely because I would have exercised the sentencing discretion in a manner different from that in which it was exercised by the sentencing Judge: see Lowndes v The Queen (1998) 195 CLR 665 at [15].
Counsel for the applicant did not challenge the appropriateness of the individual sentences imposed on his client. In my view, counsel was right not to do so.
Further, it must be accepted that because the two stealing and reckless driving offences were committed on separate occasions, it was appropriate to order the sentences to be served cumulatively, subject, of course, to the totality principle.
In Mill v The Queen (1988) 166 CLR 59, the High Court said, at p 62-3:
"The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing 2nd ed (1979) pp 56 - 57, as follows (omitting references):
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.'; 'When … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentence below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
Of particular relevance to the present case, in my view, is the decision of this Court in Magee v The Queen [1980] WAR 117. There, the offender had committed two acts of rape 16 days apart. He was sentenced to 7 years' imprisonment for the first offence and 8 years' imprisonment for the second offence, the sentences to be served cumulatively. Thus, the aggregate term was 15 years' imprisonment, of which the offender was required to serve a minimum period of 9 years. In the Court of Criminal Appeal, Wickham J, with whose judgment Burt CJ and Wallace J agreed, said, at p 119:
"This, in my opinion is longer than is necessary to meet the various purposes of criminal punishment - retribution, deterrence and reformation. A custodial term which is longer than is necessary is too long and is not in the public interest. In addition to the matter of public expense, one of the purposes of sentencing might be frustrated in that the offender might come out of prison worse than he went in and thus be more likely rather than less likely to be a continuing community problem. I have many times repeated in one form or another what I said on 19 March 1973 in Thomson v R (CCA No 45 of 1972, unreported) and I repeat it yet again:
'In the area of sentencing, enough to meet all the various considerations is enough. More than enough is wrong because the excess is not only purposeless but might be harmful … the problem does not involve questions of leniency or severity, or any other abstract notion, but a hard headed attempt to work out a sentence which in all its aspects is most likely in the long run to afford the greatest public benefit and protection by offering the best hope that the criminal will not offend in a similar way again and that others will be deterred from so offending.' "
That approach was adopted by Anderson J in Herbert v The Queen (2003) 27 WAR 330 at [144]:
" … the reason why a person does not get 16 years for two crimes each worth eight years is that by the time that person has served the first sentence all of the recognised sentencing objectives (protection of the public, deterrence, punishment, retribution, reformation, public denunciation, and so on) will have been achieved for the most part, leaving no purpose in requiring the person to serve another full eight years for the second crime."
There is, of course, one school of thought to the effect that the rehabilitation of the applicant is a forlorn hope, he having been in and out of detention and prison since the age of about 11 years, and the protection of the public requires that he be imprisoned for a long time. However, the need to protect the public is a factor to be taken into account under s 6(4) of the Sentencing Act 1995 when deciding whether it is appropriate to impose a sentence of imprisonment at all. Subject to s 98(4) of the Act, the need to protect the public can never be allowed to interfere with the principle of proportionality enshrined in s 6(1) of the Sentencing Act, which provides that:
"A sentence imposed on an offender must be commensurate with the seriousness of the offence."
As Malcolm CJ said in Lauritsen v The Queen (2000) 22 WAR 442 at [36]:
"It is firmly established law that the principle of proportionality in sentencing would be offended by the imposition of a sentence more severe than is warranted by the seriousness of the offence, even where imposing the disproportionate sentence is in order to achieve protection of society: see Veen v The Queen [No 1] (1979) 143 CLR 458; Veen v The Queen [No 2] (at 472), per Mason CJ, Brennan, Dawson and Toohey JJ (the majority); (at 485‑486), per Wilson J; (at 490‑491), per Deane J; (at 496), per Gaudron J; Chester v The Queen (1998) 165 CLR 611 at 618; Baumer v The Queen (1988) 166 CLR 51 at 58; Hoare v The Queen; Bugmy v The Queen (1990) 169 CLR 525. See also Professors Fox and Freiberg, in Sentencing – State and Federal Law in Victoria (2^nd ed, 1999) at pp 293-294 and the authorities and articles cited there."
Wallwork J agreed with his Honour.
Malcolm CJ said also (at [64]) that:
"For young offenders rehabilitation is an important consideration."
The applicant was 21 years old when sentenced. Whether or not this application succeeds, he will still be a young man when released from prison. It is therefore particularly important, in my view, that the sentences imposed on the applicant should not be crushing: that is, the sentences should not cause him to give up hope of rehabilitation.
However, in the light of the new material, I consider that sentences totalling 7 years' imprisonment have had that effect: and at a time when he has at last (according to Dr Blumberg) gained some insight into his offending and has a desire to overcome these difficulties.
In any event, I consider that sentences of 4 and 3 years' imprisonment respectively are at the upper end of the range of sentences customarily imposed for offences of this kind, making the accumulation of those sentences particularly onerous on this young man.
It must be accepted, as Ms Zuin observed in her report dated 13 September 2004, that because of his criminal history, the applicant must be regarded now as "presenting a high risk of re‑offence". However, I do not think that risk is likely to be diminished in the applicant's case by a crushing term of imprisonment.

All these considerations lead me to the conclusion that this Court should now intervene and reduce the sentence imposed on the applicant so as to make him eligible for parole sooner rather than later. I emphasise eligible for parole. That is because there is much the applicant could and should do, by taking advantage of programmes available to him while in prison, to demonstrate to the Parole Board that he would be an appropriate candidate for release to parole.
I would therefore grant the applicant leave to appeal, and allow the appeal by quashing the sentences of 4 years' imprisonment on Indictment 1539A and 3 years' imprisonment on Indictment 1539, and substituting for those sentences terms of 3 and 2 years' imprisonment respectively. Those sentences are lower than the sentences I would have imposed if the applicant had not pleaded guilty.
I would order that the terms of 3 years' and 2 years' imprisonment be served cumulatively; and cumulatively on the sentences imposed in respect of the s 32 offences. This would make a total sentence of 5 years and 6 months, less 2 weeks, backdated to 12 September 2002, with eligibility for parole.
Having regard to the recent amendments to the sentencing legislation, it would be necessary to reduce the sentences now to be imposed by one‑third. That is to say, to 24 and 16 months respectively, a total of 3 years and 4 months.
I would not interfere with the sentences imposed in relation to the s 32 offences. However, it would be necessary to adjust those sentences in order to comply with the present sentencing regime. Thus, the total period of imprisonment would be 3 years 8 months.
MCKECHNIE J: At the hearing of this application the Court granted leave to extend time to appeal against sentences totalling 7½ years, with parole eligibility, imposed on the applicant on 29 October 2002 in respect of two counts of stealing a motor vehicle and driving recklessly, and a series of summary offences including driving offences, driving under suspension and stealing.

The proceedings in the District Court

On 22 October 2002, the applicant was arraigned and pleaded guilty to charges contained in two indictments. There is no explanation as to why there were two indictments but this does not matter. Indictment number 1539A of 2002 charged that on a date unknown between

28 February 2002 and 6 March 2002 at Wembley the applicant stole a motor vehicle, namely, a Holden Commodore station wagon. The circumstance of aggravation pleaded was that he wilfully drove the motor vehicle in a manner that constituted reckless driving.

The second indictment numbered 1539 of 2002 charged that on 16 March 2002 at Scarborough the applicant stole a Ford sedan. It was pleaded as a circumstance of aggravation that he wilfully drove the vehicle in a manner that constituted reckless driving.
The applicant also pleaded guilty to eight summary offences pursuant to the provisions of the Sentencing Act s 32. I indicate the specific charges in brackets in my summary of the facts.
Those summary offences formed part of the overall criminal conduct encompassed between the indictments. At the hearing, the prosecutor outlined the facts in detail and the facts were not challenged.
At some point between the end of February and 6 March 2002 a person broke into the offices of Catherine McAuley Centre and removed a set of car keys for a Holden Commodore registration number 1APP 072 which was owned by the Centre and valued at $30,000. The car was taken. On 6 March 2002 the applicant and a person named Brand went to Liquor Barons in Mt Lawley in the Holden Commodore 1APP 072. The applicant took two bottles of Jim Beam from the shelf, ran out the door, jumped into the passenger seat and Brand drove the vehicle away. The alcohol was not paid for (JO3977/02). Shortly before 1.00 am on the following morning, 7 March 2002, the applicant and Brand, still in the Holden Commodore 1APP 072, went to the BP Osborne Park Service Station, corner Main and Royal Streets. They stole a small quantity of food valued at $20 and ran out and into the Holden (JO3978/02). The store assistant recorded the vehicle's registration and called the police. The vehicle was spotted by police about 10 minutes later in Wembley. Instead of following directions to pull over, the vehicle accelerated at high speed, being driven recklessly in a bid to evade capture. There were three people in the vehicle. One of the occupants of the vehicle threw objects at the pursuing police vehicle. The chase led onto the Mitchell Freeway North and continued at speeds up to 180 kph. When the vehicle attempted to exit at Whitfords Avenue from Mitchell Freeway it collided with a kerb and traffic signals and came to a stop on the median strip. The driver and the person in the back seat got out. The applicant, who had been in the front passenger seat, climbed into the driver's seat of the vehicle and accelerated away along Whitfords Avenue into Craigie. Police pursued the vehicle. The front driver's tyre had deflated. The vehicle was travelling on the incorrect side of the road at speeds up to 100 kph. Eventually, the tyre totally peeled away with the vehicle driving on the rim, showering sparks. The chase continued for a considerable distance on the incorrect side of the road with no headlights illuminated. Eventually, the vehicle turned right into oncoming north‑bound traffic on the Mitchell Freeway at which time the police ceased following it directly. They noted however that the vehicle was abandoned about one kilometre north of Ocean Reef Road and the applicant ran away. The vehicle was very badly damaged (IND1539A/02). The applicant also pleaded guilty to reckless driving on Mitchell Freeway, Padbury (JO3979/02) and driving without a licence and while legally disentitled to hold one (JO3980/02).
About 10 days later, again shortly after midnight, on 16 March 2002, the applicant drove a Ford XR6 sedan registration number 1ARN 952 into the BP Service Station in Scarborough Beach Road to purchase some food. The vehicle had been stolen from Centre Ford two days earlier and was valued at $25,000. The applicant drove the vehicle out of the service station accelerating hard on Scarborough Beach Road causing the rear wheels to spin and smoke. Police observed the vehicle a couple of minutes later and did a U‑turn to approach it. The applicant then accelerated the vehicle through a red light and drove at speeds up to 130 kph in a 60 kph zone, on the wrong side of the road, on Scarborough Beach Road, and then through the back streets of Doubleview until the police lost sight of it after it drove through a Stop‑sign at 70 kph.
Moments later the vehicle was seen in Alice Street, Doubleview, by police who attempted to stop the vehicle using emergency lights and sirens. However, the applicant accelerated away hard, driving at speeds of 140 kph on Alice Street, running a Stop‑sign at between 130 and 140 kph, the vehicle becoming completely airborne. When the vehicle landed it fishtailed and police aborted the pursuit. Shortly after the applicant jumped from the vehicle while it was still moving and it crashed into a fencing causing approximately $1,000 damage to the fence, $2,500 damage to the vehicle (JO1539/02). The applicant pleaded guilty to reckless driving in Alice Street (JO3984/02), failing to stop when called upon by police in Alice Street (JO3985/02) and driving without a licence while legally disentitled (JO3986/02). When the applicant and another were apprehended on 19 March 2002 they were placed in a police van to be conveyed from Joondalup to the East Perth Lockup. Both the applicant and the other person took turns, using a cigarette lighter, to burn the clear perspex window at the rear of the van (JO3981/02).
In outlining the facts before the Judge, the prosecutor did not clearly delineate which occasions of driving constituted the aggravating circumstances for the charge of stealing under the Code, s 378(2), and which part of driving constituted reckless driving under s 60 of the Road Traffic Act. A difficulty arises in relation to punishment, as the respondent concedes, but this is not addressed by the grounds of appeal and may not have any practical effect. The Sentencing Act s 11(1) provides that although a person may be charged and convicted of each offence, they are not to be sentenced for more than one offence where the evidence necessary to establish the commission of one offence is also the evidence necessary to establish the commission of another such offence.

After outlining the facts, the Judge noted that the applicant was still only 21 years old and single. He has never been employed. He has virtually no education and has suffered behavioural difficulties, and no doubt other difficulties, in his life. He noted that the applicant had pleaded guilty to the matters, a factor in favour to be taken into account. The Judge specifically referred to the decision of this Court in Quartermaine v The Queen [2000] WASCA 107. Quartermaine was a sentencing appeal from an effective sentence of 3¼ years imposed for one count of stealing a motor vehicle with the aggravating circumstance of reckless driving, two breaches of bail conditions, and one offence of driving while legally disentitled. Quartermaine had two previous convictions for stealing a motor vehicle, in each case having been a passenger in the vehicle. Quartermaine had an extensive record. In view of the fact of his age, the fact that it was the first occasion he had received a prison sentence, and the fact that the offence was not regarded as at the higher end of the scale of such offences, the Court reduced Quartermaine's sentence to one of 2 years' imprisonment for the stealing.
The Judge considered, with respect correctly, that the facts in Quartermaine are to be regarded as a less serious case.

Sentences imposed

The sentences imposed were indictment 1539A – 4 years' imprisonment, less 2 weeks allowed for time in custody. Indictment 1539 – 3 years' imprisonment. So serious were the matters that the Judge required the terms to be served cumulatively.

Section 32 Notice Matters

Charge No	Offence	Sentence
JO3977/02	Stealing	Imprisonment 3 months. Concurrent
JO3978/02	Stealing	Imprisonment 3 months. Concurrent
JO3979/02	Reckless driving	Imprisonment 12 months. Concurrent
JO3980/02	No motor driver's licence	Imprisonment 6 months. Motor driver's licence suspended for 2 years cumulative on present disqualification
JO3981/02	Damage	Imprisonment 1 month. Concurrent
JO3984/02	Reckless driving	Imprisonment 12 months. Concurrent
JO3985/02	Failed to stop	Fined $300. No time to pay
JO3986/02	No motor driver's licence	Imprisonment 6 months. Motor driver's licence disqualified for 2 years on present disqualification. Imprisonment to be concurrent with JO3980 but cumulative on other sentences. Motor driver's licence disqualification to be concurrent with JO3980.

Head Sentence - 7 years 6 months less 2 weeks from 12 September 2002 with parole eligibility. Motor driver's licence cancelled for 2 years cumulative on present disqualification.
By allowing for time spent in custody the Judge backdated the sentence from 12 September 2002 which is when the applicant was first remanded in custody. Despite the prosecution's submissions, and his own considerable reservations, the Judge made a parole eligibility order.

The grounds of appeal

The grounds of appeals are as follows:
"1.The learned sentencing Judge did not give sufficient consideration to the totality principle in sentencing the applicant when the sentence of 7.5 years was imposed, having regard to inter alia the following matters:
1.1the applicants age at the time of the commission of the offences (21 years);
1.2the applicants plea of guilty to the offences;
1.3the fact that the applicant suffered from some mental illness and was admitted for psychiatric treatment to Graylands Hospital (further particulars will be provided after return of subpoena);
1.4the fact that when the applicant stood for sentence, he had been serving time in prison that could have been 'parole time' and also time for escaping legal custody."
The applicant's argument has been ably put by Mr Hanbury who, in the best traditions of the Bar, appeared without fee on his behalf.
The applicant, through counsel, concedes that imprisonment was the only sentencing option and the fact that the sentences were made cumulative upon an existing sentence of imprisonment is not contested.
The applicant submits that the Judge erred in not referring at all to the totality principle. Although the Judge did not refer to it in his final remarks it is clear from earlier remarks he made on 22 October 2002 that he was conscious of the need for totality. In the course of interchange with then defence counsel, he referred both to the question of totality and to the plea of guilty when he said:
"Well, the other issue which I have already adverted to very briefly is that given that what I regard as the late pleas to the new matters, they weren't necessarily late from his point of view but they were late from my perspective - - - I think structure and totality also need to be considered and I will bear those matters in mind…"
In addressing the applicant directly, shortly afterwards, and explaining why he was remanding the matter he said:
"…notwithstanding your pleas of guilty and your youth but also taking into account your record, that a custodial term served immediately is inevitable and it will be a substantial one but I do need to think about how long it is, how it is structured and importantly from your point of view it's important that I understand and give proper consideration to the question of any future eligibility for parole."
These observations from the Judge clearly show that the sentence he imposed had regard to the effect on the applicant of the total sentence.
Furthermore, the Judge clearly had regard to, and took account of, the plea of guilty. It was not necessary for the Judge to specify an actual percentage in so doing.
Although I consider that the Judge expressly took account of the totality principle, it remains for consideration whether he nevertheless erred in imposing a sentence which was, in all the circumstances, manifestly excessive; that is, whether he took sufficient account of the totality principle. The applicant points particularly to his youth and his mental condition. His mental condition and difficulties were not specifically before the Judge in the form of psychiatric evidence. However, those matters were adverted to by defence counsel, together with details of the applicant's background. The Judge accepted that the applicant had, for whatever reason, suffered behavioural difficulties and, no doubt, other difficulties all his life.
The applicant, on any view, presented a difficult sentencing exercise. The offences, particularly the two indictable offences, were very serious offences, causing considerable damage to the motor vehicles involved. The aggravating feature was the reckless driving. Parliament has provided that the maximum penalty for reckless driving is 12 months' imprisonment. I reach this conclusion because the aggravating circumstance raises the maximum from 7 years to 8 years under the Criminal Code. The maximum penalty under s 60 of the Road Traffic Act for a third or subsequent offence is imprisonment for 12 months. In imposing a sentence a Judge cannot exceed a figure of 12 months for the aggravating circumstance.
I return to the first indictment number 1539A/02. The objective facts do not allow the conclusion to be drawn that the applicant removed the car from the Catherine McAuley Centre. However, he was unlawfully using the car and thereby stealing it when he was a passenger in the car during the first part of the police chase. He then continued to use the vehicle and drive it recklessly after it had stopped on the median strip. The reckless driving was in the upper range of offences of that type and would justify a sentence close to the maximum either for the offence under s 60 of the Road Traffic Act, or as a circumstance of aggravation. I cannot discern from his reasons why the Judge considered all of the circumstances required a sentence of 4 years for this offence and 3 years for the offence disclosed in indictment 1539/02. The value of the vehicles was broadly comparable although it may be that the Holden Commodore was more extensively damaged. Accepting that the two examples of reckless driving disclosed in the offences are towards the upper range of seriousness, I am still unable to discern why count 1 attracted a sentence 12 months more than count 2. The respondent submits that the only reason can be that the Judge reduced the sentence on count 2 having regard to totality. That may well be so and I am prepared to proceed on that basis.
The offences were of considerable seriousness and the protection of the public, both from having their cars taken or used in this way and in the physical danger consequent upon reckless driving, remains a very important consideration. Sadly, the applicant has had few chances in life. He is only 21 years old and yet has amassed what the Judge described, correctly, again with respect, an appalling record. As indicated in the pre‑sentence report, and indeed from an outburst in this Court on 24 March 2004, the applicant seems to have little or no appreciation of the criminality and the effect of his conduct for whatever reason. A sentence must not be disproportionate to the criminality and must not go beyond the proper bounds of punishment. In particular, it should not exceed the proper bounds of punishment by reason only of community protection: see Veen v The Queen (No 2) (1988) 164 CLR 465.
In my opinion, the decision of the Judge to make the sentences cumulative upon each other discloses no error. Nor was there an error in further accumulating the sentences for driving while disqualified, especially in view of the past record of offending in that regard. The matters of the applicant's youth and any psychological impact were, in my view, sufficiently encompassed by the Judge when he made a parole eligibility order.
The resultant sentence is a very heavy one, especially when it falls upon a 21 year old notwithstanding his prior record. The question which arises is whether, in the circumstances, the accumulated sentences have resulted in a burden which is crushing to the applicant having regard to his age and other circumstances. The other question is whether the sentences, taken as a whole, are disproportionate to the criminality. The sentences must be so disproportionate as to manifest error in the exercise of the sentencing discretion. While the accumulated sentences are a heavy burden, I cannot find that they exceeded the exercise of a proper sentencing discretion. I am unable to discern error in the approach of the Judge, nor in the actual result.
At the hearing of the appeal, Mr Hanbury urged the Court to obtain a psychiatric report in view of the fact that the applicant had had previous admissions to Graylands Hospital. The Court acceded to this request and has received both a psychiatric report and a psychological report. These were not before the sentencing Judge. The respondent pointed to the limited use which might be made of them. I understood the general contention to be that the Court should only have regard to the psychiatric report if it had detected error in the sentencing process and found it necessary to re‑sentence.
While that is right as a general proposition, there are circumstances where a more comprehensive report can throw more light on the circumstances which were before the Judge in a less detailed form. In such cases the material is not properly to be regarded as fresh evidence: McMaster (2004) 144 A Crim R 428.
In the event, I have had regard to the psychiatric and psychological reports. The information is more comprehensive than that put before the Judge although, as I have noted, the Judge took account of the applicant's behavioural problems and other difficulties. Those difficulties are extensive. Sadly, the reports tend to confirm the applicant's lack of insight into his behaviour. The psychiatrist was of opinion that the applicant does not suffer any major mental illness. The applicant has a severe anti‑social personality disorder, without evidence of a psychiatric disorder within the prison system. The psychologist was of opinion that the applicant presents a high risk of re‑offending with few factors that can be argued for a lower risk at this point of time. The psychologist notes that the applicant "is a highly troubled young man with major psychological issues that require intensive psychotherapy to address".
Although the reports give a more detailed picture of the applicant, I remain unpersuaded that there was an error in sentencing or that the sentence requires correction to prevent a miscarriage of justice in view of the additional information.
I would grant leave to appeal but dismiss the appeal.