Pearce v Ogg
[2019] WASC 18
•7 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: PEARCE -v- OGG [2019] WASC 18
CORAM: FIANNACA J
HEARD: 1 NOVEMBER 2018
DELIVERED : 7 FEBRUARY 2019
FILE NO/S: SJA 1082 of 2018
BETWEEN: GREGORY WAYNE PEARCE
Appellant
AND
AARON OGG
First Respondent
DEREK NICHOLSON
Second Respondent
ON APPEAL FROM:
For File No: SJA 1082 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J RANDAZZO
File Number : PE 27385 of 2017, PE 27386 of 2017, PE 27387 of 2017, PE 30837 of 2017
Catchwords:
Criminal law - Sentencing - 'Crime-spree' - Whether sentences should have been made concurrent - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to appeal out of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A E Monisse |
| First Respondent | : | Ms M M Yeung |
| Second Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Not applicable |
| First Respondent | : | Director of Public Prosecutions (WA) |
| Second Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Alford v The State of Western Australia [2018] WASCA 186
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Billington v Depetro [2018] WASC 171
Bransby v The Queen [2010] WASCA 165
Clinch v The Queen (1994) 72 A Crim R 301
Dinsdale v The Queen (2000) 202 CLR 321
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
HFM v The State of Western Australia [2012] WASCA 217
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 185 CLR 665
Markarian v The Queen (2005) 228 CLR 257
McCoombe v The State of Western Australia [2016] WASCA 227
Nancarrow v The State of Western Australia [2006] WASCA 238
Nicholls v The State of Western Australia [2019] WASCA 10
O'Bryne v Whitney [2016] WASC 420
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193
Sartori v The State of Western Australia [2014] WASCA 98
Scolaro v Shephard [No 2] [2010] WASC 271
FIANNACA J:
Summary of the appeal and outcome
The appellant seeks leave to appeal against a sentence of imprisonment imposed on him in the Perth Magistrates Court on 18 December 2017. He was sentenced for a number of offences, which were committed on 7 May 2017. One of the offences was reckless driving to escape a police pursuit ('the aggravated reckless driving offence'). For that offence he was sentenced to 7 months' imprisonment, with eligibility for parole. The learned magistrate ordered that the appellant serve that sentence cumulatively upon a term of 3 years and 6 months' imprisonment imposed on him in the District Court on 14 December 2017. That sentence was for an offence of aggravated home burglary ('the District Court offence'), which was also committed on 7 May 2017. The other sentences imposed by the magistrate were ordered to be served concurrently with the sentence for the aggravated reckless driving offence.
The appeal is against the magistrate's order that the sentence of 7 months' imprisonment be served cumulatively on the sentence imposed in the District Court. The essence of the appellant's argument is that the District Court offence and the offences for which he was dealt with in the Magistrates Court were part of a single course of criminal conduct over a relatively short period, and that, in such circumstances, the sentences in the Magistrates Court should have been ordered to be served concurrently with the District Court sentence.
The issue is whether the accumulation of the sentence of 7 months' imprisonment upon the sentence for the District Court offence resulted in a total sentence for all of the criminal offending committed by the appellant on 7 May 2017 that is unreasonable and unjust because it breaches the totality principle.
There is a preliminary issue to be considered, in that the appeal was commenced some five months after the limitation period, and the appellant therefore requires an order extending the time for the commencement of the appeal. As I explain below, the explanation for the delay is unsatisfactory, but in the circumstances of this case, if the grounds of appeal have merit, it would be in the interests of justice to grant an extension.
For the reasons which follow, the grounds of appeal do not have merit. The sentence imposed did not breach the totality principle and was not unreasonable or unjust. The application for leave should be refused and the appeal dismissed.
The charges and outcomes
In total, the appellant was charged with five offences in respect of his criminal conduct on 7 May 2017.
One of the offences, an aggravated home burglary, contrary to s 401(2)(a) of the Criminal Code (WA), had to be dealt with on indictment and was committed to the District Court. He pleaded guilty to that offence in the District Court, before his Honour Judge Birmingham QC, on 14 December 2017. His Honour sentenced the appellant to 3 years and 6 months' imprisonment, with eligibility for parole, and ordered that the sentence be taken to have commenced on 7 May 2017.
The other charges with which the appellant was charged, and the applicable penalties, were:[1]
(1)The aggravated reckless driving offence (Road Traffic Act 1974 (WA) (RTA), s 60(1A)(b)), which was committed in the circumstance of aggravation referred to in s 49AB(1)(c) of the RTA, namely, to escape pursuit by police. The penalty for the offence committed in those circumstances is 5 years' imprisonment: s 60B(4). The summary conviction penalty, which provides the jurisdictional limit of the sentence that could be imposed by the magistrate, is 2 years' imprisonment. By s 60B(5) the magistrate was obliged to impose a sentence of at least 6 months' immediate imprisonment.
(2) Being armed in a way that may cause fear ('being armed') (Criminal Code (WA) s 68), for which the maximum penalty is 7 years' imprisonment. The summary conviction penalty is 3 years' imprisonment and a fine of $36,000.
(3) Criminal damage (Criminal Code s 444), for which the maximum penalty is 10 years' imprisonment. The summary conviction penalty is 3 years' imprisonment and a fine of $36,000.
(4)Failing to comply with a police direction to stop a vehicle, in circumstances in which the appellant was driving to escape pursuit by police ('failing to stop') (Road Traffic (Administration) Act 2008 (WA) s 44 and s 39), for which the maximum penalty is 2 years' imprisonment.
[1] As it is not relevant to the issue in this appeal, I have not referred to requirements for disqualification from holding a driver's licence.
The appellant pleaded guilty to those offences in the Magistrates Court on 18 December 2017, before Magistrate Randazzo. His Honour imposed the following sentences:
(1)7 months' imprisonment for the aggravated reckless driving offence;
(2) 4 months' imprisonment for the offence of being armed;
(3) 2 months' imprisonment for the offence of criminal damage; and
(4)4 months' imprisonment for the offence of failing to stop.
The sentence for the aggravated reckless driving offence was the head sentence. Each of the other sentences was ordered to be concurrent with that sentence. His Honour ordered that the total effective sentence of 7 months' imprisonment be served cumulatively upon the sentence the appellant was then serving for the District Court offence. The appellant was made eligible for parole.
The effect of the sentences imposed by the magistrate is that the appellant is liable to serve a total effective sentence of 4 years and 1 months' imprisonment for the totality of his offending on 7 May 2017. He will be eligible for release on parole after serving 2 years and 1 month from 7 May 2017.
Before turning to the magistrate's sentencing remarks, it is necessary to consider the facts on which the appellant was sentenced for all of the offences.
Facts of the offending
District Court offence
The facts for the offence of aggravated home burglary were outlined in the District Court proceedings as follows.[2]
[2] The summary combines the facts stated by the prosecutor with the sentencing judge's outline. See District Court, 14 December 2017, ts 5, 14 ‑ 15.
At approximately 12.55 pm that day, the appellant was leaving his residential unit when he became involved in a heated argument with his neighbour, who lived in the same complex. She is the victim of the aggravated home burglary offence. There had been what were described as 'ongoing issues' between the victim and the appellant. I note that counsel for the appellant in the District Court informed the judge that the appellant had been in a relationship with the victim. It appears there had been a falling out and the appellant claimed he had been subjected to verbal abuse by the victim. In any event, when the argument occurred on 7 May 2017, the victim was in her home. The appellant pulled violently at the front door, while yelling abuse and threatening the victim. The door lock broke and the appellant entered the unit. Once inside, he kicked a coffee table and caused it to strike the victim to the head. He then struck her several times to the head and body with a glass cup and a candleholder, and then punched her several times to the head. The victim sustained cuts to her nose, eyebrow and head. She required stitches and reported soreness to her body and ongoing blurred vision.
Although the offence was correctly described, as a matter of law, as an aggravated home burglary, Birmingham QC DCJ noted, quite properly, that the offence involved a serious violent home invasion.[3]
Magistrates Court offences
[3] District Court, 14 December 2017, ts 12 and 14.
The facts in respect of the offences for which the appellant was dealt with in the Magistrates Court were as follows.
After committing the aggravated home burglary, the appellant left that address and drove to another address to confront the neighbour who lived to the rear of his unit, the second victim. She was known to the appellant and the victim of the first offence. The appellant got out of his car carrying a tomahawk. He then struck the second victim's front gate several times with the tomahawk, causing damage to the gate. The second victim had come to the front door. The appellant yelled abuse at her while he damaged the gate. He then began to climb over the gate, going towards the victim. Fearing for her safety, the victim shut the door. The appellant then returned to his car and drove off.
Those were the facts for the offences of going armed and criminal damage.
At around 1.30 pm that day, the appellant was driving in Bayswater when he overtook a police car on the wrong side of the road. The officers in the police car activated the emergency lights and sirens to signal to the appellant to stop. The appellant failed to stop. The police pursued his vehicle. During the pursuit that followed, the appellant drove in an extremely dangerous manner. He drove at speeds of up to 100 km/h. He made turns at speeds that caused his tyres to lose traction, on one occasion resulting in one of his wheels colliding with a kerb. He failed to stop at a stop sign at Guildford Road, a major road, forcing other drivers to brake suddenly to avoid collision. He overtook vehicles by unlawfully crossing over solid double white lines, into the path of oncoming traffic, forcing other drivers to take evasive action. He drove at speeds up to 70 km/h in built‑up areas. The police were able to maintain sight of the appellant's vehicle and eventually boxed the appellant in. They were thereby able to apprehend him. The tomahawk axe he had used to damage the gate was still in the driver's door of his vehicle.
Those were the facts for the aggravated reckless driving offence and the offence of failing to stop.
The Magistrate's remarks
It is only necessary to outline those aspects of the learned magistrate's sentencing remarks that are relevant to the issues arising from the grounds of appeal, to which I will return shortly. Before doing so, it is important to note that the plea in mitigation was brief. That is no criticism of counsel appearing for the appellant at first instance, because it is obvious that the matter was approached on the basis that the sentencing magistrate had read the transcript of the proceedings in the District Court on 14 December 2017, and most of what needed to be said in mitigation had been said at that time.[4] Further, the nexus between the District Court offence and the offences before the magistrate, both temporally and by reference to his state of mind, was also assumed in the submissions made at first instance. It is obvious that counsel did not see a need to spell those matters out.
[4] Ts 5 – 6.
His Honour noted that he had read the transcript of proceedings in the District Court.[5] His Honour also made it clear that he was mindful of the fact that the appellant had received a sentence of 3 years and 6 months' imprisonment, backdated to commence on 7 May 2017, for the aggravated burglary offence, and that he was serving that sentence as at 18 December 2017.[6]
[5] Ts 6.
[6] Ts 6, 7, 9 and 10.
His Honour took into account matters that had been put in mitigation on behalf of the appellant both in the District Court and in the Magistrates Court.
In relation to the seriousness of the offending, his Honour noted that the tomahawk was a dangerous weapon and that the appellant's striking of the gate with that weapon 'would clearly be an alarming and fearful set of circumstances' for his neighbour.
In relation to the offence of aggravated reckless driving, his Honour said:[7]
And, clearly, at the location, at the speed, at the time, the manner in which you drove, on occasion losing traction, on occasion driving such a way that other vehicles had to manoeuvre to avoid a collision with you, crossing a double white line and, clearly, over the period of time and the manner in which you drove, this was patently a serious case of reckless driving.
[7] Ts 7.
Having noted that the appellant's criminal record demonstrated a 'continuing pattern of disobedience to the law', his Honour said:[8]
There's a need for specific deterrence and, in my view, particularly the manner in which you armed yourself and particularly the reckless driving, there is a need here for a penalty to be imposed that carries with it general deterrence to warn others that this sort of conduct and behaviour is simply unacceptable and people can be firmly dealt with and jailed where appropriate.
[8] Ts 8.
His Honour also identified the need for personal deterrence of the appellant, saying:[9]
Largely in the past, your offending has been associated with your inability to control your anger and to manage it, and that's self-evidently what has seemed to have occurred on 7 May 2017, certainly in relation to your behaviour and conduct in relation to your neighbour. You certainly had problems with stress and coping with that stress. And, in the end, there has been a continuing pattern of disobedience to the law that warrants, as I've said, specific deterrence.
[9] Ts 8 – 9.
Having concluded that a term of imprisonment was appropriate for each of the offences, his Honour then very clearly had regard to the application of the totality principle. He said:[10]
I've also turned my mind to the question of whether the sentences that I have in mind for you should be served cumulatively or concurrently as between each other, as well as questions of concurrency and cumulation with the District Court sentence.
I repeat, I'm mindful of the fact that you are serving the sentences imposed by Judge Birmingham of three years and six months. I have come to the very clear view here that when I have regard to questions of concurrency and cumulation but, more importantly, the totality principle, the sentence of imprisonment that I should impose here should be not only commensurate with the seriousness of the offences, but also should be not too crushing of you and taking into account personal circumstances that are relating to you and your position in life at this point in time.
[10] Ts 9.
After determining the individual sentences, and that they should be served concurrently with each other, his Honour said that the aggregate sentence of 7 months' imprisonment was to be served cumulatively on the District Court sentence that was imposed on 14 December 2017.[11]
[11] Ts 10.
The appeal
The appeal is brought pursuant to s 7 of the Criminal Appeals Act 2004 (WA), which is in pt 2 of that Act. An appeal under pt 2 cannot be commenced later than 28 days after the date of the decision of the Magistrates Court, unless this Court orders otherwise.[12]
[12] Criminal Appeals Act 2004 (WA), s 10(3).
This appeal was commenced on 12 June 2018,[13] nearly five months after the last date for commencement, being 15 January 2018. The appellant requires an extension of time for the appeal to proceed. Consideration of that issue has been subsumed in the determination of the appellant's application for leave to appeal. On 31 July 2018, McGrath J ordered that the application for leave to appeal be heard with the appeal.
[13] The date on which the Appeal Notice was filed.
I deal with the application for an extension of time below.
The law applicable to the appeal
The grounds on which an appeal may be made from the decision of a Magistrates Court are set out in s 8 of the Criminal Appeals Act. Relevant to this appeal, that section provides that an appeal may be made on the ground that the magistrate made an error of law[14] or imposed a sentence that was excessive.[15]
[14] Criminal Appeals Act, s 8(1)(a)(i).
[15] Criminal Appeals Act, s 8(1)(a)(iii).
The law as it relates to appeals against sentence is well settled and was not in dispute in this case. Although s 8 provides specific grounds on which an appeal may be brought, the principles that apply in appeals against sentences imposed in superior courts[16] also apply in appeals brought under pt 2 of the Criminal Appeals Act. Accordingly, an appellant must establish that the sentencing discretion has miscarried at first instance. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.[17] The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of discretion, to impose the sentence he imposed.
[16] Which are dealt with in Pt 3 of the Criminal Appeals Act.
[17] Lowndes v The Queen (1999) 185 CLR 665, [15]; Markarian v The Queen (2005) 228 CLR 257, [27]; Scolaro v Shephard [No 2] [2010] WASC 271 [200] (Martin CJ).
A claim, in accordance with s 8(1)(a)(iii), that a sentence was excessive is a claim of implied error.[18] The sentence must be shown to be unreasonable or plainly unjust.[19] The excess must be plainly apparent.[20]
[18] See Billington v Depetro [2018] WASC 171 [13] where I discussed the equivalence of that ground under s 8(1)(a)(iii) with the more usual formulation of 'manifestly excessive'.
[19] McCoombe v The State of Western Australia [2016] WASCA 227 [25]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J); [22] (Gaudron and Gummow JJ); [59] (Kirby J).
[20] Dinsdale v The Queen [6].
Grounds of appeal
The appellant relies on two grounds of appeal. The grounds are that the learned magistrate made errors of law, in that:
(1)the cumulative order resulted in a total sentence that was disproportional to the Appellant's total criminal conduct on 7 May 2017 (the first limb of the totality principle); and
(2) the cumulative order resulted in a crushing sentence being imposed on the Appellant (the second limb of the totality principle).
While the grounds purport to identify errors of law, the appellant did not argue that the magistrate failed to have regard to or misstated any principle of law. It is abundantly clear from the sentencing remarks to which I have referred that the magistrate understood and applied the relevant principles. Rather, the appellant's argument is that the magistrate erred in the application of the totality principle to the circumstances of his case. A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome.[21] In effect, the grounds allege that the sentence was excessive, by virtue of its accumulation on the sentence imposed in the District Court. The 'error of law' in each case is an implied error arrived at by having regard to the result. The appellant must demonstrate that the result was unreasonable or plainly unjust.
[21] Nicholls v The State of Western Australia [2019] WASCA 10 [34].
Requirement for leave to appeal
Leave is required on each ground of appeal, and must not be given unless the ground has a reasonable prospect of succeeding.[22] The respondent argues that neither of the grounds of appeal has merit and that leave should be refused in relation to both grounds.[23] If leave is refused, the appeal is taken to be dismissed.[24]
[22] Criminal Appeals Act 2004 (WA) s 9(2); Samuels v The State of Western Australia [2005] WASCA 193 [56].
[23] Respondent submissions, 10.
[24] Criminal Appeals Act 2004 (WA) s 9(3).
As I said earlier, the appeal has been brought nearly 5 months out of time.
The test for the grant of an extension of time to appeal is whether it is in the interests of justice to grant an extension.[25] The time limit specified in s 10(3) of the Criminal Appeals Act must be taken seriously and the question of an extension of time must not be taken for granted.[26] There may be cases where an extension of time is not granted even where there is merit in a ground of appeal.[27]
[25] Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12] – [14]; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108] (Wheeler J).
[26] Eastough v The State of Western Australia [No 2] [12].
[27] Eastough v The State of Western Australia [No 2] [14].
The appellant filed an affidavit sworn by him on 7 June 2018 in which he sought to explain the delay. In essence, he states that, soon after the sentence was imposed, he wanted to appeal against the magistrate's order that the sentence be served cumulatively on the District Court sentence, and he wrote to Legal Aid WA on 22 December 2017 advising that he wished to do so. He states that he signed an application for Legal Aid for the purposes of such an appeal on 16 January 2018 and that he has been informed by his lawyer that a grant was received by him on 12 March 2018 to consider the likelihood of success of an appeal. He states that his lawyer advised him in May 2018 that there was merit in lodging an appeal. Of course, when the appellant signed the application for Legal Aid, the appeal period had already expired.
The appellant contends that, on the basis of those facts, there is a reasonable explanation for the delay. In essence, the bringing of the appeal was contingent on a grant of Legal Aid and the obtaining of legal advice. Counsel for the appellant noted that the appellant is not a lawyer and his ability to conduct an appeal from custody would be very limited. However, it is not uncommon for appellants who are not lawyers and who are serving terms of imprisonment to file notices of appeal. The appellant has not deposed that he was unaware of the limitation period. He has not annexed any of the correspondence. He has not explained what steps he took, if any, to ensure his application for Legal Aid was considered expeditiously. On the face of the affidavit, the basis on which he wished to appeal soon after the sentence was imposed is essentially the same as the grounds on which the application for leave was lodged some four months later.
In my opinion, the appellant's delay in filing the appeal notice is lengthy and the explanation for the delay is not satisfactory. Nonetheless, this is a case in which, if the grounds of appeal have merit, it would be in the interests of justice to grant the extension of time. The determination of that application, therefore, will follow the decision in respect of the merits of the application for leave to appeal.
Consideration of the appellant's submissions
The appellant does not challenge the individual sentences imposed for the offences dealt with in the Magistrates Court. I note that for the offence of aggravated reckless driving, the sentence was not significantly greater than the mandatory minimum term the magistrate was required to impose.
As I have noted, the essence of the appellant's argument is that the magistrate's order for cumulacy breached the totality principle, in that the resulting aggregate sentence was excessive, as it was disproportionate to the totality of his offending on 7 May 2017. Regrettably, the appellant's submissions were not confined to that submission, as they ought to have been. A number of the appellant's arguments in effect attributed express error to the magistrate when there was no ground alleging express error. The appellant's counsel did not apply to amend the grounds. Instead, he sought to dress those submissions up as 'reinforcement' of the existence of implied error. It was an ill‑fitting argument that must be rejected. Nevertheless, I will address the merits of the submissions that purport to identify deficiencies in the sentencing remarks, as they can be disposed of readily and a number of the points I will make will be relevant when I deal with the substantive issues.
The magistrate did not refer to a 'crime spree'
The appellant's first argument was that the magistrate erred by failing to explicitly acknowledge that, in combination with the District Court offence, the offending for which the appellant was being sentenced constituted a 'crime spree'. It was submitted that, if the magistrate had acknowledged that the offending was part of a 'crime spree', he would have been guided by the so‑called 'one transaction rule'. It was submitted that his Honour failed to treat all of the offending on 7 May 2017 as one transaction, because he did not have regard to the fact that it was a 'crime spree'. The argument is without merit.
It is spurious to argue that a judicial officer who is sentencing an offender who has committed a series of offences that might properly be described as a 'crime spree', must use that description in his or her sentencing remarks. The fact that offences have occurred in close temporal proximity would ordinarily require consideration of the totality principle in determining whether sentences should be served cumulatively or concurrently. It is obvious from the magistrate's sentencing remarks that he was acutely aware of the temporal connection between the District Court offence and the offences for which he was sentencing the appellant, and the need to give careful consideration to whether there should be any accumulation. It is noteworthy that defence counsel at first instance did not use the words 'crime spree' or make any submission on that basis.
The hollowness of the appellant's argument was laid bare when his counsel acknowledged that it is 'very difficult to say' that because the magistrate did not expressly refer to the fact that it was a crime spree, he did not take it into account.[28]
[28] Appeal ts 8.
As for the so‑called 'one transaction rule', it is instructive to note the comments of the Court of Appeal in Alford v The State of Western Australia:[29]
We are unable to accept the appellant's submission that the so-called 'one transaction rule' justified the imposition of totally concurrent sentences in this case. As this court has said on numerous occasions, the 'one transaction rule' is no more than a rule of thumb, and is not to be understood as an immutable rule that offences committed in the one transaction will always attract concurrent sentences. The duty of a sentencing judge is to impose a just and appropriate measure of the total criminality involved in the commission of multiple offences which occur in the one incident. Sometimes the imposition of concurrent sentences does not provide a just and appropriate measure of the total criminality involved. In such cases, a sentencer is obliged to impose a measure of cumulacy.
[29] Alford v The State of Western Australia [2018] WASCA 186 [35].
The Court was of the view in that case that it was a matter where to impose totally concurrent sentences would have resulted in a total effective sentence that did not adequately reflect the total criminality involved in the offences.[30]
The magistrate did not refer specifically to the offences occurring 'in a short space of time'
[30] Alford v The State of Western Australia [35].
In a similar vein to the first argument, the appellant submitted that the magistrate did not refer specifically to the fact that the District Court offence and the offences for which he was sentencing the appellant occurred 'in a short space of time'. Again, it was submitted that this may have contributed to the imposition of a sentence that breached the totality principle.
The first point to be made about this argument is that the question of what is a 'short space of time' is relative. Certainly, the offending in respect of the neighbour whose gate the appellant damaged with a tomahawk, occurred very soon after the District Court offence. However, the appellant's conduct in committing the offences of failing to stop and aggravated reckless driving commenced approximately half an hour later and involved very different offending. Further, the appellant persisted with the reckless driving over a period of time.
Secondly, as I noted in referring to the magistrate's remarks, the appellant's counsel at first instance made submissions on the basis that the magistrate had read the transcript of the proceedings in the District Court and was aware, therefore, of the temporal nexus between the District Court offence and the other offences. Defence counsel did not specifically make the point that the offences occurred 'in a short space of time'. She referred only to the offending occurring 'on the one particular day'.[31]
[31] Appeal ts 5.
The comments made in Alford v The State of Western Australia, referred to at [49] above, are again apposite in the present context.
The appellant's submission is without merit.
The magistrate did not refer to the appellant being in an agitated state
The next point was really an aspect of the two previous arguments. The appellant submitted that another reason for treating the offending as one transaction, which justified concurrent sentences for all of the offences, was that all of the offending occurred in circumstances in which the appellant was in an angry, vengeful and agitated state, which had persisted from the time of the commission of the aggravated burglary.[32] Again, the appellant submitted that the magistrate did not mention that factor and did not appreciate the point.[33]
[32] Appeal ts 6 – 7.
[33] Appeal ts 7.
As with the first two points, the submission treats the sentencing process in an artificial manner and is without merit. Defence counsel at first instance informed the magistrate that the appellant had 'left the relationship with the victim of the indictable matter behind', but that:[34]
The (indistinct) unfortunately continued and on this particular day, Mr Pearce snapped.
[34] Ts 6.
From the context, it appears that the part that is said to be 'indistinct' was a reference to the victim having taunted the appellant, which had been referred to in the District Court proceedings.
As is obvious from [27] above, the magistrate had regard to the fact that the appellant had been unable to control his anger and stress, and that the offending was to be considered in that context.
Again, the appellant's reliance on the so‑called 'one transaction rule', as if it were an immutable rule, is misplaced and obscures the real question, which is whether the aggregate sentence was a just and appropriate measure of the total criminality involved in the appellant's commission of multiple offences on 7 May 2017.
Whether the sentence imposed breached the first limb of the totality principle
The appellant's submission that reflects the first ground of appeal is that the imposition by the magistrate of a cumulative sentence of 7 months' imprisonment resulted in an aggregate sentence, when combined with the sentence imposed in the District Court, that was disproportionate to the totality of his criminal offending on 7 May 2017.
The appellant submits that the starting point is that the magistrate should have approached his task by considering what would have been an appropriate sentence for all of the offending, having regard to totality, if the appellant had been sentenced at the same time for all offences. The 'notional single sentencing exercise' approach was discussed by me in O'Bryne v Whitney.[35] The appellant placed significant reliance on that case, both for my discussion of the principles and as a comparator for determining whether the sentence imposed by the magistrate in this case resulted in an aggregate sentence that was excessive.
[35] O'Bryne v Whitney [2016] WASC 420.
In O'Bryne v Whitney, I noted some of the difficulties with the 'notional single sentencing exercise' approach.[36] It is not necessary to discuss those issues in this case, because there is no dispute about the applicable principles. They have been stated in numerous authorities. As I noted at [34] in O'Bryne v Whitney, referring to a number of those authorities, 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.[37]
[36] O'Bryne v Whitney, [39] – [44].
[37] See, in particular, Jarvis v The Queen (1993) 20 WAR 201, 212 (Murray J).
That approach was incorporated in the following passage from Alford v The State of Western Australia, which concisely encapsulates the effect of the totality principle:[38]
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
[38] Alford v The State of Western Australia [24(3)].
As I also noted in O'Bryne v Whitney, referring to relevant authorities:[39]
(1)A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.
(2)It has also been recognised that the severity of a sentence may increase exponentially relative to the increase in length of the sentence.
(3)However, consistently with what was said in Alford v The State of Western Australia, in the passage quoted at [49] above, 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.[40] 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.[41]
[39] See O'Bryne v Whitney [29] - [30].
[40] See 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].
[41] Bransby v The Queen [2010] WASCA 165 [38].
In the present case, the magistrate made several references to the totality principle and to being aware of the proceedings and the sentence imposed four days prior in the District Court.[42] In my opinion, on a reasonable analysis of his Honour's sentencing remarks, he sentenced the appellant on the basis that the offences with which he was dealing were part of a broader course of offending that commenced with the aggravated home burglary, and that the sentences he imposed had to take into account the sentence imposed in the District Court, so that the combination of sentences was a proper reflection of the totality of the appellant's offending.
[42] Ts 6 - 7.
The appellant submitted that all of the sentences imposed by the magistrate should have been made concurrent with the sentence for the District Court offence because the offences essentially constituted a continuous course of conduct over a relatively short period, precipitated by a persistent agitated state.
The argument assumes that each of those factors, and the combination of factors, necessarily required that all sentences imposed for the offending be served concurrently. For the reasons stated in Alford v The State of Western Australia (see [49] above), the assumption is wrong. Such factors give rise to the need for careful consideration of whether it is appropriate to make any of the sentences cumulative, as the learned magistrate noted, but the determination of that question will depend on the facts of the offending and the circumstances of the accused. Importantly, it will depend on what is necessary to reflect the totality of the criminal conduct.
There were a number of reasons why it was open to the magistrate to order that the sentences he imposed be served cumulatively upon the District Court sentence:
(1)First, each of the offences affected different legally protected interests. The offences of criminal damage and going armed involved the violation of the rights of the second victim. The offending caused her significant fear. The offence of aggravated reckless driving affected other road users, putting them in danger.
(2)Secondly, the offence of going armed involved an additional element of introducing a dangerous weapon into his violent and volatile conduct.
(3)Thirdly, the aggravated reckless driving was a particularly serious case of such offending. It was the offence that the prosecutor at first instance submitted particularly warranted a cumulative sentence. The fact that Parliament has mandated the imposition of a minimum term of 6 months' imprisonment signifies an expectation that there will be specific punishment for such offending. As I noted in discussion with the appellant's counsel during the appeal hearing, there are such profound implications for the safety of the community in the kind of offending that occurred during the police chase, that the community might expect, justifiably, that there would be additional punishment.
(4)In all the circumstances, to fail to order some cumulacy of the sentences would potentially create the undesirable impression that an offender in the appellant's circumstances can continue to offend without additional consequences, provided it is within a short period of time.
(5)There was nothing in the appellant's antecedents that warranted leniency. In fact, as the magistrate noted on a number of occasions, the appellant had demonstrated a continuing pattern of disobedience to the law. The need for personal deterrence will ordinarily lead to an increase in the severity of a sentence. Where an offender is being sentenced for a number offences, that increase is likely to be achieved by at least some accumulation of sentences.
(6)The need for general deterrence in respect of all of the offences dealt with in the Magistrates Court, but especially the offences of going armed and the aggravated reckless driving, was also a factor that militated in favour of additional punishment by way of a cumulative sentence.
The appellant's argument that the aggregate sentence resulting from the magistrate's order was manifestly excessive ultimately involved little more than an assertion that the term of 3 years and 6 months' imprisonment imposed in the District Court was 'enough' to reflect the criminality of all the offending.[43]
[43] Ts 8, 12.
The appellant also referred to O'Byrne v Whitney for comparison, submitting that the outcome in that case demonstrates that the aggregate sentence in this case was disproportionate to the overall offending. The comparison is inapt. First, the authorities are clear that there is no single correct sentence for any particular offending. The discretionary nature of sentencing permits for different conclusions to be arrived at, within reasonable bounds, as to the appropriate sentence in any particular case. Secondly, and following from the first point, the fact that an offender's appeal against sentence is dismissed (as in O'Byrne v Whitney) does not mean that the sentence that is thereby affirmed is to be regarded as the single correct sentence for the circumstances of the case. In any event, it does not set a boundary for what is an appropriate sentence in another case. Thirdly, there were differences between the appellant and the offender in O'Byrne v Whitney, in terms of age and antecedents, and in the nature of the offending, so that it is not possible to make any meaningful comparison that would enable a reasonable assessment of whether the aggregate sentence in the present case was unreasonable and plainly unjust. More is required than simply pointing to some similarities in the offending and the imposition of a lesser sentence. [44]
[44] Sartori v The State of Western Australia [2014] WASCA 98 [30].
Having regard to the factors I have set out in [69] above, I am of the opinion that it was open to the magistrate to impose a cumulative sentence, in particular for the aggravated reckless driving. Moreover, I am satisfied that, having regard to the seriousness of that offence, it called for separate and distinct punishment by way of a cumulative sentence. In my opinion, it could not be said on any reasonable basis that the aggregate sentence of 4 years and 1 month's imprisonment was disproportionate to the totality of the appellant's offending on 7 May 2017. As in Alford v The State of Western Australia, the present case is one where to impose totally concurrent sentences would have resulted in a total effective sentence that did not adequately reflect the total criminality involved in the offences.
In my opinion, there was no reasonable prospect of ground 1 succeeding, and leave should be refused.
Whether the sentence breached the second limb of the totality principle
The second limb of the totality principle requires that, in determining whether sentences should be served cumulatively or concurrently, the court should avoid an aggregate sentence that is 'crushing'. A sentence is 'crushing' if it would deprive an offender of a reasonable prospect of a useful life after he has served his term of imprisonment.[45] The second limb is often dealt with in cases involving offenders who are of advanced age, where the sentence imposed represents a substantial portion of what is likely to remain of their life.[46] However, the second limb is not restricted to consideration of a person's age, because the test is sensitive to any matter which would affect the consideration of a 'useful life after release'. I would also accept the appellant's argument that the offending for which an offender has been sentenced could be relevant in the consideration of whether the sentence imposed is a 'crushing' sentence.
[45] Roffey v The State of Western Australia [2007] WASCA 246 [25].
[46] HFM v The State of Western Australia [2012] WASCA 217 [51].
Counsel for the appellant argued that the addition of 7 months' imprisonment to the sentence of 3 years and 6 months would increase the burden of the sentence exponentially.[47] As I mentioned earlier, the severity of a sentence can increase exponentially in relation to the length of the term.[48] In other words, where a person is already serving a relatively long sentence, any additional term is likely to weigh more heavily than the length of that term might otherwise suggest. However, the potential of that phenomenon must still be related back to the issue under the second limb of the totality principle. In my view, it could not reasonably be suggested that an increase of the sentence imposed in the District Court by 7 months would add to the severity of the sentence the appellant was already serving to such an extent as to result in a crushing sentence.
[47] Ts 15.
[48] Clinch v The Queen (1994) 72 A Crim R 301, 306 (Malcolm CJ); Jarvis v The Queen, 207 (Ipp J), 213 (Murray J); R v MAK, 164 [16].
Further, the impact contemplated by the second limb of the totality principle is not determined by the appellant's feelings or attitude towards his term of imprisonment; it is the destruction of a reasonable expectation of a useful life after release that is contemplated.
The appellant was 49 years old at the time of the sentencing. He does not suffer from any serious health issues. If he is not released on parole, he will finish serving the District Court sentence in November 2020, when he will be 52.[49] When the appellant finishes serving the cumulative sentence of 7 months' imprisonment, he will still be 52. There is no reasonable basis for concluding that the addition of 7 months' imprisonment upon a sentence of 3 years and 6 months would deprive the accused of a reasonable expectation of a useful life after release. That is true whether the appellant is released on parole or required to serve the full term.
[49] Ts 27.
Nor, in my opinion, could it be submitted sensibly that the appellant has any reasonable basis to feel aggrieved about the imposition of the cumulative sentence, having regard to the offending for which he was sentenced.
In my opinion, ground 2 did not have any reasonable prospect of success. Therefore leave must be refused.
Conclusion
I have concluded that neither ground 1 or 2 of the appeal had any reasonable prospect of succeeding. In those circumstances, it is not in the interests of justice to grant the extension of time, particularly in the absence of a satisfactory explanation for the delay. Therefore, I would dismiss the application for an extension of time.
I refuse leave on the grounds of appeal. The appeal is therefore dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Fiannaca7 FEBRUARY 2019
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