Penny v The State of Western Australia - [2006] WASCA 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PENNY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 249

CORAM: ROBERTS-SMITH JA
McLURE JA
BUSS JA

HEARD: 3 AUGUST 2006

DELIVERED : 23 NOVEMBER 2006

FILE NO/S: CACR 222 of 2005

BETWEEN: DONALD MARCUS PENNY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GROVES DCJ
File No  :IND 1267 of 2004, IND 633 of 2005, IND 1184 of 2005, IND 1266 of 2005

Catchwords:

Appeal - Criminal law and procedure - Sentence - 10 years' imprisonment - Aggregation of sentences for multiple offences - Totality principle - Whether aggregate sentence disproportionate to overall offending - Whether manifestly excessive - Whether crushing

Legislation:

Nil

Result:

Appeal allowed
Sentence set aside
Aggregate sentence of 8 years' imprisonment substituted
Appellant eligible for parole

Category: D

Representation:

Counsel:

Appellant: Mr M J Aulfrey
Respondent: Mr D Dempster

Solicitors:

Appellant: Ian Hope
Respondent: State Director of Public Prosecutions

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

Cranssen v The King (1936) 55 CLR 509
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen (2004) 78 ALJR 616
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Woods v The Queen (1994) 14 WAR 341
Yates v The Queen [1985] VR 41

Case(s) also cited:

Hart v The Queen [2003] WASCA 265
Herbert v The Queen (2003) 27 WAR 330
Magee v The Queen [1980] WAR 117
Markarian v The Queen (2005) 79 ALJR 1048
Thomson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973

ROBERTS-SMITH JA: On 28 October 2005 the appellant was sentenced by Groves DCJ in the District Court on multiple charges. These were:

Charge:

Term of Imprisonment

Indictment 1267 of 2004

Attempted aggravated burglary

12 months cumulative

Indictment 633 of 2005

Stealing motor vehicle and driving recklessly

3 years cumulative

Indictment 1184 of 2005

Stealing motor vehicle and driving recklessly

3 years 6 months cumulative

Indictment 1266 of 2005

Aggravated burglary (count 1)

Aggravated burglary (count 2)

Aggravated burglary (count 3)

Aggravated burglary (count 4)

30 months concurrent

30 months cumulative

30 months concurrent

18 months concurrent

Section 32 notice

Burglary (Charge No 04/41052)

Burglary (Charge No 04/4658)

Stealing (Charge No 04/4659)

Failing to stop (Charge No 05/1685)

Failing to stop (Charge No 05/27755)

Reckless driving (Charge No 05/1686)

Reckless driving (Charge No 05/27758)

Driving without licence (Charge No 05/1687)

Driving without licence (Charge No 05/27756)

Possession of cannabis (Charge No 05/1688)

Possession of cannabis (Charge No 05/27757)

Possession of methylamphetamine (Charge No 05/1689)

Breach of bail

12 months concurrent

6 months concurrent

$300 fine

12 months concurrent

9 months concurrent

12 months concurrent

6 months concurrent

Re‑sentencing on breach of CSO

Breach of bail (Charge No 04/41053)

Unlawful possession (Charge No 04/33340)

Possession of cannabis (Charge No 04/41054)

Possession of methylamphetamine (Charge No 04/41055)

3 months concurrent

The aggregate sentence was accordingly 10 years' imprisonment. His Honour ordered that the appellant be eligible for parole. On 23 November 2005, the appellant filed an application for leave to appeal against sentence.
The Appellant's Case was received on 19 December 2005. On 23 January 2006, Pullin JA extended time within which to appeal and granted leave on the following single ground:
"The learned Sentencing Judge erred in law by failing to correctly apply the totality principle by ordering an insufficient reduction of the sentence for totality when all the circumstances and sentences dictated that a lesser term ought to have been imposed."
No complaint is made of the individual sentences imposed in respect of the appellant's convictions.
The aggregate sentence of 10 years' imprisonment equates, prior to the transitional provisions, to one of 15 years' imprisonment. It is a severe sentence. In order to determine whether it is too severe it is necessary to have regard to the circumstances of the relevant offences and to the personal circumstances of the appellant.
The details of the offences were, first, on Indictment No 1267 of 2004, that on 7 March 2004 at Northbridge, the appellant attempted to gain entry to the place of another, without his consent, with intent to commit an offence therein. The offence was committed in circumstances of aggravation, namely that he knew or ought to have known that there was another person in that place and that place was ordinarily used for human habitation. The appellant pleaded not guilty. He was found guilty of that charge after trial by jury. The facts of that offence, as outlined by the sentencing Judge, were that on the evening of 7 March 2004 the appellant was in the front yard of the complainant's premises. There he attempted to gain entry by throwing a ceramic object at a side window to the door, breaking or causing damage to that window. The noise alerted the occupant and he came towards the door, turned on the light and saw the appellant jumping the fence and leaving the premises. The appellant was then chased down by police officers.
The appellant pleaded guilty to all other charges in respect of which he was sentenced. There are three counts of aggravated burglary and one count of burglary on a place ordinarily used for human habitation (Indictment No 1266 of 2005). There was one charge of stealing a motor vehicle and driving recklessly (Indictment No 633 of 2005). On Indictment No 1184 of 2005, he was charged with stealing a motor vehicle and driving recklessly.
The facts of those charges, as outlined to the sentencing Judge by the State prosecutor were undisputed. The offences were all committed while the appellant was on bail pending trial for the charge the subject of Indictment No 1267 of 2004.
In relation to count 1 on Indictment No 1266 of 2004, the facts are that, between 7 pm on 29 January and 12.30 am on 30 January 2005 the appellant, in company with another, went to the complainant's home address in Attadale. The appellant jumped onto the fence from a vacant block located next to the complainant's house and climbed to the second storey where he removed a flyscreen from a bedroom window and gained entry. He stole a number of items from the bedrooms and living room: a ladies black leather handbag; car keys; miscellaneous items including cash, credit cards, a set of reading glasses, a digital camera and a mobile phone and various other items including a diary, some lipstick, another purse and more credit cards. The total value of property stolen was $2620. The appellant then tied back the curtain to the front living room and managed to push out the flyscreen, leaving the house through the open window. The complainant at the time was downstairs on the patio with friends as the incident was occurring.
Count 2 on that indictment occurred on the same day around 1 am. The appellant, in company with another, went to the second complainant's address in Applecross. He gained entry to the premises through an unlocked laundry door and went to the bedroom where he stole jewellery items. He also stole a digital camera from a Mercedes vehicle which was located in the garage of the complainant's house. The items which were stolen from that particular burglary were: a gold chain necklace; a gold chain bracelet; a TAG Heuer wristwatch and two Tissot wristwatches. The total value of property stolen was $4700 - of that $1450 was recovered when the appellant was later apprehended and some of the jewellery and the digital camera were located in a vehicle which the appellant had stolen from the address of the complainant on count 3.
Turning to count 3, later that same morning the appellant, in company with another, went to the third complainant's home address at a unit in Applecross. The appellant forced the lock of the lounge room sliding door whilst the complainant was asleep on the couch. He stole a laptop computer, handbag and car keys to the complainant's Toyota Corolla (the vehicle to which the keys belonged was the subject of Indictment No 633 of 2005). The total property stolen was $5875 (excluding the car) - of that, $1800 was later recovered.
The final count of aggravated burglary took place later that same morning at 8 am on 30 January 2005. The appellant, in company with another, went to the fourth complainant's home in Bull Creek. The appellant jumped the side brick wall of the complainant's house and entered via the rear sliding door. He rummaged through the house, stealing various items, including jewellery. The complainant was in the front yard at the time of the offence. Some of the complainant's jewellery was located on the appellant when he was later apprehended. Although the total value of the property was not quantified, items stolen included: a gold wedding ring with a stone; some credit cards; a pearl brooch; a gold necklace; miscellaneous items such as a Medicare card and a driver's licence; a crystal bracelet; a Seiko watch and another necklace. Only some of these items were recovered.
Indictment No 633 of 2005 concerned the car to which the keys stolen on Indictment No 1266 of 2005 - count 3, belonged. The appellant, in company with another, went to the complainant's vehicle which was parked outside her unit in the parking bay. They entered the vehicle with the car keys which they had stolen and drove off without the complainant's permission.
At about 10.05 am on Sunday, 30 January 2005 the appellant was driving the vehicle in a southerly direction on the north-bound lanes whilst on the Kwinana Freeway. Police observed the vehicle swerving in front of traffic and then continue to drive the wrong way down the emergency lane. At about 10.07 am police followed the car in pursuit in a northerly direction on the north‑bound lanes of the freeway. They observed the complainant driving at approximately 160 kms per hour and swerving in and out of traffic before crashing into the side of the road, damaging the wheels of the vehicle. The appellant ran from the vehicle and was apprehended by police a short distance away. The damage to the vehicle totalled at $17,121.
When he was apprehended on 30 January 2005 after this motor vehicle incident, he was arrested, charged and again bailed.
The facts of the next incident, the stealing of a motor vehicle on 20 May 2005 (Indictment No 1184 of 2005), are that at about 11.30 pm on Saturday, 14 May 2005 the complainant observed two persons gain access to his house in Warnbro. The keys to a Nissan Skyline motor vehicle were stolen. Six days later at about 10.47 pm on Friday, 20 May police observed the complainant's motor vehicle on Kelvin Road in Maddington. They activated their emergency lights and siren but the vehicle, driven by the appellant, failed to stop. The police pursued the vehicle through several suburbs before it slowed as a result of a tyre deflation device at Royal Street in Kenwick. However, the appellant continued to drive the vehicle along the Kenwick link and onto Albany Highway travelling in a southerly direction. He then drove through the car park of McDonalds in Maddington and back on to Albany Highway, before turning into and colliding with a marked police vehicle - this caused the car to become stationary. The appellant got out of the car by the driver's door and attempted to flee, but was caught by police a short time later.
During the pursuit the appellant drove the vehicle at speeds of 140 kms per hour and crossed to the wrong side of the road including the Roe Highway. Oncoming traffic was forced to take evasive action to avoid the appellant's vehicle. The appellant also contravened several red traffic control signals in his attempts to evade police.
He was then taken to the Cannington police station where he participated in a video record of interview ("VROI"), although he was reluctant to discuss the incident. He made some admissions that he was the driver of the vehicle and that he tried to evade police and that his manner of driving was dangerous, but refused to comment when questioned about how he came into possession of the Nissan Skyline. He denied stealing the motor vehicle in the first place.
Turning to the s 32 matters, there were 13 in total, other than the breaches of conditional release orders. The facts of the first count of burglary, Charge No 04/41052, are that at about 11.15 pm on Friday, 23 January 2004 the appellant went to the complainant's home address in Maddington. There he entered the premises through an unlocked and ajar window, and stole a mobile phone, car keys and wallet containing approximately $200 cash, bankcards and other personal papers from a table directly below the window (the property belonged to a friend of the complainant's who was visiting at the time, and had a total value of $400). The appellant left after being disturbed by the complainant. A subsequent police examination of the crime scene located a mark on the inside window ledge of the vehicle which was forensically identified to match the fingerprints of the appellant. Numerous attempts were made to interview the appellant but he could not be located; an warrant was therefore issued and he was subsequently arrested.
Charges 05/4658 and 05/4659 arise from the same facts. About 1 pm on Wednesday, 13 October 2004 the complainant was doing some gardening in the front of her premises in Morley. Between 1 pm and 1.30 pm that day, the appellant and his co-offenders went to the rear of her premises and removed a security screen from the kitchen window and entered. Once inside, the appellant rummaged through a number of drawers and cupboards before stealing the complainant's handbag which contained a purse and $500 cash. The appellant and his co‑offenders then left the premises via the kitchen window. The matter was reported to police and forensic officers conducted an examination of the scene, locating a bloodstain on the complainant's quilt cover in the main bedroom. Analysis of this blood revealed it matched the offender's DNA.
On 24 February 2005 detectives located the appellant (at that time he was again in custody) and he participated in a VROI, during which he stated he couldn't recall the incident but conceded that if his blood was present, he must have been involved in the offence.
The failing to stop charge (Charge No 05/1685 on the s 32 notice) followed from the stealing of a motor vehicle on Indictment No 633 of 2005, as did the reckless driving offence (Charge No 05/1686) and the driving without a motor driver's licence (Charge No 05/1687).
Charge No 05/1688, the possession of cannabis and Charge No 05/1689, the possession of methylamphetamine both arise from the arrest of the appellant on 30 January 2005. 0.26 grams of cannabis was located in the coin tray by the steering wheel of the vehicle and similarly a small clip-seal bag containing traces of amphetamine was located in a backpack behind the front passenger seat of the vehicle. The appellant was also searched and another small clip-seal bag was located in the front left pocket of his shorts - when questioned he stated that the bags contained speed and it was for his personal use.
All the remainder of the offences - Charge No 05/27754, the breach of bail; Charge No 05/27755, the fail to stop; Charge No 05/27758, the reckless driving; Charge No 5/27756, the driving whilst disentitled and Charge No 05/27757, the possession of cannabis - arose on the same date as Indictment No 1184 of 2005, on 20 May 2005. The breach of bail occurred when the appellant failed to appear on 2 May. The appellant was then charged with that offence on 20 May when he was arrested - the actual breach though was on 2 May when he failed to appear on other matters. When he was searched on 20 May, the appellant had on him 3 grams of cannabis.
I move to the breaches of the community based order. On 13 September 2004 the appellant was put on a 9-month community based order in relation to a number of offences. The State prosecutor told the court that the record appeared to differ somewhat to the breach notice in that the offences for which he was placed on the order on that date, as the record indicates, were one count of breach of bail (Charge No 04/41053) and two counts of possession of a prohibited drug (Charge Nos 04/41054 and 04/41055). The penalty for the count of unlawful possession (Charge No 04/33340), also recorded in the record as being a penalty of a 9‑month community based order, seemed to have been imposed on 5 November 2004, as opposed to the same date as the previous. That was what the record indicated, although the breach notice seemed to indicate that that 9‑month community based order was actually imposed on 13 September. Irrespective of that, all four CBOs were breached for non-compliance.
All the offences which were committed from 30 January 2005 were committed during the life of the community based order. However, the appellant was breached for non-compliance on 13 October 2004 so technically the community based order was not enforced because it had already been breached - that is, it was current but breached.
The details of the breach of bail are that on 5 August 2004 the appellant was released on bail from the Perth Court of Petty Sessions. A bail undertaking was signed and he was to appear in the Perth Court of Petty Sessions at 9.30 am on Thursday 19 August 2004. He failed to appear on that date as per his bail undertaking requirements and was later arrested on 12 August 2004, in relation to another matter. The possession of cannabis occurred on 12 September 2004. The appellant was in a rear yard of 53 Chapman Road in Bentley. Police were called to the address regarding another matter and whilst inquiries were being conducted, the appellant was found in possession of 3 grams of cannabis. On the same date and at the same place he was also found in possession of two small clip-seal bags, each bag containing less than 1 gram of amphetamine.
Finally, the charge of unlawful possession. On 21 July 2004 the appellant was at McDonalds in Forrest Chase, Wellington Street, when police from the City Support Unit observed the appellant exchange an Ericsson mobile phone with a 13‑year‑old boy. He also exchanged SIM cards from one phone to another. Police attended a short time later and found the appellant in possession of the Ericsson mobile phone. He stated that his cousin had given him the phone and offered to sell the phone for $20 - he was arrested and charged with the offence of unlawful possession.
At sentencing, the learned sentencing Judge rewarded the appellant's plea of guilty in relation to all the charges apart from that on Indictment No 1267 of 2004, recognising that he had entered the pleas very early on, some on the fast‑track system and others at an early opportunity, and that he was accordingly entitled to be given a discount on sentence for those matters (t/s 189). He said that the appellant's plea of guilty at an early stage to those offences also indicated some remorse for the offending conduct. I note though that the appellant was caught red‑handed following many of the offences – in actual possession of the property stolen from the burglaries and the drugs, and chased driving the stolen vehicles. Also, he denied his guilt in one of the VROI (only acknowledging his guilt at a later stage) and only acknowledged guilt to other charges in a separate interview because of the existence of DNA evidence against him on those charges. On all the charges the case against the appellant was overwhelming.

The offending covered a period of almost 18 months. The first offences were in January 2004. There were further offences in March, July, August, September and October of 2004 and then again on 29 and 30 January 2005. Immediately following that offending the appellant was taken into custody and remained in custody until 18 April when he was released on home detention bail. He did not report to community justice services as he was required to and he was accordingly breached for failing to do so. The last of the offences was committed on 20 May 2005.
Groves DCJ noted the seriousness of the offending, with reference to the maximum statutory penalties prescribed to the offences committed. On the charges of aggravated burglary a sentence of up to 20 years' imprisonment might be imposed, for the attempted aggravated burglary, a sentence of up to 10 years' imprisonment, and for the offences of stealing a motor vehicle and driving recklessly, sentences of up to 8 years' imprisonment may be imposed.
In relation to these penalties he said (AB 56 ‑ 58):
"That gives an indication as to how serious these offences are regarded by the parliament of Western Australia representing the whole of the community of Western Australia. The offences of burglary, whether in circumstances of aggravation or not, and of stealing motor vehicles of course, as I have indicated, are serious offences. Members of the public are, and are becoming even more, concerned at the prospect of their premises being broken into, either when they are there or when they may not be there, and also concerned so far as their motor vehicles being stolen.
These types of offences have become increasingly prevalent in recent years and the Court of Appeal, which is the highest court in this state, has said that judges must firm up the sentences they impose for these particular crimes. You must understand that the offence of aggravated burglary, particularly in circumstances such as those here, where there were persons present in the residences when you broke into them. It's no longer regarded as simply an offence against property.
Such offences have the potential to have a marked adverse affect on the victim, giving rise to insecurity and fear of the offence being repeated. The invasion of the privacy of the victim's home must be taken into account, together with the consequential financial loss to the victim of any property that might be stolen. Similarly, the cost to the community in terms of ever increasing motor vehicle insurance premiums, and the trauma and expense and inconvenience suffered by the owners of vehicles which have been stolen, are matters which the courts simply cannot disregard.
This type of conduct, no matter what circumstances the offences were committed in, cannot be condoned and the courts must impose sentences which reflect the community's concern and which are condign punishment which may have the purpose of deterring you from offending in this way in the future and deterring like-minded persons who may offend in the future from offending; that, is that not only must there be punishment so far as you are concerned for your offending, there must also be seen to be retribution for the victims of your offences and there must also be deterrence, both to you and to persons who might offend in this way in the future."
His Honour considered that the appellant's offending was aggravated by the fact that many of the offences were committed whilst he was on a community based order. He had been given the opportunity by the court to address his offending behaviour, but had breached that order immediately and subsequently embarked upon another "crime spree" (AB 58). That took his offences to a higher level.
Furthermore, the offences on Indictment No 1184 of 2005, were committed not only whilst he was on the community based order, but also while he was on bail in respect of two other charges. The burglary and aggravated burglaries of 30 January (Indictment No 1266 of 2005) were also committed while the appellant was on bail and on the community based order. The sentencing Judge said he took account of those breaches as demonstrating that the offences on which the appellant was being sentenced were not out of character and were "yet another example of [the appellant's] readiness to break the law in order to obtain money" and to support his drug habit.
His Honour had before him a pre‑sentence report (dated 6 September 2005) and a psychological report (dated 12 September 2005).
The appellant was 26 years old at the time of sentencing.
Groves DCJ acknowledged that the offending behaviour followed upon the breakdown of the appellant's relationship with his partner of some years and when she had become pregnant and then saw fit to have an abortion, unbeknown to him. This appeared to have upset him greatly, affecting his behaviour and leading to the breakdown of that relationship. The appellant then had to move back to live with his family and returned to associate with a peer group that was apparently engaged with drugs. This appeared to have led to the appellant being able to access drugs and that in turn then led to this offending behaviour over the period of 18 months.
The pre‑sentence report noted the appellant acknowledged that his offending behaviour was linked to substance use and that he claimed he does not want to use drugs when released and would be willing to participate in substance use counselling and urinalysis to monitor his abstinence.
His Honour acknowledged the appellant had successfully completed a substance abuse programme whilst serving a prior sentence and had also successfully completed a previous period of parole (I note that was from 8 September 2000 to 8 September 2002). However, his Honour added that given the appellant's subsequent reversion to substance abuse, the message "was either forgotten or simply ignored" (AB 62).
The sentencing Judge quoted a passage from the psychological report in which it was opined that due to the entrenched nature of the appellant's criminal record, his risk of re‑offending had to be assessed as high, although on a positive note he had also demonstrated a capacity to lead a relatively law‑abiding lifestyle. He then set out the final paragraph of the report in which he said there might be discerned "a ray of hope" that in the future the appellant may, if he was able to address his substance abuse problem, go down a path which does not involve breaching the law and committing offences.
His Honour referred to the submissions made on behalf of the appellant that he should have regard to the period since his release as a positive period in which he had been substantially law‑abiding. As to that, his Honour said the record indicated the appellant had not been law‑abiding during that period (because he had committed traffic‑related offences) and to the extent he had been, it was substantially during his period on parole and the fact that other offences had been committed belied the suggestion he was law‑abiding. He also noted that the psychological report had indicated the appellant had admitted continuing to use cannabis since his release, which too was an offence, but nevertheless, he completed his parole successfully.
The sentencing Judge turned specifically to the appellant's criminal history. He said that on his calculations the appellant had some 50 convictions for breaking and entering or burglary, although only three of those were as an adult since 1997. He took into account in the appellant's favour, that he had no convictions for burglary since June 1999. After mentioning some of the other convictions listed, his Honour observed that he came before the court "with an appalling history of offending". He added (AB 64):
"Clearly, your record indicates repeated offending of a similar type to those charges before me now. It suggests that you are a recidivist and that the opportunity or the penalties which have been imposed previously and the opportunities which you have had to address that behaviour has all come to nothing; that is, it has been of no effect. It hasn't curbed your offending behaviour. It hasn't brought home to you the realisation that if you continue to offend, then necessarily you will be dealt with harshly by the courts."
His Honour then directed his remarks to the individual offences before him, correctly appreciating the seriousness of them, especially those which involved putting the lives of other citizens at risk. He imposed sentences for the individual offences, and then concluded (AB 68 ‑ 69):
"The total sentences of imprisonment for those charges amount of [sic to] 25 years' imprisonment. Now, obviously if those terms of imprisonment were made cumulative upon one another, the aggregate amount would be excessive and out of proportion to your criminality as a whole. There are those in the community who would say that having regard to these offences, the nature of the offences, the seriousness of the offences and the fact that the lives of others were put at risk, that that would be an appropriate sentence.
I don't hold for that view. The totality of the sentence which I impose must not be so crushing as to leave you with no hope for the future, that upon your ultimate release from prison, you will be able to lead a law‑abiding life. Therefore it is necessary that I consider cumulation and concurrence of offences with a view to arriving at an appropriate sentence, having regard to the totality of the criminality of this offending. In the end result I have come to the view that a total sentence of 10 years' imprisonment is appropriate …"
The law is firm that this Court is not entitled to set aside a sentence merely because the members of it would have exercised their sentencing discretion differently from the sentencing Judge (Lowndes v The Queen (1999) 195 CLR 665). What must be shown is either some specific material error of fact or law, or alternatively, that the sentence imposed is so manifestly inadequate or excessive in the circumstances of the case as to necessarily lead to the conclusion that the sentencing discretion must have miscarried in some identified way (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499).
There is no complaint here about the individual sentences. Nor is it suggested his Honour made any identifiable error of fact or law. The appeal is put on the basis the aggregate sentence is manifestly excessive.
The "preferable course" (Johnson v The Queen (2004) 78 ALJR 616, [26]) when sentencing for multiple offences, remains that articulated in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, 624. That is to fix an appropriate sentence for each offence, then consider questions of cumulation or concurrence and finally the question of totality. That last step requires a "last look" to ensure the aggregate period of imprisonment bears a proper relationship to the overall criminality reflected in the combination of offences, viewed in their entirety and having regard to all the circumstances, including those of the offender (Woods v The Queen (1994) 14 WAR 341, 352 per Anderson J). It is to ensure the aggregation of sentences, otherwise appropriate for each offence, is a "just and appropriate" measure of the total criminality involved (Postiglione v The Queen (1997) 189 CLR 295, 307 ‑ 308, per McHugh J).
There are two possible limbs by which manifest excess in an aggregate sentence for multiple offences may be demonstrated. The first is simply disproportion with the overall criminality involved; the second is that the aggregate sentence may be so long as to be "crushing" (Johnson (supra), [21] ‑ [22]). An aggregate sentence may be inappropriately long even if the total sentence cannot be described as "crushing" (Jarvis v The Queen (1993) 20 WAR 201 per Anderson J at 216). A "crushing" sentence is one which leaves the offender with no hope for the future; or would provoke a feeling of helplessness in the offender if and when they are released; or destroys a reasonable expectation of useful life after release; or is not in keeping with the offender's record and prospects (Yates v The Queen [1985] VR 41, 48 per Young CJ, Starke, Crockett and Hempel JJ; Jarvis (supra), per Ipp J at 205).
The present appeal is put on the basis of both limbs of the totality principle. It is submitted that the total sentence imposed is "crushing" and that alternatively, if that not be so, it is disproportionate to the appellant's overall criminality as reflected in the combination of offences in respect of which the sentences were imposed. I am persuaded that the first limb is made out.
There can be no doubt the appellant has an appalling record of criminal convictions. It commenced in 1989 when he was 10 years old. There can be no doubt the more serious of the subject offences were very serious offences indeed. They reveal a high degree of criminality. Nonetheless, whether a sentence is "crushing" turns on the effect of a sentence of a particular term on the particular offender. In the case of this appellant, there are some demonstrated features which strongly indicate that there is some realistic hope for his eventual rehabilitation; yet which a sentence of this length would most likely defeat.
The pre‑sentence report states that the appellant felt he had "gone off the rails" since his relationship ended and used illicit substances to deal with his personal issues. The author notes that his court history reflects that, with a break in offending between 1999 and 2003 and the offences committed after that being predominantly traffic‑related. The psychologist was of a similar view. She wrote:
"Mr Penny expressed disappointment in himself for having relapsed back into a cycle of offending, stating that after being released from prison in 2000 he had made a concerted effort to leave his criminal lifestyle behind him, having tired of stealing and committing crime. Reviewing Mr Penny's criminal record it would appear his comments have some validity in as much as there appears to have been a notable decline in the frequency and severity of offending since his release from prison in 2000 until late 2004. While convictions are noted in 2002, 2003 and 2004 these are predominantly for traffic related offences for which he received fines. When compared to his prior record of offending this highlights a significant shift in attitude and behaviour. However, ill equipped to cope with the breakdown of his first serious relationship in late 2004 Mr Penny unfortunately turned to amphetamines and crime and this compromised the positive gains he had made. Mr Penny impressed as having a reasonable degree of insight about his offending behaviour and indicated that his initial foray into crime as a juvenile was to achieve acceptance amongst his peer group and that he readily engaged in criminal activities as a way of fitting in. However, once his relationship ended Mr Penny found himself lonely and isolated and in all likelihood gravitated back to his friends for support but this bought [sic] with it exposure to drugs and crime which he readily fell back into.
Due to the entrenched nature of Mr Penny's criminal record, one must assess his risk of reoffending as high, particularly when faced with situations he finds distressing as the criminal lifestyle is one which presents a degree of familiarity and comfort for Mr Penny. Criminal behaviour has been a constant in his life since a young age and therefore it will take some effort to redress. However, on a positive note Mr Penny has also demonstrated a capacity to lead a relatively law abiding lifestyle when circumstances in his life are going well. It would be beneficial for Mr Penny to have counseling [sic] to address his coping style with a view to developing prosocial ways of dealing with emotional distress and managing daily stressors when he feels overwhelmed rather than resorting to drug use and crime." (Emphasis added)
The aggregate sentence of 10 years' imprisonment equates to a pre‑transitional sentence of 15 years' imprisonment. That being the actual (equivalent) aggregate, it must necessarily have been reached after appropriate reductions for his pleas of guilty and any other mitigating factors. That suggests that without any such reductions, the pre‑transitional sentence would have been around 20 years' imprisonment. I would have thought that the combination of offending (excluding mitigating factors) appropriately called for a sentence of around 15 years' imprisonment, which the pleas of guilty and such other mitigating factors as there were, would have reduced to 12 years. The statutory one‑third reduction would produce a current term of 8 years' imprisonment.
Strong punishment is required for specific and general deterrence and to meet the other objectives of sentencing. A period of 8 years' imprisonment under the current sentencing regime is still a substantial sentence. In my opinion, no sentencing purpose would be served by an additional 2 year period which would not be served by one of 8 years' imprisonment. That would be sufficient to achieve the recognised sentencing objectives, including denunciation, punishment, retribution and deterrence.
The appellant has demonstrated insight, a genuine desire and determination to rehabilitate himself and lead a productive and non‑offending life. He achieved a notable degree of practical success in that over four years. He will have the opportunity, whilst in prison and on parole, to give effect to his expressed desire and determination to rehabilitate. It would not be in the interests of the community to extinguish the flickering flame of his desire to cease offending and lead a useful life.
The appellant is now 27 years old. He would be 37 years old on the expiration of his current aggregate 10 year sentence, or 35 years old after an 8 year aggregate. If he commits further offences on his release, he would in either event be likely to spend most of the remainder of his life in prison.
In my view the aggregate sentence imposed by the sentencing Judge was, in the particular circumstances of this case and this offender, one which could properly be described as "crushing" and the exercise of his sentencing discretion accordingly miscarried.
I would allow the appeal, set aside the orders for cumulation and concurrence which resulted in the aggregate period of imprisonment being

10 years, and substitute instead orders that the sentences of 3 years on the offence on Indictment No 633 of 2005, 3 years 6 months on the offence on Indictment No 1184 of 2005 and 18 months on count 4 on Indictment No 1266 of 2005 be served cumulatively and the balance of the sentences be served concurrently. I would otherwise leave the sentences and orders stand.

The result would be that the appellant's overall term of imprisonment for the offences for which he was sentenced on 28 October 2005 would be 8 years. He will remain eligible for parole.
McLURE JA: I agree with Roberts‑Smith JA.
BUSS JA: I agree with Roberts‑Smith JA.