Seroka v The State of Western Australia - [2006] WASCA 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SEROKA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 284

CORAM: WHEELER JA
ROBERTS-SMITH JA
McLURE JA

HEARD: 23 AUGUST 2006

DELIVERED : 22 DECEMBER 2006

FILE NO/S: CACR 228 of 2005

BETWEEN: MARTIN PETER SEROKA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
File No  :IND BUN 24 of 2005

Catchwords:

Appeal - Criminal law and procedure - Sentence - Causing grievous bodily harm with intent - Deprivation of liberty - Assault occasioning bodily harm - Aggregate term of imprisonment 7 years 4 months - Principle of totality - Whether a "rule" that total effective sentence imposed for a series of offences should not exceed the maximum sentence which could have been imposed for the most serious individual offence in the series - Whether overall sentence manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Sentencing Act 1991 (Vic), s 16
Sentencing Act 1995 (WA), s 88

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr A L Troy

Solicitors:

Appellant: Michael Tudori
Respondent: State Director of Public Prosecutions

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

Bowman (1993) 69 A Crim R 530
Dickens v The Queen (2004) 147 A Crim R 343
Dixon v Scott [2002] WASCA 280
Dowson v Youlton [2001] WASCA 639
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v D(E) (1992) 16 BCAC 193
R v Holder [1983] 3 NSWLR 245
R v M (CA) (1996) 105 CCC (3d) 327
R v Mantini [1998] 3 VR 340
Vaitos (1981) 4 A Crim R 238
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Young [1973] Crim LR 585

Case(s) also cited:

Clinch (1994) 72 A Crim R 301
Griffiths v The Queen (1989) 167 CLR 372
Pieri v The Queen [2001] WASCA 357
R v Faithfull (2004) 142 A Crim R 554
R v Yates [1985] VR 41
Ruane (1979) 1 A Crim R 284
Samuels v Western Australia (2005) 30 WAR 473

WHEELER JA: I have the advantage of reading in draft the reasons for decision of Roberts‑Smith JA. I agree with them, save for one reservation. That reservation concerns his Honour's description of the total sentence as "very much towards the lower end of the range". Having regard to the savage nature of the two attacks, the premediation involved, and the flagrant disregard for the law demonstrated by the re‑assaulting of the complainant on his discharge from hospital, I am inclined to the view that the sentence may well be so lenient as to be inadequate. However, it is not necessary to finally determine that issue in this appeal.
ROBERTS-SMITH JA: The appellant in this appeal seeks recognition as a sentencing "rule" of the proposition that the total effective sentence of imprisonment imposed for a multiplicity of offences should not exceed the maximum sentence which could have been imposed for the most serious individual offence in the group.
It is contended that this "rule" is an aspect of the principle of totality.
The appellant's sole ground of appeal turns on this argument. The ground is:
"That by ordering that the sentences imposed in respect of counts 3 and 4 be served cumulatively upon the sentence imposed upon count 1, the learned sentencing Judge erred, by imposing a total effective sentence that infringed the totality principle of sentencing."
The appellant was acquitted of one charge but convicted after trial in the District Court at Perth of three offences. Count 1 was causing grievous bodily harm with intent; count 3 was deprivation of liberty; and count 4 was assault occasioning bodily harm. For those offences the appellant was sentenced to 4 years' imprisonment on count 1; 3 years 4 months' imprisonment on count 3; and 2 years' imprisonment on count 4. Eaton DCJ ordered that the sentences for counts 3 and 4 be served concurrently with each other but cumulatively upon the sentence for count 1. The total effective sentence was accordingly 7 years 4 months' imprisonment. His Honour backdated that to commence on 12 November 2004.
In 2003 and 2004, the appellant, his co‑accused McKay, and the complainant were involved in a project to manufacture methylamphetamine. The manufacturing process was conducted by the complainant and took place on a farm at Boyanup. McKay was considered by the court to be the "principal organiser". The laboratory

was raided by police, and the complainant was charged with manufacturing methylamphetamine. He was released on bail. The laboratory equipment was seized by police.

On 30 October 2004, McKay and the appellant confronted the complainant. They wanted to be compensated for the valuable property seized by police. They drove the complainant to a clearing in scrub where, without warning, he was hit on the head. He fell to the ground and was kicked by both men. Armed with a pick handle and a piece of wood respectively, McKay and the appellant attacked the complainant and caused him serious injury, including fractured limbs. The complainant later managed to escape and sought assistance from a person in a nearby house. Police were called and the complainant was flown by Royal Flying Doctor Service to Perth for surgical reduction and repair of the fractured limbs.
The complainant's injuries were serious and numerous. They included a compound fracture of the right ulna; a broken right femur; bruised kidneys and blood in his urine; bruising to the right and left flanks of his stomach and chest; and soft‑tissue injury and bruising to his mid and lower back.
The complainant was discharged from hospital in Perth on 5 November 2004 in plaster casts and a leg splint. He had an expected recovery time of 12 weeks.
The complainant arranged to travel to Bunbury with a female acquaintance. The appellant, McKay and a third co‑accused, Dipane, made inquiries and learned of the complainant's travel arrangements. The three of them intercepted the vehicle on its way to Bunbury and removed the injured complainant from the vehicle. They placed a shirt over the complainant's head and drove him to a vacant house in a Perth suburb where he was again threatened and assaulted. He was beaten by the appellant with knuckledusters; burnt on his feet by Dipane with a heated metal poker; had cigarettes stubbed out on his flesh; was spat on; and was restrained by being duct taped to a mattress in a bedroom.
During this period of detention the complainant was forced to sign a transfer of his vehicle registration to McKay.
The complainant was able to free himself when his attackers left the house for a short period of time. He made his way to a nearby house and sought help. Police were notified and the complainant was returned to hospital for treatment. His injuries on that occasion included burns to his right foot; a swollen lip, bruising and cigarette burns to his chest and right arm.
McKay and Dipane were also convicted after trial and were sentenced. Their sentences do not bear on this appeal.
In sentencing, his Honour made a number of findings, none of which are challenged in this appeal. They included that because of the appellant's sustained involvement, he must have had a vested interest in the enterprise that gave rise to the offences. He found the offences involved a strong element of premeditation. Counts 1 and 4 were particularly serious because of the brutality involved and the latter because of the barbaric behaviour meted out to the victim. His Honour said that the conduct of the appellant and his co‑offenders could only be described as both cruel and savage.
His Honour noted that the appellant came from a disrupted family, marred by his parents' sad and violent marriage. He referred to the fact that the appellant was then 33 years of age and in a de facto relationship, of which there was a 3‑year‑old child. In addition, there were two children of a prior relationship but with whom the appellant had no contact. He noted that the appellant's mother found him to be a devoted husband and father who was not by nature a violent or aggressive person, that he had completed an apprenticeship in boiler‑making and, until his arrest, was employed as a limestone blocker. The appellant's criminal history demonstrated involvement with cannabis in the early 1990s, but since then he had only one conviction in 2004, for wilful damage.
Finally, his Honour observed that the appellant could not be said to have youth on his side, nor was there any indication of remorse or contrition and mitigating factors were "few and far between" if not largely absent.
Mr Grace QC emphasised there is no attack on the individual sentences imposed by the sentencing Judge. The proposition ultimately is that the overall effective sentence of 7 years 4 months is "altogether too high for the level of overall criminality revealed by these [sic this] series of offences".
As I understand it, the argument advanced on behalf of the appellant is that although his Honour gave proper consideration to the principles which dictate whether sentences should be served concurrently or cumulatively, including the "one transaction rule", he failed to "step back and take a last look" to ensure the aggregate sentence was not disproportionate to the overall level of criminality represented by the combination of offences.
It is submitted that there is no indication his Honour took that last step, which it is said in any event is necessary in any instance in which a sentencing Judge is moving outside "the prima facie rule of concurrency which s 88 of the Sentencing Act implies".
Finally, it is submitted that his Honour failed to consider that limb of the totality principle which says that the total effective sentence of imprisonment imposed for a combination of offences should not exceed the maximum sentence which could have been imposed for the most serious individual offence in the combination (I shall refer to this as the maximum individual sentence limitation).
What is put about that is that the limiting sentence ought to have been that of 4 years' imprisonment imposed in respect of the assault with intent to do grievous bodily harm - and that aspect of the totality principle is breached here because the aggregate of 7 years 4 months is substantially greater than the 4 years.
I am compelled to say not only that I can see no justification for such a conclusion, but it seems to me to fly in the face of fundamental sentencing principle, which requires due proportionality between the offending and the punishment. Due proportionality requires adequate severity, just as much as the avoidance of excessive severity. The law would be brought into disrepute were it to allow those who might be minded to commit multiple offences to believe they will be given only a sentence appropriate to the most serious in the series and the others will attract no additional penalty (see, for example, Young [1973] Crim LR 585 and D A Thomas, "Principles of Sentencing" (2nd ed, London: Heinemann, 1979) page 55 fn 3). It would be wrong for the courts to foster any notion that after the first, or most serious, offence, "all the others are free"!
Section 88 of the Sentencing Act 1995 provides as follows:
"(1) An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
(2)An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).
(3)If at the time an offender is sentenced to a fixed term -
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that ‑
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly concurrently with the other fixed term.
(4)If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.
(5)An offender sentenced to a life term is to serve that term concurrently with any other term that he or she is serving or has yet to serve."
On the face of it, that section seems to me to give rise to no presumption that sentences must usually be ordered to be served concurrently. In terms, the section simply provides a default position, which is that unless an order for partial or full cumulation is made, all sentences of imprisonment imposed at the same time are to be served concurrently. However, as no authority was cited in support of the proposition, Mr Grace QC expressly said he did not need to rely upon it and no submissions were directed to it by either side, it is not necessary to deal with it further. The point should be left for determination when the Court has had the opportunity of hearing full submissions.
The appellant's primary submission is founded on remarks by Kirby J in stating his eighth proposition in his judgment in Postiglione v The Queen (1997) 189 CLR 295 at 340, where his Honour said:
"The totality principle has a dual aspect as explained recently in the Supreme Court of Canada (R v M (CA) (1996) 105 CCC (3d) 327 at 349. First, in the words of D A Thomas, Principles of Sentencing (2nd ed (1979), p 56 also cited with approval in Mill v The Queen (1988) 166 CLR 59 at 63):
'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 sentence is "just and appropriate".'
Lamer CJ in R v M (CA) ((1996) 105 CCC (3d) 327 at 349) expressed approval of this passage and gave his own explanation:
'The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.'
However, there is a second task for the totality principle to perform. This is that stated by Clayton Ruby in his Treatise on Sentencing [sic], also cited with approval by Lamer CJ (Ruby, Sentencing, 4th ed (1994), pp 44-45, cited in R v M (CA) (1996) 105 CCC (3d) 327 at 349‑350 [117] :
'The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects'." (My emphasis)
No other member of the Court in Postiglione mentioned the notion expressed in the words emphasised above.
There is nothing in the Sentencing Act 1995 (WA) which goes to this question.
The only statutory provision I have been able to find which recognises the maximum individual sentence limitation is s 74(5) of the Defence Force Discipline Act 1982 (Cth) ("DFDA"). The notes in Vol 1 of the "Discipline Law Manual" (ADF Publication 06.1.1, May 2006) give that subsection as authority for the statement (Vol 1, [11.8]) that:
"… where a [Service] tribunal orders that the punishment [of imprisonment] be served cumulatively the total period of imprisonment may not exceed the maximum period allowed for any offence of which the defendant has been convicted."
Section 74(5) DFDA provides that:
"A service tribunal or a reviewing authority that has revoked a suspension of a punishment on the recommendation of a service tribunal shall not order that prescribed punishments shall be cumulative if the effect of the order would be that the person convicted would be subject to punishment for a total period that exceeds the period of operation of the most severe punishment (being a punishment of the same kind as the first‑mentioned punishments) that the tribunal could impose on the person for the service offence, or any one of the service offences, of which the person has been convicted by the tribunal."
That this is not confined to the activation of suspended punishments is apparent from the Explanatory Memorandum to the Defence Force Discipline Bill 1982, [647], which states that the subsection provides that a service tribunal is not to order punishments to be cumulative if doing so would subject the offender to punishment for a period that exceeds the maximum punishment that it could impose for any of the offences of which they have been convicted. No further explanation is given.
That statutory provision seems to be quite unique. In any event it does not apply here and affords no guidance as to general sentencing principle.
I do not consider that R v M (CA) (1996) 105 CCC (3d) 327 is authority for the proposition for which it is cited by the appellant. In that case, the respondent pleaded guilty to numerous counts of sexual assault, incest, assault with a weapon and other lesser offences committed against his children over a number of years. None of the offences carried life imprisonment as a penalty, however one offence bore a maximum term of imprisonment of 14 years, six offences carried maximum terms of imprisonment of 10 years, and the remaining lesser offences carried maximum sentences of 5 years. The trial Judge sentenced the respondent to a cumulative (aggregate) sentence of 25 years, with individual sentences running both consecutively and concurrently. On appeal to the British Columbia Court of Appeal, this sentence was reduced to 18 years 8 months. Following a line of jurisprudence it had developed in recent years, the Court of Appeal concluded that where life imprisonment is not available as a penalty, the totality principle requires trial judges to limit fixed term cumulative sentences under the Canadian Criminal Code 1985, to a term of imprisonment of 20 years, absent special circumstances. The Crown appealed to the Supreme Court of Canada, where, in a judgment of the Court delivered by Lamer CJ, it was held that the Court of Appeal erred in reducing the respondent's sentence.
Lamer CJ said that there is no a priori ceiling on fixed term sentences under the Code. The Court of Appeal had reduced the respondent's sentence primarily as a result of a framework of sentencing principles that was incorrect in law, and also erred by engaging in an overly interventionist mode of appellate review of the fitness of sentence. Lamer CJ rejected the principal arguments in support of such a limit or ceiling, finding no evidence that Parliament intended to constrain a trial Judge's traditionally broad sentencing discretion in such a way. Rather, his Honour said (at [56]):
"... beyond setting statutory maximum and minimum sentences which reflect the relative severity of different offences, Parliament intended to vest trial judges with a wide ambit of authority to impose a sentence which is 'just and appropriate' under the circumstances and which adequately advances the core sentencing objectives of deterrence, denunciation, rehabilitation and the protection of society."

As noted by Kirby J in Postiglione (supra), Lamer CJ did cite the passage (above) from Clayton Ruby "Sentencing", 4th ed (1994) in the course of his discussion of the principle of totality. However, it is not apparent that Lamer CJ did in fact approve this statement, for two reasons. First, the notion that "a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved" is not supported by the final decision in the case, which restored the 25 year sentence imposed on the respondent at first instance, notwithstanding the maximum available term for the most serious of the offences was 14 years.
Second, Lamer CJ noted that the central argument in support of a 20 year ceiling rested on inferences drawn from parole eligibility provisions in the Code and the Corrections and Conditional Release Act, SC 1992 (Canada), which fixed a default 7 year limit on parole ineligibility. However, his Honour disapproved appellate decisions which also justified the qualified ceiling by reference to the totality principle (see eg, Lamer CJ at [50], citing the British Columbia Court of Appeal in R v D(E) (1992) 16 BCAC 193 at 203 ‑ 204). Specifically, he concluded (at [72]) that under the Criminal Code of Canada there was no a priori ceiling on fixed term sentences.
I do not think the decision of R v M (CA) can be said to support the view that the totality principle does not permit the imposition of an aggregate sentence which is "substantially above the normal level of a sentence for the most serious of the individual offences involved."
The statement in question is an extract from Ruby's, "Sentencing" (supra), a Canadian text. The author goes on to say (at 45):
"The first limb of the principle can be seen as an extension of the central idea of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation: DA Thomas, Principles of Sentencing, 2nd ed (London: Heinemann, 1979) pp 57 58.
In Wickwar [an] unreported decision reported by DA Thomas, Principles of Sentencing, ibid, a youthful offender received a penitentiary term for a very large number of offences. While no single sentence was 'other than exceedingly moderate for the offence for which it was imposed' the court concluded that it was not right that such a lengthy period of imprisonment should be imposed on a youthful offender on his first prison term (ibid, p 59). The first limb of the principle can also be seen in cases such as Makins (unreported, 3 November 1981 (NSCA)) where a sentence for four stolen credit card offences, one dangerous driving and one fraudulently impersonating another person resulted in a long sentence:
'This petty, incompetent, young "fraud artist" thus has received sentences totalling ten and one‑half years' imprisonment; many bank‑robbing multiple recidivists have received less.'
The level of sentence was improperly allowed to rise above that which would be appropriate for the kind of offences committed and the kind of offender who committed them."
The author cites no authority for what he describes as "the first limb of the principle" of totality. In my opinion, the two authorities then discussed do not go so far as to lay down a principle that "a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved" . They simply reflect the general totality principle that the aggregate sentence be a just and appropriate measure of the total criminality involved (as defined by McHugh J in Postiglione (supra) at 307). In any event, those two authorities were decided prior to R v M, in which the Supreme Court of Canada definitively endorsed the imposition of an aggregate sentence substantially above the maximum term available for the most serious of the individual offences in that case.
The only Australian decision to apply the maximum individual sentence limitation, of which I am aware, is Dixon v Scott [2002] WASCA 280, a single judge appeal heard by Barker J.
In that case, the appellant had pleaded guilty to one charge of burglary and committing an offence in a dwelling. The Magistrate (Ms Wager SM) imposed a sentence of 2 years' imprisonment with eligibility for parole, to be served cumulatively upon a total effective sentence of 18 months' imprisonment which the appellant was already serving (although her Honour appeared to have mistakenly concluded that this earlier sentence was one of 2 years). The earlier total effective sentence of 18 months' imprisonment had been imposed by her Honour in respect of three counts of burglary, one count of fraud, one count of breach of bail and two counts of driving under suspension.
In considering the question of totality, Barker J referred to Kirby J's explanation of the principle in Postiglione (supra). Having set out the extracts from Lamer CJ's judgment in R v M (supra) and Ruby's "Sentencing" (supra), his Honour said (at [51]):
"Certainly in a case such as this, where the aggregate sentence imposed by the learned Magistrate was thought by him [sic her] to be 4 years (in fact, 3½ years), it may be seen that such sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved. Not in the District Court, not before Ms Wager SM and not before the learned Magistrate was it ever thought that any one of the particular offences for which the appellant was sentenced merited a term of 4 years' imprisonment, or 3½ years' imprisonment. This is an additional reason why, in the circumstances of this case, the sentencing discretion should be considered to have miscarried."
Barker J went on to find that the Magistrate had erred in failing to form a concluded view as to what sentence was appropriate for the single offence she was called upon to sentence before addressing herself to what the "total criminality" of the appellant's conduct over the period of offending should reflect by way of imprisonment, thereby inverting the approach laid down in the Sentencing Act 1995 and confirmed by authorities such as Pearce v The Queen (1998) 194 CLR 610. His Honour distinguished Dowson v Youlton [2001] WASCA 639, which was submitted by the respondent to support the Magistrate's approach, on the basis that there on the second occasion the offender was being sentenced for some 42 offences. His Honour also found that the Magistrate had failed to discount the sentence on account of the appellant's guilty plea.
Insofar as the decision by Barker J depended upon the maximum individual sentence limitation, it was founded in turn upon the eighth principle articulated by Kirby J. As I have explained, that was drawn from the passage quoted from Ruby - but that is not supported by the authorities cited for it and it must be doubted in light of the subsequent decision of the Supreme Court of Canada in R v M (CA).
The maximum individual sentence limitation is recognised in Thomas (supra) at 56 ‑ 57. There the author states that the effect of the totality principle is to require a sentencer who has passed a series of sentences, each appropriate to the individual offence for which it is imposed and each properly made cumulative in accordance with sentencing principle, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". That articulation is in accord with the law in Australia (Postiglione v The Queen (supra) at 308; Mill v The Queen (1988) 166 CLR 59, 63; Jarvis v The Queen (1993) 20 WAR 201, 207; Herbert v The Queen (2003) 27 WAR 330).
At 57 (ibid) Thomas goes on to say:
"A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' (Raybould 1.6.70, 192/70) not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation."
The author suggests that many illustrations can be found of the Court reducing an aggregate sentence on the ground the total bears no relationship to the inherent gravity of the individual offences. However, the various cases the author presents as illustrations of the "first limb" are all explicable as examples simply of the proposition that the aggregate sentence must not be disproportionate to the totality of the criminal behaviour. None of them expressly limits the aggregate to the maximum punishment available for the single most serious offence, and nor is such a "rule" implicit or necessary to explain them. Furthermore, as the author acknowledges (58 ‑ 59):
"Precise formulation of the first limb of the totality principle presents difficulty, particularly as the Court has on occasion upheld consecutive sentences amounting to a total in excess of the statutory maximum for the individual offence concerned (See, for example, Knott 19.6.72, 5301/B/71 (consecutive sentences of nine months upheld for two offences of driving while disqualified, although maximum twelve months for single offence); Palmer 29.7.74, 670/C/74 (consecutive terms totalling four and a half years upheld on three counts of attempted incest, although maximum for single offence two years)."
Finally, in discussing possible qualifications to the totality principle itself, the author notes the case of Cotterill (4578/C/74, 6/5/75) in which a man of 42 with many previous convictions for dishonesty was sentenced to imprisonment for a total of 7 years, made up of cumulative terms of 1, 2 and 3 years, for a series of frauds which began within a few weeks of his release from prison. The sentence was upheld. Thomas notes that while "it could be argued" the decision conflicted with the "first limb" of the totality principle (as the individual frauds involved small amounts) it also illustrated that the second limb may be overridden where there is a particular need for preventative custody. Clearly the decision does conflict with the maximum individual sentence limitation.
In any event, the limitation has been expressly rejected in Western Australia. It arose squarely for consideration in Bowman (1993) 69 A Crim R 530.
That case concerned the imposition of various sentences for a series of offences of cultivating cannabis, aggregating 7 years' imprisonment. On appeal it was submitted the overall sentence offended the totality principle in two respects. The first was said to be that the aggregate sentence should not be longer than the upper limit of the normal bracket of sentences for the category of case in which the most serious offence committed would be placed. Malcolm CJ pointed out (537) that if that submission were to be accepted, it would mean the maximum sentence that could be imposed would be 4 years. His Honour did not consider it had ever been contemplated that the application of the totality principle required that a total sentence could never exceed the sentence imposed for the most serious of the offences "so that nothing extra was imposed for the others".
After setting out the relevant passages from Thomas, Malcolm CJ (with whom Kennedy J agreed) said (538):
"In my opinion, however, the first limb of the totality principle as so formulated does not form part of the law in this State. The position is as set out in the comments made by Ipp J in his reasons, with which I agree. It has been suggested that the first limb is an attempt to give practical meaning to the concept of 'relative proportionality' in the sentencing process: M Wells, Sentencing for Multiple Offences in Western Australia, Crime Research Centre Research Report No 6, June 1992, at p 37. The Report suggests that:
'By tying the total sentence to the normal range for one class of offence, there is implicit recognition that a number of offences of one class of offence may not be as serious as a single instance of a more serious class of offence.'
In my opinion recognition of such a possibility is not a proper basis for a separate 'limb' of the totality principle. I agree with the comment in the Report that:
'The difficulty, however, lies in selecting the most serious offence as the limitation on the total sentence. If the normal range of sentences is based on single instances of that offence, it is difficult to see why a total sentence for a number of offences would be disproportionate merely because it exceeds the normal range. In addition, if the offences are different in type the most serious offence may not be representative of the conduct.
... If the sentence is reduced because it exceeds the normal range of sentences for a more serious offence, it does not necessarily follow that the reduced sentence is proportionate to the total conduct. On the contrary, it suggests that the offender is receiving a "discount for bulk offending" (Ashworth, Sentencing and Penal Policy (1983), p 360).'
While the concept of relative proportionality may have a role to play in the application of the totality principle in the same way as it has a role to play in the sentencing process generally, I do not consider that it should be regarded as a limb or other aspect of the principle as such. It is no more than a reference point for comparison or a practical or pragmatic consideration.
In the present case, the application of the totality principle must take into account the nature of the offences involved and, in particular, the fact that the cumulative sentences were imposed in respect of separate crops of cannabis planned, planted and cultivated in three separate years. I am unable to accept the first submission made on behalf of the applicant in relation to the application of the totality principle."
Ipp J expressed a similar view. He discussed (540 ‑ 541) several decisions of the Court of Criminal appeal of this State in which cumulative sentences, substantially above the normal level of sentences for the most serious of the individual offences involved, had been upheld. He noted Vaitos (1981) 4 A Crim R 238, a decision of the Court of Criminal Appeal of Victoria, in which a total sentence far higher than the normal level of sentences for the most serious of the individual offences involved, was upheld. His Honour then concluded (541):
"The overriding principle is that the sentence imposed should be proportionate to the degree of criminality involved; this principle remains paramount even when punishment is imposed for multiple offences: Veen (No 2) (1988) 164 CLR 465; 33 A Crim R 230; Wicks (1989) 3 WAR 372 at 379-380; 44 A Crim R 147 at 154-155; Jarvis (unreported, Court of Criminal Appeal, WA, Ipp, Murray and Anderson JJ, Library No 930341, 14 June 1993). It is the case that, as Anderson J remarked in Jarvis:
'Within that general rule there is room to give effect to the different purposes of punishment: deterrence of the offender and others, protection of the public, vindication for the victim, denunciation of the offender's conduct, promotion of respect for the rule of law, and so on: Veen (No 2) especially at 476‑477; 238; Wicks especially at 378‑380; 153‑155.'
In my opinion, however, the so‑called first limb of the totality principle does not reflect any of the purposes of punishment. It is an arbitrary rule that has no bearing upon the principle of proportionality. Further, it does not reflect the sentencing practice adopted in this State. In my view it does not represent the law in this State."
(See also Herbert v The Queen (supra), per Malcolm CJ at 339 ‑ 341).
The appellant's submission that the sentencing Judge here erred in not having regard to the "rule" that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual sentences involved, cannot succeed. There is no such "rule". Nor is there any principle or guideline to such effect which applies to the exercise of the sentencing discretion in this State.
The appellant's submission in this case ultimately is that if his Honour had stepped back and taken "a last look" at the aggregate sentence he would have concluded that it was disproportionate to the appellant's overall criminality and so would have reduced the aggregate term of imprisonment. I cannot accept this submission. Given the deliberate, sustained, brutal and savage assaults upon the victim, the extent of premeditation, the fact that having beaten and severely injured him the first time, the appellant and his co‑offenders sought out the victim immediately following his discharge from hospital and detained and assaulted him again (subjecting him, as counsel for the respondent

accurately described it, to torture), the overall sentence was very much towards the lower end of the range.

I would dismiss the appeal.
McLURE JA: I have had the advantage of reading the reasons for judgment of Roberts-Smith JA. I agree that the appeal should be dismissed generally for the reasons he gives. However, I wish to make some additional comments.
There are two limbs to the totality principle. The first limb requires the judge who is sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole: Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308 per McHugh J.
The practical effect of the first limb of the totality principle is ordinarily to arrive at an aggregate sentence that is less than the sum of the individual sentences for each offence: R v Holder [1983] 3 NSWLR 245 at 260 per Street CJ. There are different theories as to the rationale for the first limb of the totality principle. There is the "exponential theory" which is to the effect that the severity of a term of imprisonment increases exponentially as it increases in length: Jarvis v The Queen (1993) 20 WAR 201 at 213 per Murray J. An alternative theory is based on assumed rehabilitation and reduced demand for retribution after the offender has served the term of the first sentence: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 per Anderson J. However, theoretical differences as to the rationale for the principle have no effect on its application.
The appellant contended that the first limb of the totality principle included the proposition that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved. That proposition does not represent the law in this State: Bowman (1993) 69 A Crim R 530 at 538 per Malcolm CJ, at 539 ‑ 541 per Ipp J. The reasoning in that case is compelling.
The second limb of the totality principle is that the Court should not impose a "crushing" sentence. A crushing sentence is one which deprives the offender of any reasonable expectation of useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis (supra) per Anderson J.

Linked with the appellant's submission that the total sentence in this case infringed the totality principle was a further submission to the effect that s 88(1) of the Sentencing Act 1995 (WA) gives rise to a statutory presumption of concurrency. We were referred to the Victorian case of R v Mantini [1998] 3 VR 340. In that case the Victorian Court of Appeal construed the equivalent provision (s 16) in the Sentencing Act 1991 (Vic) to give rise to a prima facie rule of concurrency with the Court having an unfettered discretion to order total or partial cumulation. However, the case is of little assistance because the terms of s 16 of the Victorian Act are substantially different to s 88. Subsections (1), (3) and (5) of s 88 are relevant for construction purposes and provide:
"(1) An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
….
(3)If at the time an offender is sentenced to a fixed term ‑
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that ‑
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly concurrently with the other fixed term.
…
(5)An offender sentenced to a life term is to serve that term concurrently with any other term that he or she is serving or has yet to serve."

Section 88 of the Sentencing Act has to be considered against the background of long accepted sentencing principles. In the ordinary course of sentencing for multiple offences, the sentencing judge will determine the appropriate sentence for each offence, assess whether the sentences should be made concurrent or cumulative in accordance with established principle (in particular, the one transaction rule) and finally review the total sentence to be imposed by reference to the totality principle (often referred to as the "last look"): Pearce v The Queen (1998) 194 CLR 610 at 624 per McHugh, Hayne and Callinan JJ; Dickens v The Queen (2004) 147 A Crim R 343 at [11]. The court is required to positively consider and determine the individual sentences and the total effective sentence having regard to the relevant rules and principles. Those rules and principles will guide the determination of whether the sentencing judge should exercise the discretion in s 88(3) to order whole or partial cumulation. By virtue of s 88(1), the starting position is concurrency. However, the court is required to consider whether the proper course is to retain concurrency or order some degree of cumulation. The use of the terms "presumption" and rule "prima facie" are apt to mislead as to the legislature's intention.
The essence of the appellant's submission in this case is that the sentencing Judge failed to have a last look at the total sentence and as a result imposed a total sentence that was too long. I am not persuaded that the sentencing Judge failed to consider the totality principle. He was sentencing three co‑offenders and it is apparent from his sentencing remarks in relation to one of the other offenders that he had taken into account and applied the totality principle. It cannot be suggested that such consideration was confined to only one of the offenders he was sentencing. In any event, even if the sentencing Judge had failed to consider the totality principle, this Court can only allow the appeal if, in its opinion, a different sentence should have been imposed: s 31(4) of the Criminal Appeals Act 2004 (WA). In my opinion a different sentence should not have been imposed.