Stipanich v The State of Western Australia

[2005] WASCA 145

STIPANICH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 145

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 145
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:121/2004	Heard:	14 APRIL 2005
Coram:	MALCOLM CJ MCLURE JA PULLIN JA	Delivered:	9/08/05
No of pages:	41	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed and sentences varied taking into account sentences previously imposed
Category:	B
PDF Version

Parties:	DAVID JOHN STIPANICH THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Sentencing Application for leave to appeal against sentence Application of totality principle Need to take into account sentences previously imposed
Legislation:	Criminal Code (WA), s 695(1) Government Railways Act 1904 (WA), s 43 Sentencing Legislation Amendment and Repeal Act (2003) (WA) Young Offenders Act 1994 (WA)
Case References:	Attorney-General v Tichy (1982) 30 SASR 84 Barnes v The State of Western Australia [2004] WASCA 258 Cranssen v The King (1936) 55 CLR 509 Gavin v The Queen (1992) 6 WAR 195 Harris v The Queen (1954) 90 CLR 652 Herbert v The Queen (2003) 27 WAR 330 Jarvis v The Queen (1993) 20 WAR 201 Johnson v The Queen (2004) 78 ALJR 616 Kovac v The Queen (1977) 15 ALR 637 Little v The Queen [2001] WASCA 87 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1988 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Brown (1982) 5 A Crim R 404 R v Faithfull (2004) 142 A Crim R 554 R v Holder & Johnston [1983] 3 NSWLR 245 R v Peterson [1984] WAR 329 R v Stringfellow, unreported; CCA (Qld); 8 November 1984 R v Suckling (1983) 33 SASR 133 R v Todd [1982] 2 NSWLR 517 R v VJV [2004] NSWCCA 415 Sulejmani v The State of Western Australia [2005] WASCA 95 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Woods v The Queen (1994) 14 WAR 341 Johnson v The Queen (2002) 26 WAR 336 Pieri v The Queen [2001] WASCA 357 R v Azaddin (1999) 109 A Crim R 474 R v Edwards (1993) 67 A Crim R 486 R v Grein [1989] WAR 178 R v Kadem (2002) 129 A Crim R 304 R v Ruane (1979) 1 A Crim R 284 R v Shore (1992) 66 A Crim R 37 R v Tait (1979) 46 FLR 386 R v White [2002[ WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STIPANICH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 145 CORAM : MALCOLM CJ

MCLURE JA
PULLIN JA

HEARD : 14 APRIL 2005 DELIVERED : 9 AUGUST 2005 FILE NO/S : CCA 121 of 2004 BETWEEN : DAVID JOHN STIPANICH

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

For File No : CCA 121 of 2004

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 7 of 2003

(Page 2)

Catchwords:

Criminal law and procedure - Sentencing - Application for leave to appeal against sentence - Application of totality principle - Need to take into account sentences previously imposed

Legislation:

Criminal Code (WA), s 695(1)

Government Railways Act 1904 (WA), s 43
Sentencing Legislation Amendment and Repeal Act (2003) (WA)
Young Offenders Act 1994 (WA)

Result:

Leave to appeal granted

Appeal allowed and sentences varied taking into account sentences previously imposed

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Mr D Dempster

Solicitors:

Applicant : In person
Respondent : State Director of Public Prosecutions

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

Attorney-General v Tichy (1982) 30 SASR 84
Barnes v The State of Western Australia [2004] WASCA 258
Cranssen v The King (1936) 55 CLR 509
Gavin v The Queen (1992) 6 WAR 195
Harris v The Queen (1954) 90 CLR 652
Herbert v The Queen (2003) 27 WAR 330


(Page 3)

Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen (2004) 78 ALJR 616
Kovac v The Queen (1977) 15 ALR 637
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985
Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1988
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Brown (1982) 5 A Crim R 404
R v Faithfull (2004) 142 A Crim R 554
R v Holder & Johnston [1983] 3 NSWLR 245
R v Peterson [1984] WAR 329
R v Stringfellow, unreported; CCA (Qld); 8 November 1984
R v Suckling (1983) 33 SASR 133
R v Todd [1982] 2 NSWLR 517
R v VJV [2004] NSWCCA 415
Sulejmani v The State of Western Australia [2005] WASCA 95
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Johnson v The Queen (2002) 26 WAR 336
Pieri v The Queen [2001] WASCA 357
R v Azaddin (1999) 109 A Crim R 474
R v Edwards (1993) 67 A Crim R 486
R v Grein [1989] WAR 178
R v Kadem (2002) 129 A Crim R 304
R v Ruane (1979) 1 A Crim R 284
R v Shore (1992) 66 A Crim R 37
R v Tait (1979) 46 FLR 386
R v White [2002[ WASCA 112


(Page 4)

1 MALCOLM CJ: This is an application for an extension of time for making an application for leave to appeal against sentence. On 18 November 2003, the applicant was convicted after a trial in the Supreme Court on two counts of aggravated armed robbery and one count of aggravated burglary. He was sentenced by Murray J on 16 December 2003 to a total term of imprisonment of 7 years comprised of sentences of 4 years' imprisonment for each of the armed robberies, to be served concurrently with each other, noting that the sentence would otherwise have been 6 years in each case under the legislation as it stood prior to 31 August 2003. A sentence of imprisonment for 3 years was imposed in respect of the aggravated burglary and an order was made that that sentence be served cumulatively upon the sentences for the armed robberies. An order was made that the applicant be eligible for parole.

2 The application for an extension of time is dated 21 May 2004, but was not filed until 26 July 2004. Taking into account the Christmas vacation from 23 December 2003 to 13 January 2004, when time did not run, the application should have been filed no later than 28 January 2004. It follows that the application was filed almost six months out of time. The explanation for the delay in his application is that the applicant's legal representation was:

"… withdrawn once sentence was imposed upon me and I didn't even know or understand my rights to appeal. I have since had time to look at other cases and had the opportunity to look into the [Sentencing Act 1995 (WA)] and I would like to have the chance to approach the court as to having my sentence reduced due to severity upon several grounds. If you could grant me time to appeal I would appreciate it very much."

3 The applicant's explanation for the delay in making his application was expanded somewhat at the hearing of his application for an extension of time. The applicant pointed out that after being sentenced, he was sent to the prison at Canning Vale and then transferred to Bunbury because his partner was pregnant and his daughter was due to be born. He returned to Canning Vale in January 2004. This was when he was informed by his lawyer that he would no longer provide him with legal representation. It then took some time for him to prepare the papers for the application with the result that his application was filed nearly six months out of time. As the applicant put it:

"… I was pretty crushed with the sentence and I did get stuck in a bit of a rut for a couple of weeks trying to get my head around

(Page 5)

basically five years in prison. I went to gaol for a very similar offence and I got out of prison and like I tried to turn my life around. I got a job and I was doing the right thing … I'm a father now. I took on some big responsibilities once I was released from prison in trying to turn over a new leaf and start a new life …"

4 The primary point made by the applicant was that since the commission of the present offences and as a result of the delay in dealing with them, he had demonstrated progress towards rehabilitation in the period of 26 months since the commission of the relevant offences. It was contended that this progress had not been sufficiently taken into account by the learned sentencing Judge.

5 The grounds on which the applicant seeks leave to appeal are that:

"1. That the sentence imposed was manifestly excessive in the circumstances of the case.

2. In sentencing the learned trial Judge erred in not properly taking into consideration the totality of the events in relation to the defendant."

6 The applicant seeks orders that the sentences imposed be set aside and a fresh sentence be imposed or, alternatively, the sentence be varied so that the sentence for the aggravated burglary be served concurrently with the sentences imposed for the armed robberies.

7 In this context, it needs to be constantly borne in mind that an appellate court is not entitled to interfere with a sentence imposed merely because it would have exercised the sentencing discretion in a manner different from that of the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665 and Little v The Queen [2001] WASCA 87.

Extension of time

8 Where there has been a lengthy delay in making an application, the Court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension of time is not granted: Gavin v The Queen (1992) 6 WAR 195 at 198 – 199 per Malcolm CJ. In each case, the first matter to be considered is whether or not the applicant has adequately explained the failure to comply with the requirements of s 695(1) of the Criminal Code (WA) (the "Code"). In Gavin v The Queen

(Page 6)

(supra) at 201, Seaman J quoted with approval the following passage in the judgment of Burt CJ in Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 that:

"This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for an extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of the court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this court having regard to those two broad considerations and it would seem from the cases that a similar discretion vested in other Courts of Criminal Appeal in Australia and by the Court of Criminal Appeal in England has been exercised in the same way: see R v Brown (1963) SASR 190 and the other cases which are collected in the text of Carter's Criminal Law of Queensland (5th ed) at p 612."

9 That passage was referred to by me and by Smith J with approval in Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1988.

The facts

10 The relevant facts leading to the applicant's conviction were that on 13 September 2001, a Mrs Balaam was at her house in West Midland with her son, who was in his early fifties, and who lived with his mother. Mr Balaam Senior was in a nursing home. On that day, the applicant and three others went to Mrs Balaam's house by car. A fourth person stayed in the car. The applicant and two others, who were wearing balaclavas,

(Page 7)

forced their way into the house. The applicant was not wearing a balaclava. One of those wearing a balaclava was armed with a shotgun.

11 Once inside the house, they confronted Mrs Balaam, who was 76 years of age. She was forced down on to the floor and the shotgun was pointed at her. The prosecution case was that the applicant was involved in that. The man with the balaclava was putting his hand over Mrs Balaam's mouth trying to stop her from screaming. The applicant was behind that man, kneeling down over Mrs Balaam and trying to put some tape around her mouth to keep her quiet.

12 After the incident, a piece of silver masking tape was found in the passageway of the house. That was sent for DNA analysis. The DNA on the surface of the tape matched the applicant's DNA. There were also some roots of silver or grey hairs on the tape. Mrs Balaam could not recall her mouth being taped. All she could remember was that she was struggling and screaming when a hand was put over her mouth and she pulled it off.

13 In the meantime, her son, Mr Walter Balaam, who had initially gone outside when he heard their neighbour's dogs barking, came back inside through the kitchen. He saw what was happening to his mother. He picked up a broom and confronted one of the men wearing a balaclava, hitting him with the broom. That man picked up a chair and swung it at Mr Balaam.

14 There was also a second man wearing a balaclava who was armed with a shotgun. He came into the kitchen and said to Mr Balaam, "Get on the fucking floor. I'll blow your head off". Mr Balaam got on the floor. The man wearing the balaclava held the barrel of the shotgun close to Mr Balaam's head and demanded $20,000. Mr Balaam went to his bedroom and gave the man $130 which he had in his wallet. At that point, the applicant entered the bedroom and demanded $20,000 from Mr Balaam. When Mr Balaam did not give him the money, the applicant ran at Mr Balaam and punched him on the right side of the face, causing him to fall onto the bed. Photographs were tendered in evidence showing the resultant injuries.

15 While those events in Mr Balaam's bedroom were occurring, the second person wearing a balaclava was demanding money from Mrs Balaam. She went to her bedroom and retrieved a bag from under her bed. There was $2700 in cash in her bag of which $500 belonged to her

(Page 8)

husband, which had been taken out to pay for his board at the nursing home.

16 Once they had got the money, the two men in balaclavas and the applicant left the house. The police were then called and attended soon afterwards. In the meantime, Mrs Balaam's granddaughter came to the house with her father and they found the piece of masking tape in the hallway. It was on this tape that the DNA of both the applicant and that of Mrs Balaam were found.

17 On 11 July 2002, Mrs Balaam's son, Walter Balaam, picked out the applicant from a photo board shown to him by police by identifying the applicant as the person in photograph No 8.

18 Count 1 on the indictment was concerned with Mrs Balaam's money that was taken and count 2 was concerned with money which belonged to both Mr and Mrs Balaam. Count 3 related to the money taken from their son.

19 At the trial, counsel for the applicant admitted that the applicant was present in the house without the consent of the occupants; one of the persons he went there with was armed with a shotgun (although the applicant denied that he was so armed); he was in company with the other two; there was at least one person in the house when he went in; the intention was that they would threaten and/or assault Mr Balaam junior by hitting him once in the jaw; and admitted that the applicant assaulted Mrs Balaam by putting his hand over her mouth.

20 In sentencing the applicant, the learned Judge said:

"The offences themselves are of course among the most serious that appear in the criminal statutes. The aggravated burglary offence committed on a person's home in circumstances where you well knew that there were people home is of itself, without more, particularly when one of the offenders was armed and in the circumstances generally of its commission – carries a maximum penalty of 20 years' imprisonment. You can see that for the most serious examples of offences of that kind that's the order of sentence which the parliament thinks people ought to be getting, and there it is.

Then when you add to that by committing the robbery offences in the circumstances of aggravation which apply to them – again that one of the offenders was to your knowledge when the

(Page 9)

offences were committed armed and there were a number of you and that personal violence was used firstly to Mrs Balaam who, as Ms Georgevic said, was an elderly lady simply coming to answer the door in her home when you burst in and she was attacked and it is clear that you had a planned role in relation to dealing with her.

Whatever your particular motivation and justification in your mind was for it, you were a person who was trying to keep her quiet and was trying to apply the tape to her and there was a considerable amount of planning which had gone in. People were wearing balaclavas or other disguise and matters of that sort. This wasn't a spur-of-the-moment activity. It was a planned effort, in my opinion, and I think you well knew what was going to happen.

I say that even though I'm prepared to accept that your justification in your mind, and a powerful justification, was that you were told and you believed that the man Walter Herbert Balaam was a paedophile. Of course there's no evidence of that, nor did you have any evidence of that apart from what somebody told you. It's a hopeless basis upon which to act and upon which to involve yourself in an invasion of this man's home and upon which you're prepared to be involved in a violent attack upon him.

Whether you were party to the robbery plans from the outset doesn't matter much. The others were certainly making those plans, equipping themselves with disguises and with a weapon, and the demands for the $20,000 and so forth show that by whatever means and for whatever reason they thought that Walter Balaam had a considerable amount of money in his possession at the house and that's what they were after, whatever a donkey like you thought you were after.

The point about all that is that whilst you may have been sucked in by that initially, as soon as it was under way you were very much an active participant in it and your criminal responsibility for the commission of those offences is very complete and at a high level. Each of those robbery offences carries a maximum punishment of life imprisonment for the most serious examples of their kind and these are of particular seriousness."

(Page 10)

21 In my opinion, the learned Judge's account of the facts of the case was objective, as were his comments on the established facts. His Honour commented that he was "astonished" when he read in the pre-sentence report that the applicant had no remorse for the offence committed on Walter Balaam because the applicant continued to think, without any evidence to support the conclusion, that Mr Balaam was a child-sex offender. As Murray J rightly pointed out, it was not for the applicant to take action as a result of what he thought. It was a matter for the law enforcement authorities to deal with. As it was, the applicant had involved himself in a robbery in respect of which Mr Balaam was a victim no less than his mother and was deserving of the applicant's:

"… remorseful response just as much as she does. It is an adverse reflection upon you that you haven't thought it through sufficiently maturely to come to that conclusion for yourself, but there it is. It's not a matter which I would allow to cause me to impose upon you a more serious sentence than would otherwise be the case."

22 It was pointed out by his Honour that this was a pre-meditated and planned offence. The sums of money taken were large. The applicant's lack of remorse and his failure to reveal the identities of his co-offenders deprived the applicant of significant mitigation of punishment that would otherwise be available to him.

23 The learned Judge also said:

"The home invasion elements of these offences add greatly to their seriousness and you will understand, I'm sure, that so far as the Court is concerned, the obligation that I have is to respond to the seriousness of those offences and to impose proper proportionate punishment upon you having regard to their seriousness so that people who might otherwise be tempted to engage in behaviour of this sort might be deterred from doing so by understanding that they can go to prison, and go to prison for substantial periods of time."

24 The learned Judge went on to say that:

"You deserve punishment for the commission of these offences, as you yourself appreciate, and you deserve the lesson which is designed to ram home to you the proposition that if you continue to involve yourself in the commission of offences of this kind, and this level of seriousness, you are in fact now

(Page 11)

living in the place where you'll be living substantially for the rest of your life, in prison, and the courts will respond to keep you there if that's the way you are going to behave."

The applicant's personal circumstances: mitigation

25 So far as the applicant's personal circumstances are concerned, his Honour said:

"You have youth on your side and in my opinion there is still substantial mitigation because of your youth, which is available to you, and I propose to allow for that. You have not of course the mitigation available to you which would flow from acceptance of your offending behaviour is [sic in] relation to the robberies, and that would have been reflected in the entry of pleas of guilty in relation to those matters, but that is not a matter which is going to make the punishment more severe."

26 It was noted that the applicant accepted that his conduct had involved him in the commission of the offence of burglary, although he did not plead guilty to that in the first instance. This was a tactic which was part of a process of leaving matters in issue at the trial. His Honour considered, however, that there was some mitigation available because the matters of fact that the applicant admitted formally through his counsel and confirmed in his evidence to the Court, demonstrated to the learned Judge that "it was never in serious contest that you were guilty of the offence of burglary".

27 His Honour referred to the letters from the applicant's mother and his sister. The applicant's mother felt a sense of responsibility and guilt for what had happened to the applicant as a child. There was also a letter from the applicant's sister which revealed what his Honour described as:

"… a terrible childhood and one which one wouldn't wish upon one's worst enemy …"

28 His Honour expressed the view, however, that the applicant needed to get away from the proposition that his offending was a result of the influence of his childhood. As his Honour put it, the applicant had to get himself into a position where he did not use as a justification for his bad behaviour and commission of the offences, the things that people did to him in his childhood, including the things that his stepfather and a neighbour did to him in his childhood, and that the applicant needed to stand on his own two feet, "… stand up tall" and take his place in the

(Page 12)

community and make a contribution. The learned Judge considered the applicant still had that capacity based upon the psychologist's report. The message of the report was that the applicant had a lot of hard work ahead of him. It would be worthwhile to do it, but he was doomed if he did not do it. It was necessary to deal with his pre-disposition to anger and violence and the contribution to his past behaviour by amphetamine abuse, which created anger and violent responses to situations. In this respect, his Honour noted that the applicant had taken some steps toward that by participation in the Naltrexone programme which helped in relation to morphine abuse, in particular, although the psychological report noted a continuing need to participate in a substance abuse programme.

29 His Honour also referred to the harm done as a result of sexual abuse suffered by the applicant as a child. While the applicant maintained a desire to change, it was noted that he was "not keen to address that issue" and that the problem was a deep-seated one which the applicant did not like to confront. His Honour noted that, unless the applicant was prepared to take the first steps to seek help and be open to receive it and act on it, no-one else would be able to help him.

30 While his Honour admitted that, at the conclusion of the trial, he had formed a "very jaundiced attitude" toward the applicant and his offending behaviour, he had concluded that there was more hope for the applicant in his personal circumstances, which required:

"… some mitigation of punishment, some attempt to balance the demands of the community and the law for severe punishment against the need to offer you some light at the end of the tunnel, some hope that you can turn it around and to express the Court's view of you which is that if you do work hard, you will turn it around and you will still have a life ahead of you."

31 The learned Judge was sufficiently encouraged to that view by such things as the applicant's behaviour on parole when he was released in May 2002. It was relatively shortly after that that the investigation of the current matters was brought to the point where charges were laid. Bail having been granted, the applicant continued on parole and successfully completed his parole in respect of the earlier offences. This led his Honour to say:

"You have shown a willingness to persist in that way since because you took advantage, it seems to me upon the report of

(Page 13)

the pre-sentence report, of the leniency offered to you by the Bunbury Court of Petty Sessions where the community-based order was made in July of this year and you have co-operated in the processes which that order involves and that's a considerable encouragement to this Court. Based upon that sort of material I can tell you that I have changed my mind in relation to eligibility for parole and I propose to make a parole eligibility order."

The sentences imposed

32 His Honour also noted the effect of the relevant provisions in the Sentencing Legislation Amendment and Repeal Act (2003) (WA), which provide that the remissions which previously applied to sentences no longer did so and courts were required to reduce the sentences which would otherwise have been imposed under the previous legislation by one-third.

33 His Honour said that, prior to the changes in the law, an appropriate sentence for the aggravated burglary would have been imprisonment for 4½ years which was reduced to a sentence of 3 years. His Honour then imposed for the armed robbery, aggravated by the violence committed on Mrs Balaam, a sentence of imprisonment for 4 years on the basis that his Honour would have imposed a sentence of 6 years' imprisonment prior to the changes in the law, notwithstanding that he thought that would "probably be too light". For the armed robbery with violence upon Mr Balaam, his Honour imposed a similar sentence of imprisonment for 4 years to be served concurrently with the other sentence for armed robbery.

34 The total sentence was 7 years. An order was made for eligibility for parole in respect of each of the sentences. His Honour commented that "… it's a severe sentence; I appreciate that. It is reduced to the maximum extent that I am able to do so".

35 The final comments made by the learned Judge were:

"Your reaction to [the sentence imposed] will be of vital importance to your future. If you take the view that you must do that time, you must serve those sentences and you must maintain your determination to turn your life around and to seek help during the course of serving those sentences, then I think your future may be regarded as being relatively bright. If, on the other hand, you take the view, an immature view, that

(Page 14)

you've been hardly done by and you relapse into sullen unco-operativeness, then I think you will find your future very bleak indeed.

So I encourage you to the former course and you will need to put yourself in the way of these treatment programmes and so forth while you are in prison. It's most important that you do so, that you talk to people who can assist you to get into those programmes and can provide them for you, and you make the most of the time."

Should all three sentences have been concurrent?

36 The central question raised by the application is whether the sentencing discretion of the learned Judge miscarried by not making all three sentences concurrent on the basis that each of the offences was committed in the course of the one transaction or episode.

37 At the outset, it is relevant to note that while the applicant entered a plea of not guilty at his trial, he did make a number of admissions immediately following the conclusion of the opening address of counsel for the prosecution. His counsel, Mr Brash, said:

"Members of the jury, as you have heard, I act on behalf of the accused Mr Stipanich, and he has authorised me to make certain admissions in this case which may help you focus on what we see as being the primary issues. Those admissions are that he admits he was present at the address at 41 Amherst Road, West Midland, on 13 September 2001; he admits he went into those premises without the consent of the occupants; he admits one of the people he went in there with was armed with a shotgun but he denies he himself was armed with a shotgun. He admits therefore that he was in company with other people.

He knew there was at least one person in the house when they went into it. He admits the house was used for human habitation; he admits the intention on going into the address at 41 Amherst Way, West Midland, on that date was to threaten and/or assault Walter Herbert Balaam; he admits he did assault Walter Herbert Balaam by hitting him once to the jaw and he admits that he did assault Jane Doreen Balaam by putting his hand over her mouth. I hope, members of the jury, those admissions will perhaps help put the whole matter into some

(Page 15)

context when at the end of the evidence you are called upon to consider it."

38 Those admissions were confirmed in writing and tendered following the luncheon adjournment on the first day of the trial in the Supreme Court on 17 November 2003.

39 It needs to be taken into account that it was shortly after the release of the applicant from prison, in relation to the earlier offences in May 2002, that the investigation of the matters the subject of the present offences was completed and charges laid. The applicant was granted bail and successfully completed his parole in respect of the earlier offences while on bail in respect of the charges which resulted in the sentences imposed by the learned Judge, the subject of the present application.

40 It was against that background that the relevant sentences were imposed. The approach adopted by the learned Judge was consistent with the approach adopted in Pearce v The Queen (1998) 194 CLR 610 to the extent that the learned Judge first determined what his Honour considered to be an appropriate sentence for each of the three offences. The primary contention of the applicant was that, taking into account the one transaction rule, and/or the totality principle, the learned Judge erred in the exercise of his sentencing discretion by not making all three of the sentences imposed concurrent with the result that the total sentence was manifestly excessive.

41 Notwithstanding that the applicant was unrepresented in the Court of Appeal, his written and oral submissions were of an exceptionally high standard and demonstrated both a significant level of appreciation of the seriousness of the offences he had committed and a considerable degree of remorse for his offending. There was, of course, a vital piece of evidence at the trial in that the applicant's DNA was found on the masking tape used to gag Mrs Balaam. This led the police to attend at the applicant's then residence where they executed a search warrant of the premises looking for the shotgun used during the commission of the offences. The search was unsuccessful, but the applicant's mother was asked to bring the applicant to Midland Police Station to be interviewed, after he had finished work.

42 The applicant participated voluntarily in a video record of interview on 23 July 2002, during which he admitted going to Mrs Balaam's house and committing all of the elements of the relevant offences except those of stealing any money or property. He declined to supply information

(Page 16)

regarding his co-offenders for fear of the retribution that would take place if they were identified. In addition to the DNA evidence, the prosecution relied upon admissions made by the applicant in his video record of interview, photo boards in which the applicant had been identified by prosecution witnesses and the evidence of the two victims. While the applicant was an accessary, he was not the one who actually committed the armed robbery offences. At the time of his trial, he was unaware that he would be held accountable for the actions of his co-offenders. The result was that he was convicted of each of the three offences charged, and on a separate count of breaching the Intensive Supervision Order ("ISO") to which he was subject as a result of his earlier offences.

Previous convictions and sentences

43 The applicant had previously been convicted of minor offences in the Children's Court on 27 July 1998, but no conviction was recorded following a referral to a juvenile justice team. On 9 October 1998, he was convicted of common assault, two counts of burglary, two counts of causing damage, one count of being on premises without lawful excuse and one of possessing house-breaking implements. Once again, no conviction was recorded and the offences were dealt with by way of a referral to a juvenile justice team. He was convicted on 3 May 1999 of disorderly conduct, for which he spent some time in custody prior to sentence and received no further punishment in accordance with s 67(1) of the Young Offenders Act 1994 (WA). On 11 May 1999, he was convicted of assaulting a public officer and offensive behaviour under s 43 of the Government Railways Act 1904 (WA). He was also convicted on 15 November 1999 of an offence of causing damage for which he was fined $150.

44 As an adult, he was first convicted in the Court of Petty Sessions at Perth on 17 November 1999 on two charges of breach of a bond to be of good behaviour imposed on 11 May 1999, for which he was fined $300 on each charge. He was also fined $100 for possession of a prohibited drug. Just over a week later he was convicted in the Armadale Court of Petty Sessions of wilfully misleading a police officer, for which he was disqualified from holding or obtaining a driver's licence for 3 months and fined $500.

45 On 7 January 2000, he was convicted in Perth of driving without a licence and while under suspension for which his licence was cancelled and he was disqualified from holding a licence for 9 months and fined $1000. On the same day, he was convicted of driving with a blood

(Page 17)

alcohol content in excess of 0.08 per cent but less than 0.09 per cent for which his licence was cancelled, he was disqualified from holding a licence for 6 months and fined $800.

46 On 29 February 2000, he was convicted in the Court of Petty Sessions at Perth of offences of possession of cannabis and breach of bail for which he was fined $150 and $100 respectively. On 29 May 2000, he was convicted and fined $100 in respect of a breach of bail.

47 On 29 May 2001, he was convicted of his first offence as an adult in the District Court and sentenced to an intensive supervision order ("ISO") and 40 hours' community work in respect of each of two counts of burglary, one of which was a count of aggravated burglary. On 5 June 2001, he was convicted in the Court of Petty Sessions at Armadale on one count of burglary for which he was sentenced to an ISO for 18 months and 60 hours' community work. He was also convicted of driving under suspension for which he was likewise sentenced to an ISO for 18 months and for 60 hours' community work, his driver's licence cancelled and disqualified from driving for 9 months cumulative; dangerous driving for which he was disqualified from driving for 3 months concurrent and fined $200; driving under suspension for which he was placed on an ISO for 18 months, required to do 60 hours' community service and disqualified from holding a licence for 15 months; and giving a false name and address to a police officer for which he was disqualified from holding a driver's licence for 3 months concurrent and fined $100.

48 On 19 October 2001, he was convicted in the District Court of assault occasioning bodily harm and sentenced to 18 months' imprisonment. He was also convicted on three counts of breach of the ISO of 29 May 2001 for which he was sentenced to 3 months' imprisonment cumulative on the sentence for the assault, and 3 months concurrent on each of the other two charges. He was also convicted on the same date of offences of burglary and deprivation of liberty for which he was sentenced to imprisonment for 18 months concurrent on each charge, the total of the sentences being imprisonment for 21 months.

49 On 10 January 2002, he was convicted on his plea of guilty in the Court of Petty Sessions at Perth of a series of offences, namely, breach of bail; burglary; damage; being on premises without lawful excuse and possessing a prohibited drug. He was sentenced to concurrent sentences for each of these offences with the result that the total for all of the offences of which he was then convicted, including those in the District Court, was imprisonment for 18 months.

(Page 18)

50 On 1 March 2002, he was convicted of burglary in the Court of Petty Sessions at Bunbury and sentenced to imprisonment for a further 4 months concurrent with the earlier sentences. On 15 October 2002, he was convicted in the Court of Petty Sessions at Perth of driving while under suspension with the result that he was fined $1500 and had his licence cancelled and was disqualified from holding a licence for 9 months. On the same date, he was convicted of willfully misleading a police officer for which he was disqualified from driving for 3 months concurrent and fined $400.

51 The applicant says that he pleaded guilty to all these charges in an effort to bring all outstanding matters to a conclusion and accept responsibility for his actions prior to his release. This led to the imposition of what the applicant acknowledged were lenient total sentences which were made concurrent with the sentences he was already serving.

52 In the meantime, the applicant had been released on a parole order with special conditions on 16 December 2002 in respect of the offences for which he had previously been sentenced by the District Court. The special conditions included that he engage in substance abuse counseling and psychological counseling as well as undertaking urinalysis as directed. The applicant successfully completed his period on parole. It was eight weeks prior to the applicant's completion of his parole period when he was charged with the current offences which occurred on 13 September 2001, which was clearly within the same general period as that in which many of the earlier offences were committed.

Principles to be applied

53 The principles which are applicable in the determination of an application for leave to appeal against sentence are well established. In R v Peterson [1984] WAR 329 at 330, they were said by Burt CJ to be identical to those stated by Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 – 388. After referring to Harris v The Queen (1954) 90 CLR 652; Kovac v The Queen (1977) 15 ALR 637 and Cranssen v The King (1936) 55 CLR 509 at 519 – 520, their Honours said:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient

(Page 19)

feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally Skinner v The King (1913) 16 CLR 336 at 339 – 340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293)."

54 In Johnson v The Queen (2004) 78 ALJR 616 at [12], Gummow, Callinan and Heydon JJ (with whom Gleeson CJ agreed) reiterated what had been said in Pearce v The Queen (supra) at [45] – [48] by McHugh, Hayne and Callinan JJ, namely, that:

"To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality …

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision … It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules … If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences …"

55 In the present case, the aggravated burglary and the two offences of armed robbery were in one sense a part of the one transaction or criminal episode involving the entry into the relevant premises with the intention of committing offences. In the case of count (1) on the indictment, the aggravated burglary, contrary to s 401(1) of the Code, involved an entry

(Page 20)

to Mrs Balaam's house without her consent with intent to commit an offence. As previously noted, there were four circumstances of aggravation.

56 In the case of count (2), the offence of armed robbery under s 391 of the Code, read with s 393, was that the applicant stole from Mrs Balaam with actual violence, a sum of money, the property of Mrs Balaam and count (3), the second count of armed robbery involved a further sum of money, the property of Walter Keith Balaam, which was in fact money held by Mrs Balaam on her husband's behalf. In respect of both the armed robbery offences, there were circumstances of aggravation, namely, that the applicant was armed with a shotgun, in company and that the applicant used personal violence to Mrs Balaam.

57 In this context, it is important to bear in mind that the applicant was not himself armed, but was guilty of the commission of the offences of armed robbery because he did acts for the purpose of enabling or aiding his two co-offenders to commit the offences, as well as being a party to the offence of aggravated burglary.

58 The verdicts of the jury to the effect that the appellant was guilty of the offences of armed robbery meant that the jury must have been satisfied that the applicant was present as part of a plan made with one or other or both of his co-offenders to enter the house and rob the occupants. In the implementation of the plan, the applicant must have been involved in some way with the masking tape used to gag Mrs Balaam because his DNA was found on the tape.

59 While the applicant himself was unarmed, he was clearly aware that one of his co-offenders was armed with a shotgun. It was relevant, however, that the applicant was the youngest of the three offenders but was not directly involved in the commission of the armed robbery offence against Mr Balaam, although he was an accessory. He was, however, directly involved in the armed robbery of Mrs Balaam because he was the one who had handled the masking tape used to gag Mrs Balaam. Clearly, she would have been terrified by the experience.

60 The real issue which is raised by both grounds (1) and (2) of the grounds of appeal is whether in making the sentence for the aggravated burglary cumulative upon the concurrent sentences imposed for the two armed robberies, the learned Judge failed to take the totality principle fully into account. His Honour was rightly concerned about the home invasion aspects of these offences and the need for the imposition of a

(Page 21)

deterrent sentence. This was reflected in his Honour's comment that the sentence imposed was:

"… designed to ram home to [the applicant] the proposition that if you continue to involve yourself in the commission of offences of this kind and this level of seriousness you are now in fact living in the place [ie prison] where you will be living substantially for the rest of your life …"

61 His Honour went on to say that:

"It seems to me that there is more hope for you and more in your personal circumstances which requires some mitigation of punishment, some attempt to balance the demands of the community and the law for severe punishment against the need to offer you some light at the end of the tunnel, some hope that you can turn it around and to express the Court's view of you which is that if you do work hard, you will turn it around and you will still have a life ahead of you.

I think I'm sufficiently encouraged to that view by such things as your behaviour on parole when you were released in May of 2002 and of course it was relatively shortly after that that the investigation of these matters was brought to the point where charges were laid, and yet that having been done and bail having been granted to you in relation to those matters again, you persisted with the parole and the successful completion of the parole order is noted.

You have shown a willingness to persist in that way since because you took advantage … of the leniency offered to you by the Bunbury Court of Petty Sessions where the community-based order was made in July of this year and you have co-operated in the processes which that order involves and that's a considerable encouragement to this Court. Based upon that sort of material I can tell you that I have changed my mind in relation to eligibility for parole and I propose to make a parole eligibility order."

62 The following passage was, in my opinion, critical in the context of this appeal. The learned Judge went on to say that:

"Now, there is a limit to how much the Court can reduce punishment, having regard to the things that I have been saying

(Page 22)

to you. It seems to me that I would not make all the sentences that I'm going to impose operate cumulatively, although it does seem to me that they are separate independent transactions [my italics]. The burglary stands on its own and has its own seriousness as an invasion of people's home in times when they are at home and they are in danger from the invaders.

The robberies separately committed against the separate individuals of Mrs Balaam and her son, Walter Balaam, carry their own independent seriousness and might very well receive cumulative sentences, but I'm not going to do that. I think that I would wish to reduce the punishment in a way that would cause me to abandon full cumulative sentences.

There is another aspect that you may or may not be familiar with and that is that the law has recently been changed so that the remissions which previously attach to sentences no longer do so and as a result of that change in the law the courts are told to reduce the sentences which they would otherwise have imposed by a third. I am alive to that and I will do that.

The conclusions to which I have come are these: for the aggravated burglary offence you will be sentenced to 3 years' imprisonment. A very serious burglary would, as you see from the sentence of 3 years' imprisonment, have attracted originally, before the changes to the law that I have mentioned, a sentence in my opinion of some 4½ years' imprisonment. Sentences of greater severity than that are commonly imposed for burglaries of this kind.

For the armed robbery with violence committed upon Mrs Balaam, doing the best I can to offer as much mitigation as is possible in relation to that, I impose a sentence of 4 years' imprisonment. I order that sentence to be served cumulatively. I would previously have imposed a sentence of 6 years' imprisonment in relation to that, and even that I think would probably be too light. For the armed robbery with violence upon Mr Balaam I impose a similar sentence of 4 years' imprisonment. I order that term to be served concurrently.

The total term, which will date from 18 November 2003 is one of 7 years' imprisonment. The order for parole eligibility means that you will be required to serve 5 years before being eligible

(Page 23)

for parole and being able to be released on parole. So it's a severe sentence; I appreciate that. It is reduced to the maximum extent that I am able to do so."

63 In my view, none of the sentences, when looked at individually, could be said to have been manifestly excessive.

64 The total of all the cumulative sentences imposed for the offences committed in July 2001 was imprisonment for 1 years and 9 months.

65 In my opinion, the offences with which we are presently concerned were clearly part of the same chapter of criminality as the earlier offences of burglary to which I have referred, so that the sentences imposed in respect of them should have been taken into account in the application of the totality principle when the learned Judge sentenced the applicant. In my view, if that had been done, it would have been appropriate to consider the possible reduction of the total of the sentences for the current offences of burglary and the two armed robberies on account of the application of the totality principle, taking into account the sentences imposed for other offences committed as part of the same chapter of criminality which would attract the application of the totality principle.

66 As was recognised in Jarvis v The Queen (1993) 20 WAR 201 in the judgment of Ipp J at 207:

"The severity of a term of imprisonment increases exponentially as it increases in length."

67 I endeavoured to explain the concept in Herbert v The Queen (2003) 27 WAR 330 at [12] in the context of the application of the totality principle. This requires consideration of all sentences imposed for a particular series of offences committed over a period of which the offences for which the offender is currently to be sentenced form a part. In Jarvis at 211, Murray J referred to the approval by the High Court in Mill v The Queen (1988) 166 CLR 59 at 62 – 63 of the formulation of the principle as stated by Thomas, Principles of Sentencing, 2nd ed (1979) at 56 – 57. Their Honours went on to say at 63:

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order

(Page 24)

to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

68 At 63 – 64, their Honours also said:

"The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of processes of the criminal law in the second State for a period of years."

69 At 64 – 65, their Honours approved the approach taken by the Court of Criminal Appeal of New South Wales in R v Todd [1982] 2 NSWLR 517, which was actually heard in 1979. Todd had been sentenced in Queensland in December 1974 to imprisonment for 8 years for offences of armed robbery committed in January 1974. At the time he was sentenced, he had already been in custody for some 10 or 11 months. In May 1979, he was sentenced in the District Court of New South Wales to imprisonment for 10 years for armed robbery and concurrent sentences in respect of other charges. These offences were also committed in January 1974. The sentences were expressed to commence on 30 January 1979 and a non-parole period was specified, expiring on 18 May 1983. Street CJ, with whom the other members of the Court agreed, said:

"… [I]t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences …

… [W]here there has been a lengthy postponement whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the circumstance that he has been left in the state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of

(Page 25)

approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

70 It was noted by the High Court that the Chief Justice had proceeded to make it plain that the pre-existing sentence, and the aggregate term which would result from the sentence passed by the second Judge, were relevant matters necessary to be taken into account in determining the head sentence. In Todd there was no challenge to the head sentence. Todd was followed by the Full Court of the Supreme Court of South Australia in R v Suckling (1983) 33 SASR 133 as well as by the trial Judge in Mill v The Queen (supra). It was cited with approval in R v Stringfellow, unreported; CCA (Qld); 8 November 1984, in which Andrews SPJ, with whom Macrossan and Ryan JJ agreed, said that:

"it was proper to take into account the term of imprisonment imposed in Western Australia and the period actually served and to regard the cumulative effect of the head sentences as well, ultimately, as the period of imprisonment to be served."

71 Their Honours in the High Court went on to say in Mill v The Queen (supra) at 65 – 66:

"In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkins and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second

(Page 26)

sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of the non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences."

72 It follows that the same approach should be taken where the offences occurred in the one State, but for one reason or another the sentencing for offences which may be regarded as part of the same chapter of criminality fall to be imposed significantly later in time, as in the present case.

73 In my opinion, in this case, it was necessary to have regard to the offences which had been committed about the same time as the offences now before the Court and for which the applicant had been earlier sentenced. I acknowledge that the learned Judge was not invited by counsel to adopt this approach and apply the totality principle in the context of the sentences imposed for the earlier offences committed in the same general period as the other offences to which I have earlier referred.

74 In my view, however, it was necessary to take into account all of the relevant sentences imposed upon the applicant in relation to each of the offences which formed part of the same relevant chapter of criminality to which I have referred. In my opinion, had that been done and, having regard to the totality principle and the performance of the applicant on parole, in respect of the earlier offences, it would not have been appropriate to make all of the sentences imposed by the learned Judge concurrent with each other but some reduction is required in the application of the totality principle in order to avoid what would otherwise be a crushing sentence, taking into account the earlier sentences. In these circumstances, I consider that the sentence for the aggravated burglary should be reduced to 12 months to be served cumulatively upon the concurrent sentences of 4 years for each of the armed robberies. This would have the result that the total sentence would be imprisonment for 5 years.

(Page 27)

75 It follows that unless an extension of time is granted, there would be a substantial miscarriage of justice in the sentencing process. It follows that the extension of time should be granted, having regard to the totality principle.

76 For these reasons, I would grant the applicant leave to appeal and allow the appeal to the extent of varying the sentences imposed by the learned Judge by ordering that the sentences be varied in the manner I have indicated.

77 MCLURE JA: I have had the advantage of reading the reasons to be published by the Chief Justice and Pullin JA. The relevant facts relating to the offences are set out in those judgments and not repeated here.

78 The applicant was convicted after trial of one count of aggravated burglary (count 1) and two counts of armed robbery (counts 2 and 3). Each offence was committed on 13 September 2001. On 16 December 2003 the applicant was sentenced by Murray J to 3 years' imprisonment for the aggravated burglary and 4 years' imprisonment for each offence of armed robbery. The sentences on counts 2 and 3 were ordered to be served concurrently with each other but cumulatively with the sentence of 3 years for the aggravated burglary. Thus, the total effective sentence was 7 years. In accordance with cl 2(1) of the first schedule to the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Amendment Act"), Murray J imposed a term for each offence that was two-thirds of the fixed term he would have imposed under the law as it stood prior to the commencement of the Amendment Act. Thus, the pre-Amendment Act penalties were 4½ years (count 1) and 6 years (counts 2 and 3) with a total effective sentence of 10½ years' imprisonment.

79 The applicant was 20 years old at the time he committed the offences (and 22 when he came to be sentenced for them). Notwithstanding his youth, the applicant had a relevant prior record of offending as an adult. On 19 October 2001 he was sentenced to a total of 21 months' imprisonment for offences which included assault occasioning bodily harm, aggravated burglary and deprivation of liberty. These offences were committed on 13 July 2001. While the applicant was serving the sentence for these matters, he was charged with a number of other offences to which he pleaded guilty in January 2002 and for which he was sentenced to 6 months' imprisonment to be served concurrently with the earlier sentence. The latter offences were committed on 23 July 2001.

(Page 28)

80 The applicant committed the offences the subject of this application while he was on bail for the offences committed on 13 July 2001.

81 In relation to the convictions the subject of this application, the applicant made a number of admissions prior to trial. At the commencement of the trial he made a number of formal admissions, the effect of which was that the only live issue at trial was whether the applicant was, for legal purposes, a participant in stealing from the complainants, being an element of the armed robbery offences with which he was charged. The defence was that he was present with the intention and purpose of assaulting Mr Balaam who he believed to be a paedophile. Although the jury found the applicant had participated in the armed robberies, the sentencing Judge accepted that the applicant's justification in his own mind for his conduct was his (unsubstantiated) belief concerning Mr Balaam. The sentencing Judge also accepted that the applicant had been a victim of sexual abuse as a child.

82 The applicant appeared in person on the application. He relied on a number of grounds of appeal, some of which overlap. He contended the sentencing Judge failed to apply the one-transaction rule and the totality principle and also failed to give due weight to his personal circumstances, rehabilitation, co-operation and the delay between the commission of the offences and sentencing. I take the matters concerning weight to be particulars of a claim that the total effective sentence was manifestly excessive.

83 The sentencing principles involved in the determination of this matter overlap. It is as well to firstly identify the relevant principles before seeking to apply them.

84 This Court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasoning. Alternatively, error may be inferred if the result is manifestly excessive. To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.

(Page 29)

85 Generally, a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence, then consider questions of cumulation or concurrence and, finally, questions of totality: Pearce v The Queen (1998) 194 CLR 610 at 624.

86 Where a single act or conduct of an offender is relied on to establish an element that is common to two (or more) offences, it is wrong to punish the offender twice for the commission of the elements that are common. That is, the sentences for the individual offences must not all reflect punishment for the common element. The identification of a single act or conduct common to two offences should be approached as a matter of commonsense, not as a matter of semantics: Pearce at 623.

87 The situation where a single act or conduct is relied on to satisfy the elements of separate charges can arise in circumstances where multiple offences are manifestations of one criminal enterprise, transaction or episode. In that event, they attract what is commonly known as the "one-transaction rule" which may result in all of the sentences being made concurrent (see R v Faithfull (2004) 142 A Crim R 554 at 558 - 559).

88 However, a sentencing judge must go on to consider whether the application of the one transaction rule would result in an appropriate measure of the total criminality involved in the conduct. If not, the appropriate aggregate result should be achieved, if practicable, by making the sentences cumulative in whole or in part: Mill v The Queen (1988) 166 CLR 59; Pearce (supra). This final step involves the application of the totality principle. That principle requires the total sentence imposed on an offender to bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. Further, when considering whether the principle of totality has been infringed, it is of little importance how the ultimate aggregate is made up (R v Holder & Johnston [1983] 3 NSWLR 245 at 260 per Street CJ).

89 The practical effect of the totality rule is to arrive at an ultimate aggregate sentence that is less than that which would be arrived at by straightforward adding of the terms appropriate for the offences if each were viewed alone: R v Holder & Johnston at 260 per Street CJ. In assessing whether the aggregate of all of the sentences is appropriate for the criminal conduct being punished, the aggregate may be inappropriately long even if the total sentence cannot be described as

(Page 30)

"crushing": Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J; Johnson v The Queen (2004) 78 ALJR 616 at 624.

90 The rationale for the totality principle is said to be that the second sentencing Court may see or assume that the prisoner has made progress towards rehabilitation during the term of the first sentence and that there is not the same demand for retribution where a prisoner has already suffered loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 per Anderson J at 10.

91 The totality principle also applies when a court is required to consider whether sentences imposed should be made concurrent or partially or wholly cumulative with a sentence the offender is serving for some other offence at the time of sentencing: Vlek (supra).

92 Further, the totality principle has been applied where an offender was sentenced some years after the commission of an offence because, during the intervening period, he had been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time: Mill v The Queen (supra). In that event, the offender should receive a sentence which would be consistent with the totality of the sentences he would have received if he had been sentenced for all the offences on the same occasion. In Mill, the offender had committed two armed robberies in Victoria and one in Queensland within a six-week period. He was sentenced to 10 years' imprisonment in respect of the Victorian offences and on his release on parole was returned to Queensland where he was convicted of the Queensland offence and sentenced to imprisonment for 8 years. The delay between the commission of the offence and sentencing was occasioned by the fact that the offences were committed in different States. Otherwise, the offender had not caused or contributed to the delay. The totality principle was applied in analogous circumstances by this Court in Barnes v The State of Western Australia [2004] WASCA 258 where the relevant delay was not caused by the offender.

93 I turn now to the application of the principles to the facts of this case in the context of the grounds of appeal.

Double Punishment/One Transaction

94 On the facts in this case there is a common element in the offences of aggravated burglary and armed robbery. An element of the offence of aggravated burglary with which the applicant was charged is entry into a

(Page 31)

place "with intent to commit an offence" therein. The sentencing Judge (who was also the trial Judge) identified the intended offence as (armed) robbery. The offences actually committed in the place were armed robberies. A conviction for armed robbery requires intent. If the fixing of an appropriate sentence for each offence occurred without regard to the common element, that would result in double punishment. In particular, it would be an error to punish the applicant for having an intention to commit an offence and for its commission. It is clear from the reasons of the sentencing Judge that in fixing the sentence for each offence he did not make any allowance for the common element. If the sentences for the individual offences had properly reflected the common element, that may impact on whether the sentences on those two counts should be made wholly or partially cumulative (Pearce at 624).

95 I turn now to the one-transaction rule. It is said to apply when a number of offences "arise from substantially the same act or same circumstances or a closely related series of occurrences" (R v Brown (1982) 5 A Crim R 404 at 407) or when there is "one multi-faceted course of criminal conduct" (Attorney-General v Tichy (1982) 30 SASR 84 at 93) or if they are considered to be "manifestations of the one criminal enterprise, transaction or episode" (Pearce at 650 per Kirby J). The sentencing Judge classified the three offences as "separate independent transactions". In my respectful opinion, he erred in doing so. Each of the offences is closely connected in nature, time and circumstance and is one multi-faceted course of criminal conduct. Accordingly, contrary to the sentencing Judge's conclusion, each of the offences are part of one transaction. However, this characterisation does not mandate a conclusion that all of the sentences should have been made concurrent. Whether, and if so to what extent, the sentences should be made concurrent depends on the totality principle; the question is what is an appropriate measure of the total criminality involved in the criminal enterprise.

96 Relying on the Mill application of the totality principle, the applicant contended that he should have received a total effective sentence that was consistent with the totality of the sentences he would have received if he had been sentenced for the July 2001 and September 2001 offences at the same time. It is arguable that would result in some degree of concurrency. As the sentences for the July offences were completed at the time the applicant was sentenced for the September 2001 offences, the result is that the total effective sentence for the September 2001 offences is, in effect, wholly cumulative with the total effective sentence for the July offences. If the applicant's contention is correct, the only course would be to reduce the sentences for the September 2001 offences.

(Page 32)

97 However, I am not persuaded the Mill application of the totality principle applies in circumstances where the delay is caused by matters over which an offender has control. If it did, there would be no incentive for an offender to deal with all outstanding offences at the earlier time. Indeed, the applicant's involvement in the September 2001 offences only came to light as a result of DNA testing of the tape used on the female complainant. However, the totality principle may be applied by way of analogy if the rationale for the principle (being assumed progress towards rehabilitation during the term of the first sentence) is borne out in fact by the applicant's post-release conduct.

98 There are aspects of the applicant's conduct after his release on parole for the sentences imposed for the July 2001 offences that demonstrate significant progress towards rehabilitation. The applicant was released on parole on 24 May 2002 which expired on 16 December 2002. The primary cause of the applicant's offending is said to be his illicit drug use for which he received naltrexone treatment in October 2002. Whilst on parole he was required to engage in substance abuse and psychological counselling and undertake urinalysis as directed. Apart from one minor relapse, the applicant abstained from illegal drug use and attended counselling which resulted in the successful completion of his parole order. Further, on 3 July 2003 the applicant was placed on a 12-month community based order for further offences. The evidence does not establish when those further offences were committed. The applicant complied with the order which required, inter alia, substance abuse counselling and urinalysis. He successfully completed the order. The evidence also discloses that the applicant was in employment for at least part of the period following his release on parole.

99 However, it was apparent from the applicant's submissions that at some time after his release on parole he committed offences which included driving without a licence, wilfully misleading a police officer and giving a false name and address. Further, the applicant's counsel at the time of sentencing informed the sentencing Judge that there was an outstanding aggravated burglary and stealing charge which was to be dealt with by the courts in early 2004.

100 Notwithstanding some lapses, the applicant had taken some significant steps towards rehabilitation between his release on parole and when he was sentenced for the September 2001 offences and that was a relevant consideration to be given weight in the sentencing process.

(Page 33)

101 I have concluded the sentencing Judge erred in fixing the sentences for each offence without regard to the common element and in approaching the September 2001 offences as separate independent transactions. However, the central question is whether these errors were material in the sense they caused the exercise of the sentencing discretion to miscarry which requires focus on the question whether a total effective sentence of 10½ years is an appropriate measure of the total criminality involved in the criminal enterprise.

102 In my respectful opinion, the term of 10½ years exceeds an appropriate measure of the total criminality. There are a number of mitigatory factors, the primary one being the applicant's youth at the time of the offences. Other factors include the applicant's willingness to facilitate the interests of justice by making admissions to the police and at trial which had the effect of significantly reducing the issues in contest and the significant progress he had made towards rehabilitation since his release on parole in 2002. On the other hand, the offences are very serious, in particular the armed robbery offences, and the circumstances of those offences are at the high end of the scale of seriousness of crimes of that type. Into the mix is the fact that the applicant's involvement was less than that of the men wearing the balaclavas with whom he was in company. In the circumstances I would not interfere with the sentence of 6 years for the armed robbery offences.

103 The general working guide that is the one-transaction rule would have the sentence for each of the offences being served concurrently. However, a total effective sentence of 6 years would not be an appropriate measure of the total criminality involved in the criminal enterprise because of the added dimension of a home invasion. As already noted, there can be no double punishment for the intention to commit armed robbery (and the associated violence) which has been punished in the sentences for the armed robbery. Avoiding any double punishment and having regard to the mitigating factors to which I have referred, I would impose a sentence of 18 months for the aggravated burglary to be served cumulatively with concurrent sentences for the armed robbery offences, making a total effective sentence of 7½ years. Applying the reduction required by the Amendment Act, the sentence for the aggravated burglary (count 1) will be 12 months and the armed robberies (counts 2 and 3) will be 4 years, making a total effective sentence of 5 years' imprisonment. In the circumstances, it is unnecessary to separately consider the contention that the total sentence was manifestly excessive.

(Page 34)

104 I would grant leave to appeal, allow the appeal, set aside the sentences imposed by the sentencing Judge and impose terms of immediate imprisonment of 1 year on count 1 and 4 years for each of counts 2 and 3. The sentences on counts 2 and 3 are to be served concurrently with each other but cumulatively with the sentence on count 1, making a total effective sentence of 5 years. The applicant will remain eligible for parole.

105 PULLIN JA: This is an application for leave to appeal against sentence. The applicant was convicted after a trial in the Supreme Court on two counts of aggravated armed robbery and one count of aggravated burglary. He was sentenced to 4 years' imprisonment for each of the armed robberies to be served concurrently with each other and a sentence of imprisonment of 3 years was imposed in respect of the aggravated burglary, that sentence to be served cumulatively upon the sentences for the armed robberies. The applicant was made eligible for parole.

106 The application for leave to appeal is out of time and so an application for extension of time is also made.

107 The facts were that on 13 September 2001 the applicant and three others drove to a house in West Midland occupied by a woman in her late 70s and her son, who was aged in his 50s. The applicant and two others forced their way into the house. The two others were wearing balaclavas and one of them was armed with a shotgun. The elderly woman was forced to the floor and the shotgun pointed at her. To stop her screaming, one of the masked men put his hand over her mouth and the applicant tried to put some tape over her mouth. This tape was later found in the house by police and DNA on the tape led to the arrest of the applicant. The woman's son picked up a broom and hit one of the intruders. The shotgun was then held to the son's head and $20,000 in cash demanded. The son produced $130 from his wallet. The applicant then ran at the son and punched him on the right side of the face, causing him to fall onto the bed. While this was happening, one of the intruders had compelled the woman to give out $2700 which was in cash in her bag, some of which belonged to her husband who was living in a nursing home.

108 For reasons which will become apparent later, it is necessary to set out the chronology of events, not only in relation to the charges arising out of the 13 September 2001 home invasion but also in relation to other charges and other sentences which were imposed at an earlier date.

(Page 35)

109 On 13 July 2001 the appellant committed the offences of assault occasioning bodily harm, burglary and deprivation of liberty. On 23 July 2001 the applicant committed some more burglary offences and some other related offences. On 29 August 2001 he was charged with the offences which occurred on 13 July 2001.

110 On 13 September 2001 the offences for which the applicant was sentenced in this case were committed. Some of the applicant's DNA was recovered from the scene of the crime and it was referred off to a laboratory for analysis.

111 On 19 October 2001 the applicant was sentenced in the District Court in relation to the offences committed on 13 July 2001. He was sentenced to a total of 21 months imprisonment. In January 2002 in the Court of Petty Sessions he pleaded guilty to the offences which he had committed on 23 July 2001 and the sentences imposed (the greatest sentence being 6 months' imprisonment) were made concurrent with each other and by reason of s 88 of the Sentencing Act they were also concurrent with the sentences imposed by the District Court.

112 On 26 February 2002 the police received a report from the laboratory about DNA found at the scene of the crimes committed on 13 September 2001.

113 On 24 May 2002 the applicant was released from prison on parole in relation to the District Court and Petty Sessional sentences referred to above. He successfully completed that period of parole.

114 On 23 July 2002 the police interviewed the applicant in relation to the charges committed on 13 September 2001 and he was charged on that day. There was a trial before Murray J and a jury. The applicant was prepared to make various admissions about his involvement in the offence but because he did not admit all of the allegations, a plea of not guilty was entered. He was found guilty as charged.

115 On 16 December 2003 Murray J imposed sentences in the following terms:

"The conclusions to which I have come are these: for the aggravated burglary offence you will be sentenced to 3 years' imprisonment. A very serious burglary would, as you see from the sentence of 3 years' imprisonment, have attracted originally, before the changes to the law that I have mentioned, a sentence in my opinion of some 4 and a half hears' imprisonment.

(Page 36)

Sentences of greater severity than that are commonly imposed for burglaries of this kind.

For the armed robbery with violence committed upon Mrs Balaam, doing the best I can to offer as much mitigation as is possible in relation to that, I impose a sentence of 4 years' imprisonment. I order that sentence to be served cumulatively. I would previously have imposed a sentence of 6 years' imprisonment in relation to that, and even that I think would probably be too light. For the armed robbery with violence upon Mr Balaam I impose a similar sentence of 4 years' imprisonment. I order that sentence to be served concurrently.

The total term, which will date from 18 November 2003, is one of 7 years' imprisonment. The order for parole eligibility means that you will be required to serve 5 years before being eligible for parole and before being able to be released on parole. So it's a severe sentence; I appreciate that. It is reduced to the maximum extent that I am able to do so."

116 The applicant seeks leave to appeal on the following grounds:

"1. That the sentence imposed was manifestly excessive in the circumstances of the case

2. In sentencing the learned trial Judge erred in not properly taking into consideration the totality of the events in relation to the defendant."

117 In argument, the applicant's submissions boiled down to the following points. First, he contended that the overall sentence was manifestly excessive. Secondly, he argued that the police were too slow in detecting his involvement in the offence and that if they had moved more quickly, then he would have been charged, convicted and sentenced when he was still in prison as a result of the sentences imposed by the District Court on 19 October 2001 and in the Court of Petty Sessions in January 2001. He says that in those circumstances the totality principle would have been applied and he would therefore have served part of his sentence in relation to these offences concurrently with the sentences in relation to the earlier offences. He contends that the totality principle should have been applied by Murray J by reducing the sentences he imposed to reflect what would have happened if he had been sentenced on the present charges when he was still in custody on the earlier charges. He points out that for the 13 July 2001 offences he was sentenced to

(Page 37)

21 months' imprisonment and for the 23 July 2001 offences, he was sentenced to imprisonment, which sentences were made concurrent with the 21 months aggregate sentence imposed in relation to the 13 July 2001 offences. The applicant argues that to that has been added 7 years' imprisonment for the home invasion offences committed on 13 September 2001, making a total of 8 years and 9 months' imprisonment which he submits was manifestly excessive when considered by applying the totality principle.

118 Finally, he complains that the one transaction rule has not been observed. He submitted that the sentences for count 1 and count 2 should have been concurrent rather than cumulative.

The individual sentences

119 No complaint is made about the individual sentences imposed in relation to these two offences. In my opinion they were well within the range of proper sentences for these offences.

Totality principle

120 The expression "totality" is used primarily to refer to the effect on an offender of a combination of a number of penalties imposed for different offences and also refers to the overall criminality of the criminal conduct for which the offender is being sentenced: Postiglione v The Queen (1997) 189 CLR 295, A sentencing Judge is required primarily to determine an appropriate penalty for each offence being dealt with but, where those penalties consist of periods of imprisonment, the Judge is also required to have regard to the aggregate and to reach an overall disposition which is just and appropriate. See Pearce v The Queen (1998) 194 CLR 610. The Sentencing Act 1995 allows this to be achieved by ordering sentences of imprisonment to be served concurrently, cumulatively or partly cumulatively and these powers may be exercised to achieve an appropriate result.

121 Usually the totality principle is applied when a court at the same time sentences a prisoner for a number of offences. The Judge is required to consider the overall "criminality" of the offences and whether the aggregate sentence is will be "crushing". Usually the discussion is about the prospective effect of those sentences. Usually past sentences are not taken into account. Thus, if a person over a lifetime has spent many years in prison and comes before a court to be sentenced for new offences, the court does not apply the totality principle by taking into account earlier

(Page 38)

terms of imprisonment when deciding what sentence to impose for the offences then being dealt with.

122 However, there are exceptional circumstances where this can happen in effect. Usually it will happen where due to no fault of the offender the sentencing process for some offences has been delayed. So, for example, in R v Todd [1982] 2 NSWLR 517 the offender in the space of eight days in January 1974 committed three offences in New South Wales and several offences in Queensland. He was apprehended in Queensland and sentenced to 8 years' imprisonment for the offences committed there. Only after he was released on parole was he brought back to New South Wales to be dealt with for the New South Wales offences. This deferral in the processing of the charges in New South Wales was beyond the control of the accused. The sentencing Judge said that he would not take account of the Queensland sentences. It was held that this was an error. Street CJ said at 519 - 520:

"… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

123 This was approved in Mill v The Queen (1988) 166 CLR 59 at 64. A recent application of Todd's case can be seen in R v VJV [2004] NSWCCA 415 where the offender was sentenced for certain sexual offences. During the investigation of those offences, there was information about other offences. There was a delay by the prosecuting authorities in processing the evidence and charging him for the other offences. He was not dealt with for these other offences until he had nearly completed his non-parole term in relation to the first group of sentences. The Court noted that there was no explanation for the delay. As a result, the offender's non-parole period was reduced on appeal.
(Page 39)

124 It seems from these cases that where there has been delay the sentencing Judge should proceed by considering what sentences would have been imposed had there had been no delay: Mill v The Queen (supra) at 66. If the offender had been dealt with without delay and by the application of the totality principle would have gained some reduction in the aggregate sentence, then the court should deal with the case in a way which would produce a result similar to that which would have occurred had there been no delay. In saying this however, it is necessary to show that the totality principle would have been applied had he been sentenced while he was still in prison on the earlier offences. It is also necessary to have regard to subsequent events.

125 The September 2001 offences were not related in time to the offences committed on 13 and 23 July 2001. The July 2001 offences and these offences were not "one episode". See Sulejmani v The State of Western Australia [2005] WASCA 95 at [17]. It was not suggested by counsel for the appellant or by prosecuting counsel at the hearing before Murray J that these earlier offences should be taken into account for totality purposes. In my opinion they should not have been. Even if the appellant had been prosecuted and sentenced while he was in prison for the July 2001 offences, it is my opinion that the present sentences would have been made cumulative on earlier sentences.

126 I should also refer to the prospects of rehabilitation. There are signs that the applicant has made lifestyle changes in the period after he was released on parole in relation to the sentences imposed for the July 2001 offences. However, the sentencing Judge took full account of this information in imposing sentence and it persuaded his Honour that the appellant should be made eligible for parole.

127 As the pre-sentence report indicates, this applicant is a 22 year old recidivist offender with a history of violent and serious offending behaviour. He still has a deep hatred for the male victim. I agree with his Honour when he says that for the robbery involving Mrs Balam, the 4 year sentence was "probably too light". This type of home invasion by the accused, in the company of others, one of whom was armed, and the robberies which involved actual violence were very serious offences. The maximum penalty prescribed by Parliament for robbery is life imprisonment and 20 years for the burglary. If those maxima are to have any relevance the combined sentence of 7 years for the burglary and the two robbery offences is a modest reflection of the overall criminality of this offence even taking into account the mitigating factors. The aggregate sentence is not crushing when viewed against the maximum

(Page 40)

sentences which Parliament has set. Under the "old provisions" (see cl 2(1) of the first schedule to the Sentencing Act) this would have been a sentence of 10½ years. Miles v The Queen (1997) 17 WAR 518 suggested a range of 6 to 9 years' imprisonment for armed robbery (now 4 to 6 years under the new provisions). These were serious armed robberies and it involved violence on people in their home. Added to the robberies was the offence of burglary and that warranted imprisonment in addition to the robbery offences. Viewed in that light the aggregate sentence is not excessive.

The one transaction rule

128 The applicant also claims that the one transaction rule was not applied. It is not a principle of law or sentencing that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode. It is a general rule, "a working rule", that when a number of offences arising out of one transaction or constitute a continuing episode, terms of imprisonment imposed should be made concurrent. A sentencing Judge must however consider whether the overall outcome properly reflects the measure of criminality involved in the conduct. If the effect of wholly concurrent sentences is to impair that result, then the outcome must be adjusted by making sentences cumulative or partially concurrent or partially cumulative: R v Faithfull [2004] 142 A Crim R 554 at [28]. The rule is of limited utility: Sulejmani (supra) [17].

129 The question therefore is whether in these circumstances it was appropriate, as the applicant submits, that counts 1 and 2 should have been made concurrent rather than cumulative. I might add that this also requires a consideration of whether partially cumulative sentences should have been imposed.

130 I repeat that the offences committed on 13 September 2001 involved a very serious home invasion, accompanied by violence perpetrated by the applicant. This type of offence has the capacity to destroy the victim's sense of well-being and security. It disturbs all in the community who read about it. It is important that sentences are imposed in this type of case which have a personal and general deterrent effect.

131 I detect no error in the sentences imposed by his Honour. The process used by his Honour of making the first robbery sentence cumulative on the burglary sentence and the second robbery sentence concurrent on the first robbery offence produced a just outcome.

(Page 41)

132 In my opinion the proposed grounds of appeal have no merit. I would therefore dismiss the application for an extension of time.