The State of Western Australia v Amoore - [2008] WASCA 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- AMOORE [2008] WASCA 65

CORAM: STEYTLER P
PULLIN JA
EM HEENAN AJA

HEARD: 19 FEBRUARY 2008

DELIVERED : 19 MARCH 2008

FILE NO/S: CACR 3 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
TOBY CHARLES AMOORE
Respondent

FILE NO/S :CACR 4 of 2008

BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
RONALD MARK SCOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KENNEDY CJDC
File No  :IND 1302 of 2007, IND 1310 of 2007

Catchwords:

Criminal law - Appeal - Prosecution appeal against sentence - Sentences of imprisonment - Robbery (three counts) and demanding property with threats with intent to extort or gain (Criminal Code s 397(2)) (two counts) - Pleas of guilty - Sentences of 18 months' imprisonment (after reduction by one-third) imposed on each of five counts - Sentences to be served concurrently - Eligibility for parole - Offender since released on parole

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

CACR 3 of 2008 - appeal dismissed
CACR 4 of 2008 - appeal dismissed

Category: D

Representation:

CACR 3 of 2008

Counsel:

Appellant: Mr J Mactaggart
Respondent: Mr S B Watters

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Thames Legal

CACR 4 of 2008

Counsel:

Appellant: Mr J Mactaggart
Respondent: Ms A S Rogers

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Andrew Maughan

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

Ahmad v The Queen [2003] WASCA 234
Attorney‑General v Tichy (1982) 30 SASR 84
Borbil v Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Brown v Lynch (1982) 5 A Crim R 404
Chan (1989) 38 A Crim R 337
Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
Dicker v Asherton (1974) 65 LSJS 150
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
House v The King (1936) 55 CLR 499
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
LJM (A child) v The State of Western Australia [2005] WASCA 172
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Milesv The Queen (1997) 17 WAR 518
Mills v The State of Western Australia [2007] WASCA 118
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Cifuentes [2006] QCA 566
R v Clarke [1996] 2 VR 520
R v Drinkwater [2006] QCA 82
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Michael Lenard; R v Michael Fail [2006] NSWCCA 345
R v O'Mally [2005] NSWCCA 166
R v Osenkowski (1982) 30 SASR 212
R v Scanlon (1987) 89 FLR 77
R v White [2002] WASCA 112
Richardson v The State of Western Australia [2005] WASCA 92
Ruane v The Queen (1979) 1 A Crim R 284
Ruich v The State of Western Australia [2006] WASCA 241
The State of Western Australia v ABM [2004] WASCA 90
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Garlett [2007] WASCA 274
The State of Western Australia v Houston [2005] WASCA 167
The State of Western Australia v Sabek [2005] WASCA 207
The State of Western Australia v Wells [2005] WASCA 23
Wilhelm (1988) 39 A Crim R 469
Winmar v The Queen [2000] WASCA 363

STEYTLER P: I have had the advantage of reading the reasons for decision prepared by Pullin JA and EM Heenan AJA. I agree with EM Heenan AJA that both State appeals against sentence should be dismissed.
The facts giving rise to the respondents' convictions on three counts of robbery in company and two counts of extortion are set out in the other judgments. In a nutshell, the two respondents and a third man believed, unjustifiably, that they were owed $45,000 by the complainant. They went to the complainant's business premises on 13 April 2007. They demanded repayment of what they claimed was due to them. They threatened the complainant with violence if he did not repay the amount claimed. As a result, the complainant handed over $5,000. They returned on 17 April 2007. Again, the complainant was threatened with violence. He handed the three men $3,000. They returned for the third, and last, time on 20 April 2007. Again, the complainant was threatened with violence. This time the three men were given $1,000. These events gave rise to the three charges of robbery in company.
During this third visit on 20 April 2007, the three men told the complainant that they would return on the following Monday to obtain a further $6,000. They also told him that he was to pay an additional $10,000 on the following Friday. The complainant was threatened with violence if he did not meet these demands. These threats gave rise to the two charges of extortion. The appellants were arrested shortly after making the threats.
Although these events gave rise to five different offences, it will be apparent that those offences arose out of a single course of conduct, extending over a week, in which, by threats of violence, the respondents and their co‑offender obtained part of what they claimed was owing to them and demanded payment of part of the balance of the amount claimed.
The respondent Amoore was 37 years old. He had a criminal record. However, he had not previously been imprisoned. The respondent Scott was 46 years old. He, too, had a criminal record. However, he had not offended in any serious way for a long time. Both men pleaded guilty to the offences charged. Those pleas were not made at the first opportunity. However, they were made some four months in advance of the date set for trial.
Each of the respondents was sentenced to a term of 18 months' imprisonment on each count, with eligibility for parole. The sentences were ordered to be served concurrently. By the time of the hearing of the appeal, one of the respondents had been released on parole.
There are three grounds of appeal. The first is that the sentencing judge imposed sentences that were manifestly inadequate in that the individual sentences and the head sentence failed to reflect adequately the serious nature of the offences. The second ground is that the sentencing judge erred in treating the acts of the respondents as part of one transaction and by failing to accumulate or partly accumulate any of the sentences imposed. The third ground is that the sentencing judge erred in giving undue weight to factors personal to the respondents.
It is trite that, in appeals against sentence (whether on grounds of excessiveness or inadequacy), the following principles, enunciated in House v The King (1936) 55 CLR 499, 505 are applicable:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J), 329 (Gaudron & Gummow JJ).)
It is also trite that the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672. In Dinsdale, Kirby J said [58]:
Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it … As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention.
State appeals are in a special category. It is unnecessary to set out the relevant principles. These have been referred to in the other judgments. It is enough, for present purposes, to stress that it has been held that appeals by the State should be brought only in 'the rare and exceptional case' (Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson & Gaudron JJ)) to establish some point of principle. One example is a case in which the sentence imposed 'reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle': R v Clarke [1996] 2 VR 520, 522; Everett, 300. Another example is when it is necessary to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: Clarke (522), R v Osenkowski (1982) 30 SASR 212, 213 (King CJ, White J concurring).
As to ground 1, a review of the sentences imposed in other cases (these are referred to in the judgments of Pullin JA and EM Heenan AJA) reveals that the sentences imposed in this case were lenient. That was so notwithstanding that the respondents pleaded guilty, that they held a genuine, if unjustified, belief that the money was owed to them by the complainant and that no actual violence was used. However, I am not persuaded that they were so lenient, even bearing in mind that they were ordered to be served concurrently, as to justify the intervention of this court on a State appeal.
The State's contention was that the sentences imposed were manifestly inadequate. However, as EM Heenan AJA has said, there was no suggestion that the sentences reveal some wider problem in respect of sentencing for offences of this kind, nor that the sentences imposed were the product of some idiosyncratic view of the sentencing judge. It was not expressly suggested that the sentences imposed were so disproportionate to the seriousness of the offending as to shock the public conscience. Even if this was implicit in the submissions that were made, I am not persuaded that there is anything in the few cases to which we were referred, or in those referred to by Pullin JA and EM Heenan AJA, that would bear that submission out. Consequently, although, as I have said, the sentences seem to me to have been lenient, I am not persuaded that any sufficient basis has been shown for setting them aside on a State appeal.
As to ground 2, it would, no doubt, have been open to the sentencing judge to impose sentences that were partly cumulative. However, there was nothing that obliged her to do so. It is not clear from the sentencing judge's reasons whether she ordered that the sentences be served concurrently because she regarded them as part of one ongoing transaction or episode, or for totality reasons, or for a combination of those reasons.
It is important, in this respect, to emphasise that the so‑called 'one transaction' or 'continuing episode' rule (discussed by McLure JA in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554) is nothing more than a 'good working rule': Ruane v The Queen (1979) 1 A Crim R 284. The 'rule' is said to apply when a number of offences 'arise out of substantially the same act, circumstance or series of occurrences' (Brown v Lynch (1982) 5 A Crim R 404, 407), or in a case in which there is 'one multi‑faceted course of criminal conduct' (Attorney‑General v Tichy (1982) 30 SASR 84, 93) or one in which they are considered to be 'manifestations of the one criminal enterprise, transaction or episode' (Pearce v The Queen (1998) 194 CLR 610, 650 (Kirby J)). Just as there is no absolute requirement that a sentencing judge should impose concurrent terms in a case involving multiple offences constituting one transaction or a continuing episode, it is not a principle of law that, if the offences are properly considered not to amount to one transaction or a continuing episode, there can be no concurrency. The task of a sentencing judge, in each case, is to consider whether the total sentence imposed results in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; Postiglione v The Queen (1997) 189 CLR 295, 307 ‑ 308 (McHugh J). There is, in any event, often no bright line between multiple offences forming part of one continuing episode and offences which cannot, or cannot entirely, be categorised in that way. In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, Gleeson CJ said [5], in the context of an appeal against a decision to impose cumulative sentences:
Ultimately, justice requires due consideration of whether, and to what extent, the appellant 'was truly engaged upon one multi-faceted course of criminal conduct', and whether the sentences imposed properly reflected the outcome of that consideration.
I have said that in this case the five offences were committed on three separate occasions over a period of around one week. However, it was nevertheless a relevant sentencing consideration that all of the offences were committed in pursuance of the respondents' single,

misguided, belief that they were entitled to recover the sum of $45,000. In that circumstance, and taking into account totality considerations, although I might have exercised the discretion differently I am not persuaded that the order that the sentences be served concurrently reveals any error of principle.

As to ground 3, I agree with Pullin JA, for the reasons given by him, that that ground has no substance.
I would dismiss both appeals.
PULLIN JA: These are State appeals against sentence.
The respondents were each charged on indictment with three counts of robbery in company and two counts of extortion which read as follows:
(1)On 13 April 2007 at Welshpool [the two respondents and one other] stole from [the complainant], with threats of violence, a sum of money, namely, $5,000.00 the property of [the complainant]
And that [the two respondents and one other] were in company with each other.
(2)On 17 April 2007 at Welshpool [the two respondents and one other] stole from [the complainant], with threats of violence, a sum of money, namely, $3,000.000 the property of [the complainant]
And that [the two respondents and one other] were in company with each other.
(3)On 20 April 2007 at Welshpool [the two respondents and one other] stole from [the complainant], with threats of violence, a sum of money, namely, $1,000.00 the property of [the complainant]
And that [the two respondents and one other] were in company with each other.
(4)On 20 April 2007 at Welshpool [the two respondents and one other] with intent to extort or gain, orally demanded that [the complainant] pay to them a sum of money, namely, $6,000.00, without reasonable cause and with threats of injury or detriment if the demand was not complied with.
(5)On 20 April 2007 at Welshpool [the two respondents and one other] with intent to extort or gain, orally demanded that [the complainant] pay to them a sum of money, namely, $10,000.00, without reasonable cause and with threats of injury or detriment if the demand was not complied with.

The statutory penalty for robbery in company was 20 years' imprisonment and for extortion, 14 years' imprisonment.
The respondents pleaded guilty and were sentenced to 18 months' imprisonment on each count, to be served concurrently, with eligibility for parole. An order for $6,000 compensation was made.
The facts are not in dispute but they are unclear on some points.
Each of the respondents advanced $15,000 to a person by the name of Spack to invest in a new business that involved importing high performance motor parts into Australia. The other person charged with the two respondents invested $5,000 and another party invested an additional $5,000. The respondents understood that they were to have obtained an interest in the business to be, as counsel for the respondent Amoore said during sentencing submissions, 'legitimate business partners and directors of that company'. The money was advanced in January 2006. Then in mid‑2006, the respondent Amoore discovered that Spack was using heroin and was proving difficult to contact. Eventually Spack told the respondent Amoore, that he had invited the complainant also to be a partner in the business. Although the facts on this point are a little unclear, it appears that Spack in selling the share in the business to the complainant, sold the same share which he had agreed to sell to the respondents (and the others involved with the respondents). Spack did not reveal this to the complainant. The complainant was the owner of another business and Spack led the respondents to believe that the complainant had been 'siphoning off parts … and taking advantage, running some of his debts from' his business into the business into which the respondents believed they had gained an interest. However, counsel for the respondent Amoore during sentencing, conceded that it was not possible to believe everything that Spack had said to the respondents.
The end result is that the respondents decided that they would demand from the complainant the payment of a sum equivalent to the amount they (and their associates) had paid to Spack. As a result, on the dates mentioned in the indictment, the two respondents and another man attended at the complainant's business premises. There were three relevant attendances. The first was at 4.30 pm on Friday 13 April 2007. The two respondents and the other man confronted the complainant, made threats of violence and in return the complainant handed over $5,000. This was the subject of the first robbery count.
At 1.40 pm on Tuesday 17 April 2007, the two respondents and the other man returned to the complainant's premises and made threats of violence again. They returned at 3 pm that day and the complainant handed over $3,000. This was the subject of the second robbery count.
On 20 April 2007, the complainant went to the police and when at 2.50 pm on Friday 20 April 2007 the two respondents and the other man attended again at the Welshpool premises of the complainant, their attendance was filmed by police and what was said was covertly recorded. One of the three men attending wore a black t‑shirt which had on it a God's Garbage insignia, that being the insignia of a motorcycle gang. Threats were again made and the complainant was robbed of $1,000. That was the subject of count 3.
The respondent Amoore said that they would return on the following Monday and demanded that the complainant then had to give them a further $6,000 and that on the following Friday they wanted another $10,000. Those demands were the subject of the extortion charges the subject of counts 4 and 5. Threats were made by the offenders that they would 'clean out' the complainant's business, they would bash the complainant, they would 'tear [his] throat out', and that they would dispense the same treatment to the complainant as dispensed to another man 'at Pro Performance Cycles', which involved a serious assault with a gearbox to a man's head. These threats and other things said to the complainant put the complainant in fear that harm would come to him or to his business. The accused and the other man were arrested at the scene on 20 April by members of the Tactical Response Group.

The respondents pleaded guilty some months before the trial date. This was not at the earliest opportunity, but sufficiently early for the sentencing judge to indicate that she would take the plea of guilty into account as a mitigating circumstance.

Sentencing judge's remarks

The sentencing judge noted that neither man displayed a high degree of intelligence, noted favourable antecedents, noted that Mr Amoore (who was 37 years old) had never been to gaol before, and noted that the respondent Scott, had a 'very serious matter' in his record, but that it was 'quite a long time ago'.
Her Honour then concluded that the offences warranted imprisonment and then indicated that the 'starting point' in relation to each count was 2 1/2 years' imprisonment, but that was then reduced in accordance with the transitional provisions by one‑third, which reduced the sentence on each count to 18 months. Her Honour then sentenced each of the respondents to 18 months' imprisonment on each count, all sentences to be served concurrently. They were made eligible for parole and the sentence was ordered to commence on 20 April 2007.
The orthodox, but not mandatory, method of sentencing is to fix an appropriate sentence for each offence and aggregate them before determining concurrency and then finally applying the totality principle. See Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26]. In this case her Honour did not say whether she was following the orthodox course. However, in the absence of any indication to the contrary, it may be assumed that her Honour considered that the sentence imposed for each offence was the appropriate sentence for that offence.

The State appeal

There are three grounds in the State's case in this appeal. The first is that the sentences imposed in relation to both offenders was manifestly inadequate in respect of the individual sentences and in respect of the head sentence; secondly, that the learned sentencing judge erred in treating the acts of the respondents as one transaction and making all the sentences concurrent and failing to accumulate or partly accumulate any of the sentences and; thirdly, that undue weight was given to factors personal to the respondents, having regard to the seriousness of the offences, the difficulty in detecting crimes of extortion and robbery accompanied by extortion and the need to give paramount consideration to general deterrence in cases where these crimes are committed.

Principles governing appeals against sentence

In any appeal against sentence, an appellate court is not entitled to intervene merely because it would have exercised a sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] ‑ [4]. It will be unreasonable or unjust if it is manifestly excessive or manifestly inadequate. The sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.

Principles governing State appeals

Special principles apply to State appeals against sentence. They are detailed in a number of cases. See Everett v The Queen (1994) 181 CLR 295, 299 ‑ 300; Dinsdale v The Queen [61] ‑ [62]; The State of Western Australia v Houston [2005] WASCA 167 [52] ‑ [54] (Steytler P) and The State of Western Australia v Garlett [2007] WASCA 274 [17]. Steytler P discussed these principles in detail in The State of Western Australia v Collier [2007] WASCA 250 between [18] and [23]. It is not necessary to repeat the details of the principles again. It is sufficient to note that State appeals are supposed to be brought in rare and exceptional cases, usually to establish some matter of principle and that when a court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy. The reference to 'a matter of principle' must be understood as encompassing what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards: Everett's case, 300 (Brennan, Deane, Dawson and Gaudron JJ).
In The State of Western Australia v ABM [2004] WASCA 90, Wheeler J, Malcolm CJ agreeing, said at [16]:
Even where an appellate court is of the view that a sentence imposed demonstrates some error of principle, or some manifest inadequacy, it does not follow that, in relation to a State appeal, it will necessarily allow the appeal. It will do so only where it appears that it is necessary to lay down principles for the guidance of the exercise of sentencing discretion, or to correct idiosyncratic views of individual Judges, or to correct a sentence which is so disproportionate as to shock the public conscience, or otherwise where it is necessary in order to ensure that appropriate sentencing standards are maintained and there is public confidence in the administration of justice (cf R v Osenkowski (1982) 30 SASR 212 at 212‑3).
Sometimes a judge's sympathies are excited by the circumstances of the offender or the offence which may lead the judge to show mercy by imposing a lenient sentence. See Colliers' case [21] (Steytler P), referring to what was said in R v Osenkowski (1982) 30 SASR 212, 212 ‑ 213. However, this is not a case where a judge's sympathy could be excited in any way.

The State's submissions

The submissions on behalf of the State were remarkable, in that no reference was made to any cases in this State to indicate the range of sentences customarily imposed in Western Australia for either of the two offences, ie aggravated robbery and extortion. It is unsatisfactory for any party to an appeal, contending that a sentencing judge imposed a sentence that was outside the range of sentences customarily imposed and therefore manifestly inadequate or manifestly excessive, to do so without making any effort to put before the court material showing what that range of sentences might be. There may be rare cases where there is no evidence of a range of sentences, but this is not one of those cases.
The State referred only to a Queensland case R v Cifuentes [2006] QCA 566 which reviewed numerous authorities relating to the ranges of sentences imposed for the crime of 'extortion and associated crimes' in Queensland. No cases dealing with extortion in this State were referred to and no cases dealing with robbery in company were referred to at all.

Submissions for the respondents

Counsel for the respondents did refer to a number of cases showing sentences imposed on some other occasions in Western Australia in relation to extortion and robbery offences, namely, Wilhelm (1988) 39 A Crim R 469 (extortion); Mills v The State of Western Australia [2007] WASCA 118 (robbery and extortion); Ahmad v The Queen [2003] WASCA 234 (extortion); Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 (robbery) and Winmar v The Queen [2000] WASCA 363 (robbery). They also referred to the principles concerning State appeals, acknowledged that there were aggravating factors, emphasised the mitigating factors and submitted that the sentence was not manifestly inadequate.

Nature of the charges

The offences involved three offences of aggravated robbery associated with the less serious offence of extortion. To describe the offences compendiously as the State has done in its written submissions, as 'extortion and associated offences', is to discount the seriousness of the robbery offence and to treat it as incidental to the offences of extortion. They are quite different offences in terms of penalty.

Extortion offences

The Cifuentes case which was referred to by the appellant, does contain a list of over 14 Queensland cases dealing with charges of extortion with a penalty - 14 years - which is the same as the penalty for the extortion offences in this case. However, in examining the sentences in Cifuentes, it is necessary to bear in mind that in this State, after the transitional provisions, there has been a reduction in sentences by one‑third. Thus, in comparing the sentences in Cifuentes with the sentence imposed in this case, it is appropriate to compare them to what the sentencing judge in this case said was the 'starting point', that is 2 1/2 years (before applying the transitional provisions).
In Cifuentes, the cases referred to show a range of sentences between 1 year to 7 years. (In fact, one of the sentences was a 3 year sentence suspended after 4 months). However, putting aside what appear to be the exceptional cases at the top and the bottom of the range, the range seems overwhelmingly to be a range of between 3 to 5 years. Two of the sentences were for 3 years, one was for 3 1/2 years, one was for 4 years and three were for 5 years. (I ignore the result in R v O'Mally [2005] NSWCCA 166 which was referred to in Cifuentes' case, because that was a charge under legislation which provided a much lower maximum penalty).
In this State, the case of Mills is relevant because of some similarities in the facts. The sentence for the offender convicted of extortion was 2 years, but converting it to pre‑transitional provisions, that would have equalled 3 years. That is consistent with the statement in Thomas, Principles of Sentencing (2nd ed, 1979) 146, which reads:
Most cases of blackmail which came before the Court fall into one of two categories - demanding money under a threat to expose or accuse the victim, and demanding money under an immediate threat of violence. Cases in the first category are almost invariably treated seriously and will often attract a sentence of three years' imprisonment even where there is substantial mitigation.
The text refers to sentences at a higher level where threats are made over a period of time with no mitigation. The author continues that the second category of blackmail demanding money under the threat of immediate violence or damage to property, is analogous to robbery. In Carter, Australian Sentencing Digest (1985) 517 ‑ 521, the cases listed show the sentences in 13 cases. Excluding the two lowest and the two highest sentences, it shows that the range is between 3 and 6 years, with the usual sentence being 3 years or more. In Wilhelm, reference was made to the above passages in Thomas and Carter. However, in Wilhelm, a sentence of a fine was set aside and a sentence of 9 months' imprisonment imposed. This was undoubtedly lenient because it was a Crown appeal.
The sentences for extortion of 18 months (with a starting point of 2 1/2 years) were therefore lenient sentences but they do not reach the point of being manifestly inadequate.

Aggravated robbery

In Miles v The Queen (1997) 17 WAR 518, the Full Court stated that in cases of armed robbery, the usual range of sentences fell between 6 and 9 years. This authority has been reaffirmed more recently in The State of Western Australia v Wells [2005] WASCA 23 where it was noted that after the transitional provisions this must now be regarded as a range of between 4 to 6 years.
The question then is whether the range normally applicable to cases of armed robbery are of any relevance at all to a case like this where the charge is robbery aggravated by the fact that the offenders were in company. The answer seems to be that it will be a useful initial reference point. In Mills, which involved an aggravated robbery offence (and not armed robbery), reference was made (at [15]) to the range of sentences referred to in Miles.
Mills was the case of an appeal against the excessiveness of the terms of imprisonment imposed on two offenders. The sentences were set aside and one appellant was resentenced to 4 years 4 months' imprisonment, which was 6 years 7 months in pre‑transitional terms, and the other to 3 years 4 months, which was 5 years in pre‑transitional terms. Mills is of relevance because it involved, in the case of one offender, the same combination of offences as here, namely aggravated robbery and extortion. In Mills, there was a factor which made the offences more serious. It was that the victim was subjected to some violence; he was punched, but as McLure JA noted, the actual violence was 'minimal' [13]. Another slight difference was that one of the appellants in Mills was an enforcer who had no claim to the money which was being demanded of the victim. (The other offender claimed he was owed the money). However, the fact that the respondents in this case were not merely enforcers, but who considered that they had some basis for a claim to the money being demanded, is a very minor point of mitigation; if it is a point in mitigation at all. A person who robbed a bank would not be successful in putting forward as a mitigating fact, the fact that the offender considered that the bank owed the offender money. There was another factor, which made this case more serious than Mills. It was that this case did not involve a single incident, but a series of incidents involving robberies and extortion threats carried out over the period of a week.
In Damiani v The State of Western Australia, McLure JA (Roberts‑Smith JA and Pullin JA agreeing), allowed an appeal concerning aggravated robbery. The offender committed offences while in an amphetamine induced psychotic state. He was not in company with other offenders. He had never been to prison before and the appropriate sentence for one aggravated robbery charge was considered to be 4 years in pre‑transitional terms and in relation to the other count of aggravated robbery, 3 years in pre‑transitional terms.
Richardson v The State of Western Australia [2005] WASCA 92 was a case of aggravated robbery involving an opportunistic snatching of a wallet from a person at a bus stop, which attracted a sentence in post‑transitional terms, of 4 years' imprisonment. In both Damiani and Richardson, there was some violence, in the case of Damiani a kick and some punches, and in the case of Richardson, the victim held on to the wallet and was dragged some distance along the road by the car in which the offenders were driving.
Winmar v The Queen [2000] WASCA 363 involved a robbery offence, the offenders (a male and female) being in company but not armed. The offenders purchased heroin for $50 and then took that money back from the vendor. It is difficult to gain any further understanding about the facts from the reasons. The appellant (the male) was sentenced to 4 years' imprisonment (in pre‑transitional terms). The appeal was on parity grounds which failed.
These cases suggest that in pre‑transitional terms, a sentence in the range of 4 to 6 years is the type of sentence expected for aggravated robbery involving actual violence. It would therefore be reasonable to conclude that robbery in company but unattended by actual violence would attract a lesser sentence of between 3 to 4 years in pre‑transitional terms.
Thus, in the case of the robbery offences, the sentences of 2 1/2 years in pre‑transitional terms for the robbery charges were not only lenient but manifestly inadequate. As a result, I would uphold ground 1 in relation to those sentences.
However, even if I am wrong in concluding that the sentences for robbery were manifestly inadequate, there is the matter raised in ground 2, which alleges that the learned sentencing judge erred in treating all offences as being part of one transaction.

Whether there was one transaction

As indicated, the sentencing judge made all sentences concurrent. The second ground of appeal alleges that in the circumstances this was an error and that her Honour erred in treating the acts of the respondents as one transaction and in failing to accumulate or partly accumulate any of the sentences. The learned sentencing judge expressly stated that she thought she could regard the offences as having been part of one transaction.
The question about whether to make sentences for more than one offence cumulative or concurrent arises at two of the three stages in the sentencing process for multiple offences. As already mentioned, the orthodox approach is to determine the appropriate sentence for each offence, then to assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally, to review the total sentence to be imposed by reference to the principle of totality.
At the second stage the relevant principle is what is variously described as the 'one transaction' or 'continuing episode' rule. This working rule is that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences will usually be made concurrent: Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343 [11] ‑ [12] (McLure J). See also Borbil v Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 and R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. See also Dicker v Asherton (1974) 65 LSJS 150, 151 (Wells J) and LJM (A child) v The State of Western Australia [2005] WASCA 172 [9]. In Johnson, Gleeson CJ [5] said when discussing an appeal against the decision to impose cumulative sentences that:
Ultimately, justice requires due consideration of whether, and to what extent, the appellant 'was truly engaged upon one multi‑faceted course of criminal conduct', and whether the sentences imposed properly reflected the outcome of that consideration.
The robbery offences in this case occurred on different days and each attendance required the formation of an intention on the part of the appellants to attend at the victim's premises to rob him of money. The extortion offences were different; they involved demands for payment of amounts in the future. I recognise however, that distinctly different offences have sometimes been treated as related for the purposes of concurrency, if they were committed within a short period of time: R v Scanlon (1987) 89 FLR 77; Ruich v The State of Western Australia [2006] WASCA 241 [19].
What happened here cannot be regarded as one transaction or a continuing episode. Superficially, it can be argued that these offences were part of a continuing episode in the sense that the offenders claimed that payment of $45,000 and kept returning, collecting, as it were, instalments of that one sum of money. The inference might even be drawn that if they had been given $45,000 on the first occasion they would not have returned and that in those circumstances there would have been only one robbery. However, that is to treat the offenders as having an entitlement to collect the $45,000 from the complainant. That is not a proper analysis of what happened. There was nothing in the facts to establish that the offenders had any legal justification for demanding money from the complainant. This was a case of three separate robberies involving three attendances. The fact that they decided to claim $45,000 from the complainant does not turn what happened into one episode. Just because a person robs a victim and says they will return to rob the victim again, does not turn separate robberies into one episode.
It is possible to treat the three offences which occurred on 20 April as part of the same episode because the robbery and the demands for more money occurred during the one visit and the order that the sentences in relation to those offences, namely the robbery of $1,000 and the extortion offences, be served concurrently can be justified. This is so even though McLure JA in Mills (Steytler P agreeing) considered that the extortion offence involved 'additional conduct that increases the culpability of the offending as a whole such as to justify total cumulation' [17]. It was only at the stage of considering totality issues that an order for partial cumulation was made in that case.

In my opinion however, there was no justification for making the sentences for the robbery offences on 13 and 17 April entirely concurrent with the sentences on the 20 April offences. The offences were not part of one transaction and not part of a continuing episode and the failure to accumulate the sentences to some degree, does demonstrate an error of principle. Ground 2 should be upheld.

Whether undue weight given to personal factors

The third ground of appeal involves a contention that the learned sentencing judge erred in giving 'undue weight' to factors personal to the respondents, having regard to the seriousness of the offences and difficulty in detecting crimes of extortion and robbery accompanied by extortion and having regard to the need to give paramount consideration to general deterrence in cases where these crimes are committed.
There can be no doubt that these types of offences are serious, there is a difficulty in detecting them and general deterrence is an important consideration in sentencing. It is true that her Honour's observations and the manifestly inadequate sentences tend to support the State's contention that undue weight was given to factors personal to the respondents, having regard to the seriousness of the offences. However, the contention that that 'undue' weight was given to a factor mentioned during the sentencing is, and remains, a matter of unproved assertion. I would dismiss ground 3.

Disposition of appeal

Having upheld grounds 1 (in part) and 2, it is then necessary to decide whether the appeal should be allowed and the respondents resentenced. Section 31(4) Criminal Appeals Act 2004 (WA) confers a discretion on the Court of Appeal. It states that the Court of Appeal 'may' allow the appeal if, in its opinion, a different sentence should have been imposed. Section 31(4) is different from s 30 which is a section dealing with conviction appeals. Section 30 provides that the court 'must allow the appeal' if in its opinion there was inter alia a miscarriage of justice. (This is subject of course to the proviso that the appeal may be dismissed if there is no substantial miscarriage of justice).
The discretion conferred in s 31(4) is a reflection of what was said by the Full Court in The State of Western Australia v ABM, in the passage quoted earlier in this judgment; namely, that the demonstration of an error of principle does not automatically result, in a State appeal, in an order that the appeal should be allowed.
This is not a case where it is necessary for this court to establish some point of principle for the guidance of sentencing judges. The sentencing principles in this case are all well known. There is nothing in this case to indicate that the sentencing judge has an idiosyncratic view of this type of offence. The only question is whether the sentence was so inadequate as to shock the public conscience or whether the appeal should be upheld to ensure that appropriate sentencing standards are maintained and that there is public confidence in the administration of justice.
The sentencing judge regarded the conduct of these offenders as 'amateurish', which expression tends to convey the impression that the offences were not very serious. The offences were very serious. The standover tactics displayed by these offenders and captured on video, was conduct which was accompanied by language threatening violence which must have been disturbing to the victim. The conduct was conduct of men who were associates of a motorcycle gang. They clearly wished to convey the message that they were so associated. One of them wore a God's Garbage motorcycle gang t‑shirt to convey that message.
The sentencing judge took into account as the mitigating factors the plea of guilty and the respondent's antecedents. Her Honour took a favourable view of their criminal records. Her Honour said of the respondent Amoore:
You have never been to gaol before in your whole life, and you have never done anything before that even warranted you going to gaol, even though you certainly have not led a blameless life.
It is true that Amoore had not been to prison. However, his record runs from 1989, when he was about 18 years old, to 2007. He has been sentenced to suspended prison terms on two occasions in 2002 for drug offences, he was convicted in 1994 of assault occasioning bodily harm and was placed on probation and in 2007 he was fined for possession of a prohibited weapon. As to the respondent Scott, his record was not contained within the appeal books but her Honour did note that he had a 'very serious matter' in his record, but that it was 'quite a long time ago'.
After taking into account all of the circumstances favourable to the respondents which were mentioned by the sentencing judge, it is my opinion that the sentences for the robbery offences failed to meet appropriate sentencing standards, with the result that public confidence in the administration of justice would be disturbed by these sentences. Even if I am wrong about that, error was involved in treating the offences as one transaction, resulting in a manifestly inadequate total sentence. As a result the appeal should be upheld and the respondents resentenced.

Result

A question was raised at the hearing about whether the fact that the respondents are now out of gaol on parole should be taken into account when resentencing. In Wells the offender, who was an 18‑year‑old Aboriginal man, had served 3 months in prison before he was sentenced. He was then released from custody on an intensive supervision order by the sentencing judge. On a State appeal the non‑custodial order was set aside and the offender was then gaoled for 12 months. There was no suggestion in the reasons in that case that the offenders' conduct after the sentence and before resentencing should influence the outcome. For my part I would have thought that good behaviour of an offender who has been released on parole before being resentenced, is a relevant factor in resentencing (as to which see s 31(2) of the Criminal Appeals Act). I have

taken this into account in this case along with other material submitted by the respondents.

I would set aside the sentences for the robbery offences, that is, set aside the sentences in relation to counts 1, 2 and 3. I would not interfere with the sentences imposed in relation to the extortion charges.
The robbery offences warranted a 4 year sentence in pre‑transitional terms but bearing in mind the need for a lenient approach in State appeals, the appropriate sentences for the robbery charges in pre‑transitional terms should be 3 1/2 years. Taking into account the transitional provisions, the sentences for the robbery offences should therefore be 2 years 4 months.
At the second stage of sentencing, my conclusion would be that the sentences for the two extortion offences and the robbery offence which occurred on 20 April, should be served concurrently. The sentences for the two earlier robbery offences would justify an order that they be served cumulatively which would make an aggregate term of 7 years.
However, at the third stage of sentencing, when applying totality principles, I consider that an overall sentence of 3 years (in post‑transitional terms) would reflect the overall criminality involved in these offences and would not be a crushing sentence.
That can be achieved by ordering that the sentences for counts 1 and 2 (the earlier robbery offences) be served concurrently and commence 8 months after the commencement of the sentences imposed for counts 3, 4 and 5. The sentences for counts 3, 4 and 5 should be taken to have commenced on 20 April 2007. Both offenders should be made eligible for parole. The result of that is that the minimum term they must serve in prison is 18 months. The compensation order should not be interfered with.
EM HEENAN AJA: The facts leading to the conviction of the two respondents upon their pleas of guilty, and the details of the proceedings before her Honour Chief Judge Kennedy, the learned sentencing judge, and her Honour's reasons are fully described in the reasons for decision of Pullin JA which I need not repeat.
The only feature of these sentences suggested by the appellant to warrant the bringing of a prosecution appeal against sentence in 'the rare and exceptional case' (Everett v The Queen (1994) 181 CLR 295, 299), or to lead this court to allow the appeal and re‑sentence the offenders because of a failure of the court at first instance properly to exercise its

discretion, Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 is the submission that these sentences were manifestly inadequate for the disposition of the offences committed.

There was no suggestion that some point of principle concerning sentencing for offences such as these, or generally, was involved in either appeal, or that it was necessary for this court to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 310. Nor was it submitted that these sentences were the product of some idiosyncratic view of an individual judge, or that they were so disproportionate to the seriousness of the crime as to shock the public conscience: R v Osenkowski (1982) 30 SASR 212, 213. Further, it was not submitted that there was any lack in uniformity between these particular sentences and other sentencing trends established in this state or elsewhere for these or comparable offences: Everett (306).
It is important to recognise that state appeals against sentence are in a special category, the principles for which have been established in a series of decisions including: R v Clarke [1996] 2 VR 520, 522 and by this court in The State of Western Australia v Houston [2005] WASCA 167 [52] (Steytler P). In Houston, Steytler P cited with approval the observations of King CJ in R v Osenkowski (212 ‑ 213):
[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.
In this case the court was taken to a series of decisions dealing with sentences imposed for crimes of extortion or involving components of extortion or attempted extortion. Many of these were reviewed comprehensively in the decision of the Court of Appeal in Queensland in R v Cifuentes [2006] QCA 566.
Once adjustment is made for the compulsory reduction by one‑third of a sentence of imprisonment which would otherwise be imposed by a court before the application of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), it can be seen that these sentences, amounting to 2 years and 3 months' imprisonment in the regime before that change in legislation, were not outside the range of sentences which have been imposed for comparable offences in recent times.
Other authorities since R v Cifuentes, including decisions in this State, show that there is a considerable variation in the sentences imposed for crimes involving extortion or elements of extortion. Often the specific sentences which are imposed for extortion offences are imposed in combination with sentences for other offences so that other considerations come into play. Four other such cases were referred to in the course of argument on the hearing of this appeal.
First, in R v Drinkwater [2006] QCA 82, an appeal against a sentence of 6 years' imprisonment for extortion, wilful damage and attempted arson was dismissed. The appellant in that case had no previous criminal record and had a good history of employment. Nevertheless, his offending had involved pouring petrol on the victim's car, throwing petrol bombs at the complainant's house and pouring diesel over his fence. Thereupon he demanded $55,000 to be paid by the victim and threatened to 'go and see' the victim's daughter. Keane JA rejected a submission that the sentence of 6 years was at the very top of the range of sentences for extortion and should only be reserved for offenders with a substantial record of previous offending. Keane JA had regard to the particular elements of the offence observing:
[D]eliberate, brutal, planned and persistent criminality [was] involved in the present case, and the terrifying effect which it must have had on the complainant and his family[.] I consider that the need for general and personal deterrence amply supports the sentence imposed. The objective criminality of the applicant's conduct, and his lack of remorse, are such that the circumstance that he has no criminal history is of comparatively little weight in striking a sentence which balances all relevant considerations.
The State of Western Australia v Sabek [2005] WASCA 207 was an appeal where the offender had been convicted after trial of receiving a semi‑automatic handgun (count 1), aggravated burglary (count 2) and two counts of making threats to harm (counts 4 and 5). For count 2 he was sentenced to 18 months' imprisonment suspended for 18 months. For count 1 he was fined $1,000 and for counts 4 and 5 fined a further $4,000. On a prosecution appeal against the leniency of the sentences, the appeal was allowed, and a term of 12 months' immediate imprisonment was imposed in relation to count 2. The offender had lent $3,000 to the victim, had been repaid $1,700 and took steps to enforce recovery of the outstanding $1,300. He went to the victim's house, forced his way into the residence with a handgun, knowing that the victim was inside and with the intent to assault and intimidate the victim into handing over the balance of the money owing. Having done so and when leaving the premises in a van, the offender pointed a gun at the victim's girlfriend and her brother. The issue essentially was whether or not an immediate sentence of imprisonment should have been imposed rather than the non‑custodial sentences which had been imposed by the trial judge and, as noted, that the appeal was allowed and an immediate term of 12 months' imprisonment ordered. While this was imposed solely in relation to the aggravated burglary counts, it can, in my view, be regarded as reflecting the view of the Court of Appeal of the appropriate sentence for the composite set of offences.
In Mills v The State of Western Australia [2007] WASCA 118 there were two appellants jointly charged on indictment with robbery in company (count 1) and extortion (count 2). Mills was convicted of robbery in company and the second appellant, Whitburn, was convicted of both offences. This was a case of threats being made to enforce payment of a drug debt. The two offenders and a third person punched the victim in the face three times, stole his car and threatened that if payment was not made the car would not be returned. Whitburn had been originally sentenced to 5 years and 4 months for robbery in company and to 2 years for extortion, which sentences were to be served concurrently. On appeal, his sentence for robbery was reduced to 4 years and 4 months and the 2 year sentence for extortion was left unaltered, still to be served concurrently. Mills' sentence after conviction only for robbery was for immediate imprisonment for 4 years and 10 months, which on the appeal was reduced to 3 years and 4 months.
Another case involving elements of extortion coupled with other crimes is R v Michael Lenard; R v Michael Fail [2006] NSWCCA 345. In that case, the offenders were jointly charged with influencing witnesses contrary to s 323(a) of the Crimes Act 1900 (NSW) and demanding money with menaces. The first appellant, Lenard, was sentenced to a non‑parole period of 1 year and 2 months' imprisonment on count 1 with a balance term of 1 year and 7 months. The second offender was sentenced to a non‑parole period of 1 year and 3 months and a balance term of 1 year and 9 months, also on count 1. On appeal (by the prosecution), Lenard's conviction on count 2 was set aside and he was re‑sentenced to a non‑parole period of 1 year and 7 months with a balance term of 2 years and 5 months. Also on count 2, Fail's conviction was quashed and he was re‑sentenced to a non‑parole period of 1 year and 9 months together with a balance term of 2 years and 3 months. The circumstances of the offences involving Lenard and Fail were that a relative of theirs had stolen the victim's computer during a home invasion and the victim had made a statement to the police regarding the home invasion. The offenders obtained possession of the stolen computer and began an extortion campaign demanding that the victim withdraw his statement to the police regarding the home invasion and pay $200,000 for the return of the computer which, so the offenders contended, contained child pornography which would be disclosed to the police if their demands were not met. The prosecution appeal did not suggest that there was an error in the expression of sentencing principle but, rather, that the overall sentences were too lenient and, as described, the appeals succeeded.
These authorities which, of course, can only be taken as illustrations of the applications of sentencing principle rather than laying down particular sentences to be imposed for those or like offences, indicate that, generally speaking, a sentence of immediate imprisonment will be imposed in cases involving threats or extortion even if involving offenders who have little or no previous record of offending. Often, as some of the examples examined reveal, they involve sentences for other associated offences which may include actual theft and/or violence. Inevitably, the severity of the sentences will vary according to the degree and nature of the threats made, to whom they were made, whether actual violence was involved, and the amount of money involved, or attempted to be involved in the extortion. It is not surprising that, because of the range of variability and gravity of each of these associated factors, there are often large differences in the sentences which are imposed.
In this present case, no actual violence was used although unmistakable, forceful and frightening threats of immediate violence were made. There had been no antecedent offences, such as theft or robbery, which preceded the extortion and the offences of robbery and extortion which occurred were part of the steps of the one continuing process to extort money which the offenders believed, unjustifiably, was owed to them. These are all factors which were known to the learned sentencing judge and were considered by her Honour in coming to the sentences which she imposed. It may be the case that these particular sentences were moderate or lenient having regard to the offences committed, but no actual error of principle has been suggested to have led to an erroneous and unacceptable result. In my view, these were offences in which the learned sentencing judge inevitably needed to make difficult discretionary judgments and in a case where her Honour did decide to impose immediate sentences of imprisonment. I consider that any court should be slow to conclude that the particular sentence for this type of offending imposed was erroneous merely because there is scope for a difference of opinion about the length of sentences which might have been imposed.
Although there were five offences committed over the passage of some 10 days or so, they all arose from the same background, namely, that the offenders wrongly believed that the victim of these offences owed them money and was obliged to repay it. As Pullin JA has pointed out, this belief was erroneously founded upon a misunderstanding of the true legal position. Nevertheless, it was the fact that the offenders had advanced money to a man whom they believed had in turn either paid the money to the victim or made it, or its proceeds, available to the advantage of the victim's business. Not to put too fine a point on it, the offenders took the view that the victim was morally obliged to repay their loan and set about demanding repayment with threats which they repeated and pursued until some payments were made, in response to the threats, and they were apprehended and charged. In these circumstances I do not consider that any error has been shown by the learned trial judge in ordering that the five separate sentences should be served concurrently - compare Attorney‑General v Tichy (1982) 30 SASR 84 at 93 and Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 per Kirby J at 650 [120].

Three of the convictions are for robbery with threats of violence. By s 392 of the Criminal Code (WA) (the Code) that offence carries a greater maximum potential sentence than the offences of demanding money with intent to extort or gain established by s 397(2) of the Code. However, neither on the occasion of the submissions before the learned sentencing judge, nor on this appeal, did counsel for the DPP contend that greater sentences should have been imposed for the robbery offences than for the extortion offences. The position of the prosecution, as earlier noted, was that separate and cumulative sentences should have been imposed for the robbery and extortion offences. Taking the submissions broadly, the position of the prosecution was that all the offences of the respondents were serious and warranted the imposition of immediate terms of imprisonment rather than some form of non‑custodial disposition. The learned sentencing judge obviously acceded to those submissions and imposed immediate terms of imprisonment in relation to each of the offences. I do not see that there can be any justification for a conclusion that the learned judge erred in principle or erred in the application of the principle in dealing with the sentencing on that basis.
Similarly, in relation to her Honour's orders that all the sentences should be served concurrently, there is obviously a basis in fact to support the approach taken by the learned trial judge and, once that has been accepted, and there is no reason to conclude that it was wrong, the decision to order that the sentences be served concurrently was nothing more than the application of conventional principle.
As to overall disproportion of the sentences imposed as submitted by the prosecution, I can only say that an objective comparison between these sentences and the other authorities to which the court was referred does not support that contention. Even if the view were to be taken that these sentences were lenient, there is no basis for concluding that a decision to exercise leniency in these cases, having regard to the background and circumstances of the offenders, involved any error of principle. Neither offender had ever been sentenced to a term of imprisonment before. The effects of imprisonment were likely to be, and have been, very disruptive to their personal, family and commercial lives. There is another factor, namely that one of the offenders had already been released on parole so that for this court to allow the appeal and re‑sentence the offenders would involve a second loss of liberty for him at a time when, recently released, he is attempting to reconstruct his life and repair the damage to his family and livelihood which the consequences of his offending rightly caused. That would be to impose a second degree of punishment of undue severity in these particular circumstances.
I consider that these appeals should both be dismissed on the grounds that no feature of the sentences has been demonstrated to warrant this court exercising its special power to allow an appeal against sentence and increase the sentence.