"W" (A Child) v The Queen
[1999] WASCA 235
•5 NOVEMBER 1999
"W" (A CHILD) -v- R [1999] WASCA 235
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 235 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:98/1999 | 5 OCTOBER 1999 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 5/11/99 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | "W" (A CHILD) THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Burglary, stealing a motor vehicle, stealing from the person, attempted armed robbery in company with actual violence, robbery in company with actual violence Juvenile offender 15 at time of offences Offences all committed on same day Voluntary surrender to police No significant prior record Sentence of 3-1/2 years' detention upheld |
Legislation: | Young Offenders Act 1994, s 7 |
Case References: | Holland v R [1999] WASCA 43 Jarvis v R (1993) 20 WAR 201 Kilner v R [1999] WASCA 189 Lowndes v The Queen [1999] HCA 11; (1999) 73 ALJR 1007 Pearce v R (1998) 72 ALJR 1416 R v Griffiths [1999] WASCA 23 R v Jones [1984] WAR 175 R v Piercey [1971] VR 647 Scott v R, unreported; CCA SCt of WA; Library No 990004; 15 January 1999 Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999 Verschuren v R (1996) 17 WAR 467 BAC (A Child) v R, unreported; CCA SCt of WA; Library No 950510; 25 September 1995 Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 House v R (1936) 55 CLR 499 M (A Child) v R [1999] WASCA 111 R v Chan (1989) 38 A Crim R 337 R v Ruane (1979) 1 A Crim R 284 R v Shaw (1989) 39 A Crim R 343 R v Ward [1999] WASCA 157 Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "W" (A CHILD) -v- R [1999] WASCA 235 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Burglary, stealing a motor vehicle, stealing from the person, attempted armed robbery in company with actual violence, robbery in company with actual violence - Juvenile offender - 15 at time of offences - Offences all committed on same day - Voluntary surrender to police - No significant prior record - Sentence of 3-1/2 years' detention upheld
Legislation:
Young Offenders Act 1994, s 7
Result:
Leave to appeal granted
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Appeal dismissed
Representation:
Counsel:
Applicant : Mr M R Hall
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Holland v R [1999] WASCA 43
Jarvis v R (1993) 20 WAR 201
Kilner v R [1999] WASCA 189
Lowndes v The Queen [1999] HCA 11; (1999) 73 ALJR 1007
Pearce v R (1998) 72 ALJR 1416
R v Griffiths [1999] WASCA 23
R v Jones [1984] WAR 175
R v Piercey [1971] VR 647
Scott v R, unreported; CCA SCt of WA; Library No 990004; 15 January 1999
Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999
Verschuren v R (1996) 17 WAR 467
Case(s) also cited:
BAC (A Child) v R, unreported; CCA SCt of WA; Library No 950510; 25 September 1995
Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
House v R (1936) 55 CLR 499
M (A Child) v R [1999] WASCA 111
R v Chan (1989) 38 A Crim R 337
R v Ruane (1979) 1 A Crim R 284
R v Shaw (1989) 39 A Crim R 343
R v Ward [1999] WASCA 157
(Page 3)
1 KENNEDY J: The facts are set out in the judgment of Pidgeon J, and it is unnecessary for me to repeat them at length.
2 The task facing the learned sentencing Judge was a difficult one. On the one hand, the applicant and his co-offenders committed a series of extremely serious offences, involving three elderly women aged 73, 78 and 83 in order to obtain money for drugs for their own use. Their victims obviously were selected by reason of their vulnerability. On the other hand, the applicant, who, at the time of his committing the offences, was not yet 16, by his subsequent actions, has shown clear signs of remorse and has made some progress towards his own rehabilitation.
3 The Young Offenders Act 1994, in s 7, sets out a number of general principles which are required to be observed in performing functions under the Act. These include the requirements that the community must be protected from illegal behaviour (par (d)), that detaining a young person in custody for an offence should only be used as a last resort and, if required, should only be for as short a time as is necessary (par (h)), that punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways (par (j)), and that, in dealing with a young person for an offence, the age, maturity and cultural background of the offender are to be considered (par (l)). The various principles obviously do not always point in the same direction.
4 The applicant, who is of Aboriginal descent, is the youngest of the three offenders. It would appear that, although he was a willing participant in the offences, he was not the driving force behind their commission.
5 The applicant's parents separated in 1996 and, in the following year, he came to reside in Perth. He there became involved in drug taking. He was said to have used marijuana, "speed" and heroin on a regular basis, although his use was restricted due to lack of money. He also indicated that he had experimented with both cocaine and LSD, but he had ceased their use "because of their mind altering effects".
6 Upon learning of the death of one of the victims, the applicant, 10 days after the offences, surrendered to the police in Albany, to where he had returned to live with his mother. He volunteered information to the police concerning his co-offenders. He has thereby demonstrated in a
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- practical manner remorse for his conduct. He claimed that he had ceased using all drugs after his return to Albany.
7 Prior to his being sentenced, the applicant was working for four days a week in the Albany Community Development Employment Programme. On another day he was attending the Great Southern Regional College of TAFE in Albany to complete his general education and he was also undertaking a course in basic woodwork. There appear in his case to be genuine signs of rehabilitation.
8 The applicant was described by her Honour the sentencing Judge as coming before the court without any serious criminal record, although he has, in the past, been subject to an intensive youth supervision order. In relation to the tragic death of one of the complainants, it must be kept clearly in mind that her Honour was not sentencing the applicant for that death. She herself was careful to note that the applicant was not to be sentenced in relation to that death, that he had not been charged with any offence in relation to the death and that there was no evidence that his personal conduct or that of his co-offenders was in any respect causative of the death.
9 Notwithstanding the considerable care which her Honour took in expressing her sentencing remarks, and although they reveal no error in principle, in all the circumstances and, in particular, having regard to the applicant's age, I formed the view that the effective sentence of 3-1/2 years' detention imposed upon the applicant is higher than was necessary. I am mindful, however, of the statement of the High Court in Lowndes v The Queen [1999] HCA 11; (1999) 73 ALJR 1007, at [15] 1010:
"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
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10 I accept that this principle should be applied in the present case. Whilst, therefore, I would grant leave, I would join with the other members of this Court in dismissing the appeal.
11 PIDGEON J: The applicant is seeking leave to appeal in respect of the length of a sentence of detention imposed upon him for a series of offences which occurred on the one day but which included the snatching of handbags from elderly women.
Facts relating to the applicant and the offences
12 The applicant was born on 15 January 1983 and was 15 years old on the day the offences were committed. He had what the learned sentencing Judge (Her Honour Judge French) described as a relatively minor record. He lived in Albany. The offending which brought him before her Honour started at about 4.00 am on Friday, 18 December 1998. The applicant and his cousin, who was approximately 17 years old, were walking along a road in Albany. The cousin asked the applicant to assist him to break into a house in the street in which they were walking. The applicant agreed and kept watch whilst the other boy entered the house and stole a set of car keys. They then went to the car port which contained a Holden Commodore sedan. The other boy, using the stolen key, turned off its alarm. The applicant then helped push the vehicle from the car port onto the road. The other boy started and drove the car with the applicant as a passenger. They both made the decision to drive the vehicle to Perth. The conduct I have described to this point was the subject of the first two offences to which the applicant pleaded guilty, namely, burglary and stealing the motor vehicle.
13 The offending continued following their arriving in the metropolitan area later that morning. The other boy remained the driver for the whole period of the offending. He directed or suggested to the applicant that the applicant should steal a handbag in order to obtain some money to purchase amphetamines for the use of both of them. They saw a 75 year old woman and her husband walking along the footpath of Albany Highway. The driver stopped the vehicle behind the woman and the applicant alighted. He approached the woman from behind and pulled her handbag from her shoulder. He ran back with the bag entered the car and was driven away This conduct was the subject of the third charge to which the applicant pleaded guilty, namely of stealing from the person.
14 They drove to a house in Cannington where $50 was taken from the handbag to purchase some amphetamines. At this stage a third boy, who
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- had already turned 18, entered the car and the three consumed amphetamine by injection. The three then made a further decision to look for an opportunity to another handbag to obtain some more money to purchase more drugs and they drove to the Bentley Plaza. They saw an 83 year old woman in company with a younger woman who was her niece. The vehicle was driven towards the older woman and stopped beside her. One of the other two asked her the time and when she started to respond he grabbed her handbag. Both the woman and her niece held onto the bag and a there was a struggle. The car accelerated and moved forward. The woman was dragged two metres as she had not released the bag. The applicant called out to the boy who had hold of the bag to let go and for the car to leave as other persons were running towards the car and had almost reached it.
15 The trial Judge found that the victim received grazing to her face, shoulder, legs and a deep wound to her left knee that required suturing. She was taken to the Royal Perth Hospital for treatment and was treated in the emergency department for abrasions and the wound. She was discharged from hospital at approximately 2.00pm and initially appeared quite well under the circumstances, although she was sore as a result of the injuries. Later in the evening she became ill. She was taken back to Royal Perth Hospital. It was thought that her condition improved and she was feeling better and was able to eat. An hour or two later she died of heart failure. Her Honour said, in her sentencing remarks, that there was a decision made by the prosecution not to charge the applicant with any offence arising from the death. Her Honour made the inference that there was no medical evidence that could establish whether the injuries sustained as a result of the robbery or indeed, the effect of the ordeal caused or contributed to her death. The applicant was charged with attempted robbery whilst in company.
16 Her Honour found that because the offenders did not obtain any money as a result of the previous offence, the driver of the motor vehicle located another victim, an elderly woman of 78, who was walking along the street in the Welshpool area. The driver parked the car alongside her and the applicant alighted. He came up behind her and pulled on her handbag which was around her shoulder. This caused her to lose balance and fall to the ground and the strap of the bag broke. The applicant obtained possession of it, returned to the car and was driven away. The bag contained approximately $1,500 in cash. Drugs were purchased with the stolen money and the stolen vehicle was subsequently abandoned. The victim received bruising and abrasions. The applicant was charged with robbery in company.
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17 Her Honour found that the applicant, on learning a few days later of the death of the victim, surrendered himself to the police and made a full confession of his role in all the offences and identified his accomplices. Her Honour referred to the personal circumstances of the applicant. He was regarded as a well behaved child, but at the time of the commission of the offence he was using a variety of drugs, including marijuana, amphetamine and heroin. He had, prior to the offending, been seeking counselling in regard to the drug use and it ceased to be a problem. Her Honour dealt with the submission that the applicant had been under the influence of the older co-offenders who suggested the commission of the offences. Her Honour accepted that the applicant was not the offender who seized the bag of the person who died. She mentioned, however, that it was he who stole the other two bags. Her Honour said that in the context of a situation where a number of offenders took part in a concerted action on a repeated basis in a short period of time, it was difficult to make any significant distinction between levels of culpability.
18 Her Honour said that a significant discount should be allowed in relation to the applicant surrendering to the police and informing them of the full circumstances of the offence. Her Honour's reasons for imposing the sentence she did were as follows: (AB33)
"I have to consider the nature and seriousness of the offence and the circumstances personal to you. I have to impose a sentence that is proportionate to the gravity of the offences and bears parity with the disposition of the cases of other young offenders.
The Young Offenders Act specifically recognises that your youth is a mitigating factor of itself and that the court must recognise that the rehabilitation of an offender is facilitated by remaining in the family and giving you the opportunity of engaging in educational programmes and employment.
In broad terms, the general principles of Juvenile Justice emphasises that detaining a young person in custody is only to be used as a last resort and if required, is only to be used for as short a time as is necessary. At the same time, the court has a responsibility to consider the protection of the public and this is expressly referred to in the Act. This court and the Court of Criminal Appeal has recognised on many occasions that there are cases where considerations of general deterrence and the
(Page 8)
- protection of the community demand a custodial sentence notwithstanding youth and good antecedents.
The circumstances of these offences are particularly serious. Between the hours of 8.30 and 9.30 am on the 18th of December, you joined in the commission of three serious offences selecting elderly and vulnerable people as victims. In respect of two of these offences, namely, the charge of attempted robbery and robbery, the victims were pushed or fell or dragged on the ground and suffered cuts and abrasions. One of the victims died approximately 36 hours after her ordeal.
I acknowledge the deep grief and distress of the victim's family and friends well illustrated in the victim impact statement of her niece. The victim was held in very high regard by all who had contact with her as a kind and caring lady who I am advised by her niece, touched the lives of all who knew her. The distress to her family, especially her niece, over her death is exacerbated by the violence of these offences against her and the fact that they obviously and understandably believed that that caused or contributed to her death such a short time later. That this is an obvious conclusion for them to draw despite the absence of medical proof is confirmed by my advice from your counsel that you handed yourself in to the Albany police after you became aware of Mrs Brean's death because you regarded yourself as humanly responsible for what had happened to her.
You are, however, not charged in respect of her death. I am therefore limited to sentencing you for an offence of attempted robbery in relation to that incident. I am not sentencing for causing directly or indirectly the death of that victim. However, robbery in these circumstances involving the very elderly and the frail carries with it a high risk of serious physical injury or even death resulting directly or indirectly from the shock and injury sustained in the attack.
Those who attack the frail and the elderly in this way should be treated in the ordinary course on the basis that they have shown reckless disregard for the welfare of their victims. An additional factor when death occurs as in this case it did, is that the last days of the victim's life have been clouded by the traumatic intrusion into their lives and the violent assault upon their person.
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- The prevalence of these attacks is now notorious and a powerful and simple message needs to be sent to would-be offenders that when they come before the courts they can expect to be locked up for a significant period of time. In this case I am dealing with three serious offences against elderly victims in addition to the charge of aggravated burglary and stealing a motor vehicle.
Although you are not the offender who seized the bag from the victim who died a short time later, your participation in the commission of this offence was in the context of a concerted course of conduct entered into between yourself and the co-offenders. Even after you were aware that Mrs Brean had been dragged or fallen as a result of the attack, you participated in the second robbery offence in relation to the third elderly victim and you were the offender who actually got out of the car and seized her hand bag.
Despite your age and the fact that you come before the court without any serious criminal record, I consider that these offences are individually and collectively too serious to warrant anything other than a significant sentence of custody. I consider that a term of 5 years is an appropriate starting point considering the course of conduct as a whole and your age being under 16 at the time of the commission of these events.
I propose to reduce this term to one of 3-1/2 years detention to take into account your plea of guilty and what I regard as the very significant mitigating factor that you not only handed yourself into the police but provided information in relation to the identity of the offenders."
19 Her honour set a minimum term calculated pursuant to the provisions off s 121 of the Young Offenders Act 1994.
Grounds of appeal.
20 The first ground of appeal relates to the term of five years which her Honour took as the starting point. It is claimed that it is too high by reason, firstly, of a failure to take into account the principles of juvenile justice and secondly of taking into account the death of the complainant in the offence to which I have referred. The second ground of appeal relates to the term of three and a half years actually imposed by her Honour. It is claimed that it is manifestly excessive, having regard to the applicant's age
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- and to his remorse as displayed by his surrendering to the police in the manner I have mentioned and his plea of guilty. Mr Hall did not contest the proposition that there should be a sentence of detention. The argument was confined to the fact that the commencing figure and the sentence ultimately imposed were in each case excessive for the reasons to which I have referred.
21 Mr Hall submitted that the significance of the death of the victim had been put into proper perspective by defence counsel, but was removed from that perspective by an emotional and inflammatory address by the prosecuting sergeant. Counsel, in addition, referred to the latter part of the address of the prosecuting sergeant which read: (AB25)
"Your Honour, there is an epidemic of this type of robberies around Western Australia and in particular in the metropolitan area. There was an elderly lady robbed only yesterday afternoon at her home. I think she was in her nineties, if I remember correctly. There is also the consideration of the other victims which are family members to these people who also suffered trauma though these offences. Elderly people cannot go shopping these days without the fear of being robbed or beaten up and robbed, and I would ask that a deterrent penalty be imposed in relation to these offences.
I would ask the court to consider a penalty of 5 years imprisonment, ma'am, and make the appropriate concessions in relation to the defendant surrendering himself to police and cooperating with police and pleading guilty. Thank you, your Honour."
22 Counsel particularly referred to the mention of the penalty which was sought and to the use of unproved material to establish prevalency. I consider Mr Hall has raised some important questions of advocacy and I propose to commence by examining whether it is permissible for counsel or an advocate to mention a specific penalty when not asked to do so from the bench. Mr Hall refers to no authority and there is in fact little authority. He submitted that in his experience as counsel it is traditionally not done to refer to penalty.
23 The following passage appears in a publication dated 1975 under the title "Conduct and Etiquette at the Bar" by Sir William Boulton CBE (6th
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- ed). I can find no later edition. It is there stated at 75 under the marginal note "Influencing sentence":
"Counsel for the prosecution should state all the relevant facts of the case dispassionately whether they tell in favour of a severe sentence or otherwise; but he should not attempt by advocacy to influence the Court towards a more severe sentence. It is, however, a common and proper practice, especially in the case of an unrepresented offender, for prosecuting counsel to draw the attention of the Court to any mitigating circumstances as to which he is instructed."
"57A. A barrister appearing for the prosecution should not act as an advocate in order to attempt to persuade a court to impose a harsh sentence, but nevertheless should be prepared to correct any error or misstatement made by counsel for the defence, refer the court to any relevant authority which would have a bearing on the appropriate penalty and generally to assist the court to avoid appealable error."
25 Lord Denning in 1957 expressed the view in a discourse published in an Indian publication "The Art of A Lawyer” (edited by B Malik, a former Chief Justice of the Allahabad High Court). Lord Denning said at p38:
"Furthermore no counsel is allowed to suggest to the judge what the sentence should be. That is for the judge alone. No counsel must attempt by advocacy to influence the court towards a more severe sentence: though he may, and often does, draw the attention of the judge to any mitigating circumstances which may induce a lesser sentence. If counsel for the accused should ask the judge not to inflict a prison sentence but to bind him over to be of good behaviour, counsel for the prosecution must not get up and say that he opposes it."
26 I would see these passages as setting out what was traditionally followed at the time of the publications. There was subsequently a change to a degree, a change to which Mr Hall referred in his submissions. The Criminal Code Amendment Act (No 2) 1976 gave to the prosecution a right of appeal against sentence. This Court then indicated that the prosecution should make submissions on sentence and there should be
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- submitted to the sentencing Judge those factors that might later be submitted to the Court of Criminal Appeal in support of an argument that the sentence was too lenient. The fact that the prosecution did not oppose a non-custodial sentence before the sentencing Judge has been seen as a factor to take into account on a Crown appeal. (See R v Jones [1984] WAR 175). These new factors have displaced a number of the principles I have earlier set out.
27 It follows that the prosecution must make submissions as to why the prosecution considers there should be a more severe sentence if that is the prosecution's view. I do not consider, however, that the practice has developed to the stage where a prosecutor, unsolicited, should suggest in terms of years what the sentence should be. In my view this should not be done and I reach that view for a number of reasons. Firstly I would see it as unhelpful. The actual sentence is still a matter for the Judge and a suggested figure would give the appearance of displacing the Judge's own judgment and may in any event have a tendency so to displace it. It would give the appearance that the sentence is being determined administratively and not judicially. I would add that the same principles would, in my view, require a Judge to be extremely hesitant and careful before asking counsel to suggest a sentence and I would have difficulty in seeing where that could ever be justified. It must be the Judge's own judgment and not have the appearance of being delegated. Where there is any one of two sentences such as strict security life imprisonment or life imprisonment, it has been the custom to address which of those two is being sought as that could well become a question on appeal. However, it is not the practice to specify in terms of years what the minimum term should be other than to state the general range and the area of the range the offence is seen to come within. It follows that if the Court is one where police officers can make submissions, it is important that the same standards be observed as they are standards of fairness leading to the proper administration of justice. It was open and proper for the sergeant to have asked for a deterrent sentence, but it was going too far in specifying the sentence in a term of years being sought and this should not be done in future. I must later examine whether this could have led to error by the sentencing Judge.
Submissions as to prevalency
28 The Court is empowered to use its general knowledge of the prevalence of a particular offence. Winneke CJ in delivering the Judgment of the Court in R v Piercey [1971] VR 647 said at 650:
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- "Nor is it, we think, to be doubted that the Court may use its general knowledge of a prevalence of a particular offence."
29 His Honour referred to earlier authority. A slightly more cautious view was expressed in Canada as is summarised in Ruby on Sentencing, 4th ed at 162 where the author says:
"It seems clear that, in some circumstances at least, a Court may take judicial notice of the increased prevalence of an offence. But an Appeal Court will carefully scrutinise a sentence based on such personal assessments."
30 I consider it is open to prosecuting counsel to make general submissions for the purpose of assisting in the general knowledge of the Court. However, I do not consider it is open to refer to an alleged single incident which occurred after the commission of the offences being judged and the day before sentencing. Such a single instance, even if proved, would not assist in establishing prevalence. I do not consider this led to an injustice as I consider it is clearly within the knowledge of the Court that there is a prevalence of handbag snatching incidents in the metropolitan area.
5 years Head Sentence
31 I propose now to examine whether there was any error in selecting 5 years as the starting point. Her Honour assessed the sentence by examining the overall conduct for that day. Mr Hall submitted that as the offences all occurred on the one day, it was appropriate for her Honour to approach it in this manner, but reached too high a sentence. Her Honour, in the present case referred to the total head sentence as a means to achieve totality so that her total sentence would not exceed a specified period. This approach is not brought into question in this appeal so it is a question of considering whether or not this period was too high for the totality of the conduct.
32 It is submitted that one of the factors which occurred and which caused the sentence to become too high was the use her Honour made of the death of one of the victims. The prosecutor made reference to it in what counsel described as an emotional address. Her Honour went no further than taking into account the fact that if elderly people are selected as the object of attacks of this type there is a higher risk of death from shock or injury. She also took into account the fact that on the last day of
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- her life the victim had in her mind the agony of an attack of this type. It is open to take such factors into account to the extent her Honour did.
33 It is clear from her Honour's remarks that the reason she chose the figure of five years as a starting point was the need for deterrence for the type of conduct which had come before her. The principles of sentencing juvenile offenders are different from those which apply to adults. Emphasis is given to rehabilitation. However the stage is reached in the sentencing of juveniles where the conduct is such where deterrence must come to the fore. I consider this is such a case despite the fact that the offender was only 15 years of age. The offenders agreed, on a repeated basis, to select as a target very elderly women who were defenceless against the type of attack made upon them. It involved forcibly stealing from the person. Juveniles of the age of 15 years in normal circumstances know how wrong and cowardly such an attack is and the applicant was in that position. There is a very strong community need for any court to take into account the principle of deterrence for violence of this type. I consider her Honour was correct, in this particular case, to give the emphasis she did to the principle of deterrence. I consider the figure selected was in no way excessive, nor do I consider, after reading her Honour's remarks, that she was led into any error or her judgment was displaced by the mention of the figure from the bar table.
The Effective Sentence and the Discount for reporting the matter
34 The next question is the discount that should be allowed arising from the action of the applicant, when he realised that one of the victims had died, in going to the police and advising them not only that he did it, but giving them full particulars of the offence and offenders. I mentioned that the attacks were cowardly but it speaks strongly for the applicant's character that he ultimately took this course in the circumstances that arose and pleaded guilty. It showed remorse on his part and a possibility for reform. I find, therefore, that the amount of the discount to be allowed to be a much harder question. It is accepted and it is clear that there must be some punishment by way of detention for offending as serious as this. Her Honour considered very carefully all the principles of sentencing and my judgment in the end is that I am not persuaded that her Honour was wrong in her final disposition.
35 In view of the irregularities in the submissions made to her Honour, I would grant leave but I am satisfied that the appeal should be dismissed.
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36 MURRAY J: I am grateful to have had access to the reasons for decision published by Pidgeon J. They lighten my task considerably. I found this a difficult appeal, but in the end, for me, the outcome turns on the second ground of appeal, which challenged the sentences aggregating a term of 3-1/2 years detention as being manifestly excessive. That ground, to my mind, focuses upon the true question in this appeal rather than ground 1 which directly challenges the correctness of the view expressed by the learned sentencing Judge "that a term of 5 years is an appropriate starting point considering the course of conduct as a whole and your age, being under 16 at the time of the commission of these events [sic offences]."
37 Her Honour went on to say:
"I propose to reduce this term to one of 3-1/2 years detention to take into account your plea of guilty and what I regard as the very significant mitigating factor that you not only handed yourself in to the police but provided information in relation to the identity of the offenders."
38 The sentences imposed by her Honour to result in that aggregate term of 3-1/2 years detention were as follows:
(1) The burglary committed upon the dwelling house in Albany: 12 months detention.
(2) The stealing of the motor vehicle at that place: 12 months detention concurrent.
(3) The stealing from the person (the first handbag snatch): 12 months detention concurrent.
(4) Attempted robbery in company: 2-1/2 years detention concurrent.
(5) Robbery in company: 1 year detention cumulative.
39 I was troubled by the fact that, as those sentences were structured, that imposed for the attempted robbery in company was much greater than that for the completed offence which was the last of the series. But in the end it seems to me that although nothing was obtained in the attempted robbery, considerable violence was employed to attempt to take the elderly woman's handbag, including dragging the woman along when the car was moved forward. On the other hand, as it turned out, the completed offence committed later, as a result of which some $1,500 in
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- cash was obtained, was one which involved much less violence against the victim.
40 In mitigation of punishment the significant factors were the age and antecedents of the applicant and the demonstration of remorse by surrendering to the police and providing significant assistance to identify the co-offenders, a process culminating in the entry of pleas of guilty by the applicant when the matters came before the Children's Court. There is no suggestion that her Honour overlooked any of those matters. Indeed, she expressly remarked upon all of them and gave a specific discount from her "starting point" for the pleas of guilty and the applicant's surrender and cooperation with the police. I assume it is correct to regard that discount as being applied to all the offences before the court and it amounts to 30 per cent with respect to the sentence imposed for each of them. Further, concurrent sentences were imposed for the offences committed earlier in Albany.
41 There is no doubt that, having regard to the age and antecedents of the applicant, the sentences imposed individually and in their aggregate constituted a significant punishment, but they were very serious offences of a prevalent kind in respect of which her Honour was certainly well justified to take the view that sentences calculated to assist the process of general deterrence were required. It matters not what I may have done had I been placed in the difficult position of being the sentencing Judge. On appeal I remain unpersuaded that her Honour erred in the exercise of her sentencing discretion in respect of these offences taken individually, in respect of the way in which she structured the sentences, in respect of the decision as to which should be served cumulatively and which concurrently, or in respect of the overall effect of what was done. In my opinion the application of the totality principle in this case required no further reduction in what would otherwise be regarded as a properly proportionate series of sentences, having regard to their total effect.
42 That conclusion really disposes of the matter. I have nothing to add to the remarks of Pidgeon J in respect of the submissions made by the prosecuting sergeant during the sentencing proceedings. I would be content, as Pidgeon J proposes, that leave to appeal should be granted, but I agree that the appeal should be dismissed.
43 There are, however, two further matters upon which I wish to make some brief observations.
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44 The first such matter was not raised by any ground of appeal or discussed during the hearing. It concerns what the learned sentencing Judge said about the fixation of a minimum term. Having imposed the sentences to which I have referred above, her Honour backdated their service to 27 April 1999, the date upon which the applicant was first taken into custody in relation to the offences, and she said:
"The minimum term to be served prior to consideration for supervised release will be calculated pursuant to the provisions of s 121 of the Young Offenders Act."
- Subsections 121(1) - (4) of the Young Offenders Act 1994 (WA) are in the following terms:
"121. (1) If a court sentences a young person to detention for 12 months or less, the offender is to remain in custody for 50 per cent of the term to which the offender was sentenced before the offender can be released under a supervised release order.
(2) When sentencing an offender to detention for more than 12 months, the court may set a minimum period for which the offender is to remain in custody before the offender can be released under a supervised release order.
(3) The minimum period set by the court cannot be less than the period determined as follows -
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where "P" is the period to be determined (in months);
"T" is the term of custody (in months) to which the offender was sentenced.
- (4) If the court does not set a different minimum period, the offender is to remain in custody for 50 per cent of the term to which the offender was sentenced before the offender can be released under a supervised release order."
45 Her Honour did not in terms say what the minimum period set was. Applying the calculation in s 121(3) to the aggregate period of detention, as directed by the Act s 122, results in the minimum period which the court may set being not less than 16 months. I have presumed in what I
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- have written above that when her Honour said the minimum period would be that calculated under s 121, she meant thereby to set as the minimum period that period which is the least which would result from the calculation. I therefore take her Honour to have set that minimum period.
46 Finally, as I have mentioned, ground 1 of the application directly challenges the five year period taken by her Honour as her aggregate "starting point". It is not I think strictly necessary to address this ground of appeal. The short answer to it is that the term of five years was not the aggregate sentence imposed and it was not any of the individual sentences against which, by leave, an appeal may be brought. However, as the matter was debated during argument I wish to make some brief observations.
47 I would hold, as I have said, that the approach adopted by her Honour in this case has not resulted in appellable error in the final result at which she arrived. But I think, with respect, that the process her Honour adopted is dangerous and may lead to error. With respect to those who hold a contrary view, I can see nothing in the process of commencing with a global starting point and ultimately apportioning it to individual sentences which, in a case like this, provides any assistance to a sentencing Judge and in my opinion there is much in that procedure which is contrary to the proper application of sentencing principle and likely to lead to error in the final result achieved.
48 The matter arose for consideration recently by this Court in Kilner v R [1999] WASCA 189, the decision of which case was delivered on 30 September. It was an application for leave to appeal against sentences of 8 months and 16 months imprisonment respectively for two offences of assault occasioning bodily harm. The two assaults had occurred within ten minutes of each other. The sentencing Judge had adopted the approach which her Honour employed in this case. He started from the proposition that the totality of the incident merited something like 3 years imprisonment which he reduced to 2 years having regard to pleas of guilty and other mitigating circumstances. His Honour then allocated 8 months of that 2 years as the sentence for the first offence and 16 months cumulative as the sentence for the second.
49 A ground of appeal complained that to take that approach was an error which should cause the CCA to set aside the sentences so fixed and re-sentence the applicant. The ground relied upon the decision of the High Court in Pearce v R (1998) 72 ALJR 1416 to which decision I shall come shortly.
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50 Ipp J, with whom Parker J agreed, expressed the view at par [19] that Pearce:
"…does not stand for the proposition that in every case where the practice is adopted an error in sentencing automatically occurs. Of course, where the practice does result in error, the sentences will be set aside. But, in my view, the mere adoption of the practice, in circumstances where the sentences imposed are within discretion, is unexceptionable."
- I would endorse the view that merely to adopt such a sentencing practice will not of itself amount to a miscarriage of the exercise of sentencing discretion so as to require the intervention of the CCA. In that regard the conclusion of this Court is in the same terms as its view about the adoption of a "two-tiered" sentencing process in relation to the fixing of individual sentences: Verschuren v R (1996) 17 WAR 467.
51 However, immediately before the passage quoted above, Ipp J noted that the practice of first fixing an appropriate overall sentence for a series of offences "has long been known in this State" and had recently been applied by the CCA in R v Griffiths [1999] WASCA 23, indeed by his Honour, with whose judgment on that occasion Kennedy and Wallwork JJ agreed. However, that application of the "practice" occurred in the process of the court making a decision upon a Crown appeal against inadequacy of sentence in which it concluded that for multiple sexual offences upon six victims, sentences totalling 4 years imprisonment were manifestly inadequate and should be substituted by sentences totalling 6 years imprisonment. That I think is not to be taken as an endorsement of the practice at the level of the sentencing Judge.
52 In Kilner Ipp J continued:
"As is pointed out in Pearce v The Queen, this practice is inappropriate in cases of double jeopardy (as also where offences overlap). It may also result in entirely inappropriate sentences being given for individual offences. When carefully applied in suitable circumstances, however, the practice has much to commend it."
- With great respect, I cannot endorse the last obiter dictum and I note that in Kilner, in agreeing with Ipp J that in that case the appeal should be dismissed, Wallwork J expressed the view that in accordance with Pearce and sentencing principle generally:
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- "…a Judge sentencing an offender for more than one offence should first consider an appropriate sentence for each offence and then consider the questions of cumulation, concurrence and totality."
53 I respectfully agree and would add to the consideration of the questions of cumulation, concurrence and totality, the application to the particular case of what is often tagged the "parity principle", if that may arise. In my opinion, that is the approach which has been regularly endorsed by this Court, as was recognised in Kilner where a number of recent such cases were referred to as examples, those cases being Scott v R, unreported; CCA SCt of WA; Library No 990004; 15 January 1999, Holland v R [1999] WASCA 43 and Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999. In the last case, at 33 - 34 of his reasons with which Kennedy and Pidgeon JJ agreed, Malcolm CJ, noting the two alternative approaches to imposing sentences for more than one offence at the same time, observed that the High Court in Pearce had adopted as the correct approach the fixing of an appropriate sentence for each offence and the consideration then of questions of cumulation or concurrence and the application of the totality principle.
54 Of course, as Ipp J noted in Kilner, the decision of the High Court in Pearce was concerned with whether the sentencing Judge had infringed the principle that punishment was not to be imposed twice for the same act. In that case identical sentences of 12 years imprisonment to be served concurrently had been imposed for an offence of burglary, where the offence committed in the house into which the offender entered was the infliction of grievous bodily harm, and the separate offence of the infliction of that harm. It was held that the fact that the sentences were the same and ordered to be served concurrently strongly suggested that the offender had been sentenced, not once for the burglary and once for the grievous bodily harm, but twice for the infliction of grievous bodily harm. The sentences were therefore set aside. So the case is an endorsement of the care that a sentencing Judge needs to take in such circumstances not to infringe the principle that there is to be no double jeopardy with respect to sentence, a principle expressed in this State in the terms of the Sentencing Act 1995 (WA), s 11.
55 In dealing with that question the court considered whether, as Kirby J, dissenting, thought, the proper result was to dismiss the appeal if the sentences were imposed concurrently and the total effect was not seen to be beyond the range of the proper exercise of sentencing discretion. The majority considered that nonetheless the appeal must be allowed
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because the individual sentences were flawed in that they doubly punished for the infliction of grievous bodily harm, pointing out that, as would be the case under the Criminal Code (WA), s 688(1a)(b), the appeal which by leave the convicted person has, is against any individual sentence, not being one fixed by law. Where the totality principle is called in aid it is to advance the proposition that sentences imposed for individual offences are properly to be seen as erroneously too long because of their total effect.
56 In my view the issue which arises is not merely one of semantics or even of appropriate sentencing practice, it is the question of the likelihood of error in the result if proper sentencing principles are not applied. That was explained by McHugh, Hayne and Callinan JJ in Pearce at 1423 - 1424 as follows:
"[45] 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. (Mill v The Queen (1988) 166 CLR 59).
[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. (cf House v The King (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process.
[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. (See Crimes Act, s 444(2) and (3); Sentencing Act 1989 (NSW), s 9; see also Sentencing Act 1991 (Vic), s 16). 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.
[48] 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
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particular offences. (L (1997) 91 A Crim R 270 at 282, per Ormiston JA)."
57 With respect, I can explain my point of view no better. The ultimate justification and aim of the sentencing process where punishment is imposed, including by imprisonment or detention, in cases where only one offence is before the court or where there are more than one, is to allocate to individual offences appropriate punishment proportionate to the criminality involved, having regard to all the circumstances, including those personal to the offender, whether they be aggravating or mitigating in their effect. That is the approach best calculated to achieve sentences which will be appropriately comparable to those imposed upon other offenders generally, and to avoid claims of disparity between co-offenders in the particular case. Proper application of those principles, enshrined in this State by legislation as well as in the common law, rather than increasing severity of punishment, offers the best prospect of protection for the community arising out of the certainty and predicability of punishment.
58 Where more than one offence is to be dealt with by the court on the same occasion, the proper application of principle will further inform the decision whether individual sentences should be ordered to be served cumulatively or concurrently. Ultimately, however, at the end of the process the application of the totality principle may require a departure from the strict application of principle in relation to the length of individual terms or the extent to which they may be ordered to be served cumulatively. The court making that departure for good reason having regard to the totality principle, must be seen to be making a principled departure from what would otherwise be a properly proportionate sentencing response. As was held in Jarvis v R (1993) 20 WAR 201, the totality principle itself, where there is a multiplicity of sentences, is a final check designed to ensure that in the total effect of those sentences the response of the court is proportionate to the total criminality involved. You cannot, with safety, start there and work backwards. If the court does so, it may or may not produce an appropriate result, but it will not do so on the firm foundation of the proper application of sentencing principle.
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