Waye v The Queen
[2000] NTCCA 5
•20 September 2000
Waye v The Queen [2000] NTCCA 5
PARTIES:RICKY FRANCIS WAYE
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 21 of 1999
DELIVERED: 20 September 2000
HEARING DATES: 2 August 2000
JUDGMENT OF: MARTIN CJ, ANGEL & BAILEY JJ
CATCHWORDS:
CRIMINAL LAW – SENTENCE – APPEAL AGAINST
Whether sufficient weight given to expert evidence
R v Tsiaras (1991) 1 VR 398, considered
R v Anderson (1981) VR 155, referred to
R v Man (1990) 50 A Crim R 79, referred to
Thiele (1986) 19 A Crim R 105, referred to
R v Yaldiz (1998) 2 VR 376, applied
Whether sentence was manifestly excessive – whether principal of totality
was correctly applied.
Serra 1996) 92 A Crim R 511, applied
R v Mill 1988) 166 CLR 59, applied
Kelly (CCA (NT) 30th June 2000, unreported) applied
REPRESENTATION:
Counsel:
Appellant:J Lawrence
Respondent: R Wild QC & Dr N Rogers
Solicitors:
Appellant:CAALAS
Respondent: DPP
Judgment category classification: C
Judgment ID Number: bai006
Number of pages: 23
bai006
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINWaye v The Queen [2000] NTCCA 5
No. CA 21 of 1999
BETWEEN:
RICKY FRANCIS WAYE
Appellant
AND:
THE QUEEN
Respondent
CORAM: MARTIN CJ, ANGEL & BAILEY JJ
REASONS FOR JUDGMENT
(Delivered 20 September 2000)
The Court:
Background: Charges and Sentence
This is an application for leave to appeal against sentence. At the commencement of the hearing, the Court indicated that it would hear the application for leave and the submissions on the grounds of appeal together.
On 18 November 1999, the applicant pleaded guilty to a number of offences set out in two indictments in respect of which sentence was imposed on 26 November 1999. The first indictment contained one charge of aggravated robbery committed at Alice Springs on 24 October 1998. The circumstances of aggravation were that the applicant caused bodily harm to his victim. The second indictment contained five charges relating to crimes committed at Alice Springs during the early hours of 4 December 1998. The first three counts related to crimes committed by the applicant at 5 Achilpa Street, Alice Springs while the remaining two counts concerned crimes committed at 5 Pedler Street, Alice Springs. The offences were:
Count 1- Aggravated unlawful entry (intent to steal and occurrence at night time)
Count 2- Stealing (a hammer valued at $22.85)
Count 3- Attempted aggravated unlawful entry (intent to steal; building a dwelling house; occurrence at night time; applicant armed with an offensive weapon, namely the stolen hammer)
Count 4- Aggravated unlawful entry (intent to commit unlawful sexual intercourse; building a dwelling house; occurrence at night time; applicant armed with offensive weapons, namely the stolen hammer and a knife)
Count 5- Unlawful sexual intercourse
The maximum penalties for the applicant’s crimes are:
First indictment: Imprisonment for life (s 211 (1) & (2) of the Criminal Code)
Second indictment: Count 1: imprisonment for 14 years (s 213 (1), (4) and (5) of the Code)
Count 2: imprisonment for 7 years (s 210 of the Code)
Count 3: imprisonment for 7 years (ss 213 (1), (4), (5) and (6) and 278 of the Code)
Count 4: imprisonment for life (s 213 (1), (4), (5) and (6) of the Code)
Count 5: imprisonment for life (s 192 (3) of the Code)
The applicant was sentenced as follows:
First indictment: 2 years and 6 months imprisonment
Second indictment: Count 1: 2 years imprisonment, cumulative to the sentence imposed on the first indictment
Count 2: 1 months imprisonment, concurrent with sentence on Count 1
Count 3: 2 years imprisonment, concurrent with sentence on Count 1
Count 4: 3 years imprisonment, of which 2 years to be served concurrently with sentences on Counts 1, 2 and 3 and one year to be served on a cumulative basis of the expiration of the sentences on such counts
Count 5: 9 years imprisonment, cumulative to the sentences imposed on counts 1, 2, 3 and 4
The effective head sentence imposed on the applicant was accordingly one of imprisonment for 14 years and 6 months. The learned sentencing judge fixed a non-parole period of 8 years and 6 months. Both the head sentence and non-parole period were backdated to 4 December 1998 to take account of time served by the applicant in custody pending disposition of the charges set out in the two indictments.
Grounds of Appeal
Mr Lawrence, counsel for the applicant relied on three grounds:
(a)that the effective sentence of 14 years and 6 months imprisonment and the non parole period of 8 years and 6 months were manifestly excessive taken as a whole in all the circumstances of the case and of the applicant;
(b)that the learned sentencing judge erred in that she did not give any or any sufficient weight to the evidence of Dr Lester Walton, a consultant psychiatrist, called on behalf of the applicant; and
(c)(a ground of appeal added with the leave of the Court at the outset of the hearing) that in imposing the effective head sentence and non-parole period the learned sentencing judge erred in failing to have regard to the totality of the overall sentence in the light of the mitigating factors.
Circumstances of the Offences
There was no dispute about the circumstances of the various offences committed by the applicant. In relation to the first indictment (aggravated robbery), the learned sentencing judge found the following facts proved:
“On the evening of 24 October 1998 and the early hours of Sunday, 25 October 1998, the accused was hanging around the Central Business District and mall of Alice Springs. He had been to the closing ceremony of the Honda Masters Games. The accused was sitting in the mall when he met up with the co-accused, Dean Shannon Smith, and another unknown person. There, he smoked some cannabis.
At about 3.30 am on the Sunday morning the accused and two co-offenders walked off down Todd Mall and towards the Old Gaol. At a location behind the Old Gaol on Wiltshire Street, the accused and co-offenders saw the victim urinating against a tree before hopping into the driver’s seat of his red Mitsubishi L300 van, South Australia registered UGS-798.
The accused and co-offenders then approached the victim. One of the co-offenders punched the victim in the face and, as a result, the victim was knocked unconscious. The victim was pushed further into the vehicle and the accused got into the passenger seat. The co-accused Smith got into the driver’s seat. The vehicle was driven to a location on Smith Street near the abattoirs and Trucking Yards Camp. There, they took the unconscious victim from the vehicle.
The accused dragged the victim 12 metres along the ground and dumped him onto the bushes. The victim’s wallet was taken from his back pocket, a $50 note taken from it and the wallet thrown onto the ground. The accused took coinage of about $10 from the victim’s vehicle. The accused and co-offenders drove off from the location. The victim woke up in this location, walked to the Stuart Highway and flagged down a police vehicle. He later took police back to the location where his wallet was located.
As a result of the assault the victim was unconscious for an unknown time and received bruising and abrasions to his face and body. The accused and co-offenders drove around Alice Springs for some time before the accused departed their company. One co-offender has not been identified. The van is worth $4000 and contained $10,000 worth of work tools, all of which were recovered. The vehicle sustained damage to the panels.
The accused was arrested on 4 December 1998 in relation to another matter. On 5 December 1998 he took part in a formal record of interview, making partial admissions to the offence. The accused stated that the victim willingly drove the accused and the two co-offenders to Cawood Court, one co-offender left the vehicle there. According to the accused, he and Smith were then driven by the victim to the area near the Truckstop in order to score marihuana.
On arrival, the accused went to urinate and when he returned, Dean Smith assaulted the victim. The accused admitted to then punching the victim himself and to dragging the unconscious victim along the ground and placing him on some bushes. He made admissions to taking the victim’s money. In his record of interview the accused says that Dean Smith and he got in the car and Smith dropped the accused at the 24 Hour Store in town. The accused was charged with the offences and bail was refused. He has been in custody on this matter since 5 December.”
In relation to the second indictment, the learned sentencing judge found the following facts proved:
“At about 5 am on Friday, 4 December 1998, the accused was walking past 5 Achilpa Street, Alice Springs, when he decided to try and unlawfully enter the premises. Mrs Bongers resided alone at that address and was aged 64 years.
He went to the front door and rang the doorbell several times. After getting no response from Mrs Bongers, he then smashed the door chime adjacent to the front door. He then removed a flyscreen from a front and side window, endeavouring to gain entry, without success. He then went to a shed at the rear of the premises and entered the shed. He removed a hammer from the shed and used this to smash a rear window of the house.
Mrs Bongers heard the window smash and yelled out to the accused that she had rung the police. On hearing this, the accused left the yard with the hammer. At no time did the accused have permission to damage the door chime, flyscreens or window or to steal the hammer. Total damage is $747.85 and the hammer is valued at $22.85.
The accused then walked towards 5 Pedler Avenue, Alice Springs. The account that follows comes from the victim’s statement dated 4 December 1998, and from a record of interview with the accused and Detective Sergeant Pollock on 5 December 1998. That is where the second victim resided. It was about 5.15 am. He was carrying a knife and a hammer. The latter was the weapon he had taken from 5 Achilpa Street. He walked past 5 Pedler Avenue and then walked to the back of the residence.
He decided to enter the premises. The accused was aware that the victim lived at the address and that she used to go out with his uncle. He entered the victim’s house through an unlocked back door and made his way to the victim’s bedroom. She was asleep in her bed wearing a singlet and underpants. He covered his face with a white plastic bag and carried the knife. He then held the blunt edge of the knife to the throat of the victim for a short time. He had one of his legs pinning her legs to the bed. She screamed and he said, ‘Shut up. I just want to have sex with you’.
The victim told the accused that he did not need the knife. She grabbed the knife from him with one hand, rolled onto her stomach and pushed the knife down underneath the bed. As she did this, she could feel her underpants being pulled down her legs by the accused. He also began to take off his pants. The victim was screaming and swearing. She bit him somewhere on the right hand.
The accused had the victim’s legs pinned to the bed by sitting on her with one leg on the floor. She began punching out with her arms, trying to get away from him. She also tried to kick but was unable to get away. The accused continued to remove his pants. The accused then hit the victim to the left side of her head with the hammer he had obtained from 5 Achilpa Street.
The victim lost consciousness for a short time. When she came to, she found herself on the floor in the room with her legs in the doorway. Her underpants had been removed. The accused was on top of her. He covered her face with some dark material. He pushed her legs apart. She began to scream and swear and struggle. The accused tried to push his flaccid penis into the victim’s vagina and pushed her body into several different positions.
He continued to push her legs apart. The victim felt the accused’s penis become erect. She looked to her left side underneath the dark material and saw in the accused’s hand a hammer. The accused was holding the hammer upside down with the handle pointing up. The victim said, ‘What are you going to do with that?’ The accused said, ‘I’m going to fuck you up the arse with it’. The victim shouted, ‘No’, and tried to struggle.
The accused shouted at her to keep the cover on her face. She became aware that he had put the hammer on the floor. The victim was terrified and began to tire. She wanted to get it over with and said to him, ‘Hurry up’. He pushed her legs apart again and pushed his penis into her vagina. He pulled it in and out roughly and quickly for several minutes. He slowed down and continued to push his penis in and out.
She struggled by trying to kick out at him. She felt around with her hands on the floor and located the hammer. She slid it under her body and over to her right hand. She did this to prevent the accused from using the hammer. At one point the accused asked the victim if she had a husband. The victim replied, untruthfully, that she had and said, ‘He’s probably your uncle’.
At some stage the accused said, ‘You have a nice white pussy. You’ve got long legs and nice hair’. The victim repeatedly asked to go to the toilet. The accused said several times, ‘I’m going to come back and do it again’. After about 10 minutes the accused ejaculated. He said, ‘This is not rape. I’m just making love to you’. He stood up and yelled at the victim to keep the shirt on her face. She continued to lie on the floor with the material covering her face and yelled at him to leave.
Without moving her head she was able to look to one side and managed to see the accused’s penis, socks and footwear. He left but returned a few seconds later. He removed the hammer from her hand and said, ‘I’ll take that’. He then left the premises. The victim removed the material from her face, put a towel around herself and noticed blood on her head and neck. She rang the police.
During the assault the victim suffered a large graze on her lower back from carpet burn, bruising and scratches to her left arm and a laceration to the head, which was the result of the hammer blow. She was taken to Alice Springs Hospital and received two stitches to the head. The accused went home after the assault and disposed of the hammer. He was located by police at about 10 pm on the same day and arrested. His clothing was seized.
The accused participated in a record of interview the following morning and made admissions to offences at each address. The accused said he could not remember much of his actions at 5 Achilpa Street due to his level of intoxication. He said that he knew who lived at 5 Pedler Avenue, that her name was J and that, ‘She used to go out with our uncle’. He denied that his face was covered when he first spoke to the victim.
He admitted to holding a knife when he first approached the victim, but denied holding it against her throat. He said, ‘The knife just fell out of my hand next to her’. He admitted to hitting her to the head once with the hammer. He said that he had put his shirt over her face, ‘Because I didn’t want her to see my face’. He also said he did it because, ‘She knows my Dad and my uncle’.
He could not give any reasons for his actions, apart from ‘just wanting a root’, but did acknowledge that he had done the wrong thing. He said he thought he had left the hammer at the premises. At no time did the accused have permission to enter the premises or to have sexual intercourse with the second victim. The knife was recovered in the victim’s bedroom by police. The hammer has not been located and the accused has been in custody since that time.”
Reasons for Sentence
In her reasons for sentence, the learned sentencing judge referred in some detail to victim impact statements of the applicant’s two victims of the crimes charged in the second indictment. The victim of the offences committed at Achilpa Street was an elderly widow who lived alone. She suffered feelings of anger and humiliation and a substantial psychological effect from fear of living alone and her personal safety generally. The victim of the applicant’s armed home invasion and rape suffered cuts to the head, bruising to her arms, back and genital area and friction wounds. In addition, she suffered psychological and emotional effects including fear of being alone, fear of leaving and returning to her home after dark, disrupted sleep and a loss of trust in others together with feelings of insecurity.
For the applicant, Mr Lawrence conceded that the learned trial judge’s description of the offences as “extremely serious” was entirely appropriate.
The learned sentencing judge referred to the applicant’s young age – nineteen years old at the time of the offences – and his substantial record of offences of dishonesty, property offences and assault committed both as a juvenile and as an adult. The applicant’s criminal record discloses that since the age of thirteen, he has committed six offences of unlawful entry, six offences of assault, four offences of malicious damage in addition to offences of receiving, stealing, possessing prohibited drugs, unlawful use of a motor vehicle and possession of an offensive weapon. The applicant had previously been imprisoned for three months in New South Wales for four counts of assault and in May 1998 had been placed on a three year bond in that State for an offence of break, enter and steal.
The learned sentencing judge heard evidence from Dr Lester Walton, consultant psychiatrist and concluded that, on a balance of probabilities, she was not able to find the applicant suffered from paranoid schizophrenia.
In sentencing the applicant, the learned sentencing judge observed that rehabilitation must be a factor in sentencing the applicant in view of his age, but concluded that rehabilitation “does not play such a significant part in view of the very serious nature of these offences”. Her Honour recognized that deterrence and retribution were factors which play a role in offences of the present seriousness.
The learned trial judge expressly recognized the applicant’s entitlement to a discount in his sentence for his pleas of guilty at the earliest opportunity and afforded him credit for not seeking to cross-examine his two female victims with respect to aspects of their victim impact statements. In relation to the offence of aggravated robbery (first indictment) Her Honour imposed a sentence of 2 years and 6 months having regard to the principles of parity. The applicant’s co-offender, Smith, in the aggravated robbery had received a sentence of that duration in earlier proceedings before Bailey J on 4 August 1999. In this regard, Her Honour noted that while Smith had been an offender of previously clear record, many of the applicant’s prior offences had been committed as a juvenile and the two offenders were of similar age and were equal participants in the aggravated robbery.
After imposing the sentences which are set out at paragraph (4) above, the learned sentencing judge expressly had regard to the principle of totality before structuring the various individual sentences to arrive at a head sentence of 14 years and 6 months imprisonment with a non parole period of 8 years and 6 months.
The Evidence of Dr Walton
It is convenient to turn first to the applicant’s second ground of appeal – that the learned sentencing judge erred in rejecting the evidence of Dr Lester Walton that the applicant was suffering from paranoid schizophrenia.
In R v Tsiaras [1996] 1 VR 398 at 400, the Victorian Court of Appeal referred to the significance of a finding that an offender is suffering from a serious psychiatric illness in the following terms:
“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it would be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, a psychiatric illness may mean that a given sentence will weigh more heavily on a prisoner that it would on a person in normal health.”
With respect, while we generally agree with these views, we have reservations about adopting in its entirety the third proposition expressed by their Honours. In recognising that a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, their Honours considered that the proposition applied “whether or not the illness played a part in the commission of the offence” (emphasis added).
It seems to us that in each of the cases referred to by their Honours (R v Anderson [1981] VR 155 and R v Man (1990) 50 A Crim R 79) the offender committed the offence whilst under the influence of the mental illness (see also: Thiele (1986) 19 A Crim R 105 and Payne (1984) 12 A Crim R 226). Further, in the later case of R v Yaldiz (1998) 2 VR 376, the Victorian Court of Appeal would seem to have withdrawn from the absolute terms of the third proposition in Tsiaras supra. In that case, Batt JA held at p 381
“…general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.”
His Honour also emphasised the absence of any evidence or submissions in the case before him “to the effect that the illness contributed to the offence or that the offence was committed under its influence” (p 380). Winneke ACJ (with whom Hampel AJA agreed) held at p 383:
“Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.”
It is clear from the context of these remarks that His Honour was referring to the effect of an accused’s mental capacity at the time of the offending in the sense of whether the accused’s psychiatric condition had obscured the mental intent to commit the crime with which he had been charged.
In the present case, Dr Walton produced two reports and gave evidence by way of a video link and was cross-examined by Dr Rogers on behalf of the Crown. Dr Walton examined the applicant on one occasion after he had been in custody for four months. At that time the applicant was essentially free of symptoms indicating any mental illness. Dr Walton’s opinion, based on his understanding of the applicant’s history, was that there were three possible diagnoses of the applicant’s condition ranked in order of likelihood:
(a) paranoid schizophrenia
(b) drug-induced psychosis
(c) psychotic-like culture-bound syndrome
In reaching a conclusion that she was not able to find on the balance of probabilities that the applicant suffered from paranoid schizophrenia, Her Honour gave extensive reasons in which she highlighted her concern that Dr Walton’s opinion was based on inadequate and/or incorrect information provided to him.
The learned sentencing judge stressed that she accepted Dr Walton as a highly qualified and eminent psychiatrist whose opinions have been accepted in many cases and by many courts. Her Honour expressly stated that she did not lightly discount his evidence.
For present purposes, it is unnecessary to refer to the learned sentencing judge’s reasons for her concern that Dr Walton’s opinion was based on inadequate or incorrect information provided to him. Mr Lawrence has sought to question the relevance of the (admittedly) inadequate and incorrect information furnished to Dr Walton prior to formulation of his opinion. We are satisfied that Her Honour was entitled to take the view that she adopted on all of the evidence before her, particularly having regard to the tentative nature of the alternative diagnoses which were described as “possibilities” by Dr Walton. There is no merit in the applicant’s second ground of appeal and leave to appeal on that ground should be refused.
Manifestly Excessive and the Principle of Totality
These two grounds of appeal may conveniently be dealt with together.
Mr Lawrence, while acknowledging fully the very serious nature of the applicant’s offending (and in particular the armed home invasion and rape charged in counts 4 and 5 of the second indictment) submitted that the learned sentencing judge paid insufficient regard to the subjective mitigating factors in favour of the applicant
Mr Lawrence placed particular emphasis on the severity in sentencing a young offender of a deprived background and disrupted childhood to imprisonment for 14 years and 6 months, with a non-parole period of 8 years and 6 months. He submitted that in light of the applicant’s guilty pleas at the earliest opportunity, his expressions of remorse (to Dr Walton) and information as to the applicant’s enthusiasm to undertake occupational education in custody, the applicant’s prospects for rehabilitation were positive.
We consider that the learned trial judge was correct in adopting the approach that deterrence and retribution must play a significant role in sentencing for crimes of the present nature. In cases of armed robbery, armed home invasions, rape of a stranger involving violence with offensive weapons and other crimes of similar gravity, subjective mitigating factors must take a back seat to the need to deter, punish and make it entirely clear that the community does not approve such conduct. Those who engage in offences such as the present must be left in no doubt that regardless of their youth and prospects for future rehabilitation, they will forfeit their liberty for a very considerable period.
Three of the applicant’s crimes are subject to a maximum penalty of imprisonment for life. Such crimes have become all too commonplace. Often armed robberies, armed home invasions and rapes are committed by offenders who are barely out of their teens. Appeals for leniency based on a disrupted and deprived background, the folly of youth and positive prospects for the future cannot be used to hide the fact that the actions of the applicant and those who commit similar crimes are the actions of a cowardly thug. The community generally looks to the courts for a firm response in dealing with those who seek to render people helpless as they go about their daily lives or seek to enjoy privacy and comfort of their homes.
In Serra (1996) 92 A Crim R 511 at 527, this Court in referring to submissions made on behalf of a nineteen year old armed robber that the learned sentencing judge had paid insufficient regard to the offender’s youth, deprived background, immaturity and to his prospects for rehabilitation observed:
“Submissions along these lines take no account of the predominant basis of sentencing in armed robbery cases, as stated, for example, by Angel J in Spicer, Tartaglia and Fotiades (unreported, Court of Criminal Appeal, NT, 7 April 1994) (p 10). The learned sentencing judge rightly treated (p 17) the applicant’s age as of “little significance”. In Rogers ((1996) 90 A Crim R 405), a case of the attempted armed robbery of a bank, this Court cited the observation at p 10 above by Angel J in Spicer, Tartaglia and Fotiades, and earlier similar observations in Williscroft [1975] VR 292 at 299, O’Brien and Potts (unreported, Supreme Court, Vic, 28 February 1986), McNally (unreported, Court of Criminal Appeal, Vic, 8 December 1988) and Brett (1987) 140 LSJS 343 (SA) at 344, all stressing the seriousness of the crime of armed robbery and the need for its deterrence by way of condign punishment. To similar effect are observations in Spiero (1979) 22 SASR 543 at 548-549, Knight (1981) 26 SASR 573 at 574-575, Zakaria (1984) 12 A Crim R 386 at 388 (Vic), Chan (unreported, Court of Criminal Appeal, Vic, 5 May 1989) and Thomson (unreported, Court of Criminal Appeal, SA, 21 May 1991), p 3. In general, rehabilitation is the main aim in sentencing a young offender such as the applicant; see P (1991) 53 Crim R 112 at 116 (NSW). However, sentencing in cases of armed robbery, as in other crimes of considerable gravity, constitutes an exception. This is because it is such a serious crime that even where the offender is young the court would cease to function as protector of the community unless deterrence and retribution were significant sentencing considerations; see Gordan(1994) 71 A Crim R 459 at 469 (NSW). Accordingly, in weighing the need for condign punishment of armed robbers against the need to rehabilitate a young offender, the former need will usually prevail. In Pham and Ly (1991) 55 A Crim R 128 (NSW), and aggravated robbery case, Lee CJ at CL put it this way (at 135):
‘It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes…’
See also Readman (1990) 47 A Crim R 181 (NSW). The need for deterrence is even greater when the crime is planned; Tait (1979) 46 FLR 386 at 399. His Honour rightly adopted this approach.”
We take this opportunity to endorse these observations and commend them to those who appear on behalf of young offenders who engage in serious and violent crime. In the present case, we consider the approach of the learned trial judge to the subjective factors put forward on behalf of the applicant was entirely correct.
The final aspect of the present application concerns the application of the principle of totality. Mr Wild QC for the respondent correctly identified this as the only real issue in the present application.
Mr Lawrence, realistically and fairly conceded that he could not take issue with the learned sentencing judge’s imposition of either the sentence of 2 years and 6 months for the aggravated robbery (first indictment) or the sentence of 9 years imprisonment for the offence of unlawful sexual intercourse (count 5 of the second indictment). Similarly, Mr Lawrence did not seek to argue that Her Honour erred in ordering that these two sentences be served on a cumulative basis. The gravamen of Mr Lawrence’s complaint was that Her Honour erred in applying the principle of totality in ordering the applicant to serve an additional three years imprisonment for the offences committed at Achilpa Street and the armed home invasion at Pedler Street. In essence, Mr Lawrence submitted that if the individual sentences were not manifestly excessive, the learned sentencing judge had not applied correctly the principle of totality despite her express reference to the principle.
The following succinct description of the principle in Thomas, Principles of Sentencing, 2nd Ed (1979), pp 56-57 was referred to with approval by a unanimous High Court in R v Mill (1988) 166 CLR 59 at p 63:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’”
Mr Lawrence placed particular emphasis on the starting point for an application of the principle to:
“…a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences…”
The learned sentencing judge imposed individual sentences for each of the applicant’s crimes: First indictment – 2 years 6 months; Second indictment: Count 1 – 2 years; Count 2 – 1 month; Count 3 – 2 years; Count 4 – 3 years; Count 5 – 9 years. Her Honour then continued:
“ These sentences total 18 years and 7 months imprisonment. I consider that I must then have regard to the principle of totality, and having regard to that principle, I consider the total sentence to be excessive…”
The learned trial judge then made orders for the various sentences to be served on a concurrent or cumulative basis as detailed in paragraph (4) above.
In Mr Lawrence’s submission, Her Honour erred in adopting a starting point of 18 years and 7 months. In particular, in accordance with the principles governing consecutive sentences and the general practice of the courts, it was submitted that the sentences for the three offences at Achilpa Street (counts 1, 2 and 3 of the second indictment) should have been ordered to run concurrently with each other. On this basis, it was submitted that the learned sentencing judge’s starting point should have been 16 years and 6 months rather than 18 years 7 months.
Similarly, perhaps with somewhat less force, Mr Lawrence submitted that, in accordance with general principles and practice, Her Honour should have ordered at least part of the sentence on count 4 of the second indictment (aggravated unlawful entry to Pedler Street) to run concurrently with the sentence on count 5 of that indictment (unlawful sexual intercourse at Pedler Street). On this approach the learned sentencing judge’s starting point for the application of the principle of totality should have been something in the order of 15 years imprisonment.
For the respondent, Mr Wild submits that while it may have been more appropriate for Her Honour to have ordered the sentence on count 4 of the second indictment to run on a part cumulative basis with the sentence on count 5 of that indictment (rather than the sentence on counts 1, 2 and 3), the practical result of Her Honour’s sentencing orders was appropriate and not manifestly excessive. Mr Wild emphasised that the learned sentencing judge expressly applied the principle of totality. In his submission, the sentences when looked at either separately or in totality give appropriate weight to the persistent and diverse offending of the applicant.
We consider that there is some force in the submissions of Mr Lawrence. The learned sentencing judge’s approach in a simple arithmetical accumulation of the various sentences may have led to an adoption of an starting point which was too high for the totality of the applicant’s criminality. However, we would not base our consideration on a strictly arithmetical approach. Sentencing is less a science than a form of art which must be fashioned to meet the individual circumstances of an offender and his offences. In the present case, having regard to all the circumstances, we consider that the effective head sentence and non-parole period is manifestly excessive. In this regard, none of the individual sentences imposed on the applicant is manifestly excessive, but the effective head sentence and non-parole period merits that description having regard to the applicant’s overall criminality and his pleas of guilty at the earliest opportunity.
In Kelly (CCA (NT) 30th June 2000, unreported), this Court has very recently emphasised the significant value of an early plea of guilty. The Court there stressed that an early plea promotes the speedy disposition of justice and avoids the waste of valuable court time and resources that is inherent in a late plea. An early plea in a case such as the present, involving an offence of unlawful sexual intercourse has particular significance as a mitigating factor where a complainant is relieved of the distressing and distasteful experience of giving evidence and being cross examined about highly personal matters.
In the present case, notwithstanding that the learned sentencing judge expressly applied the principle of totality after expressly recognizing the applicant was entitled to a substantial discount in sentence for an early plea, we consider that inadequate regard was had to the principle of totality.
We would grant leave to appeal in relation to the applicant’s third ground of appeal.
In all the circumstances of this case we are of the opinion that an effective sentence of 11 years and 6 months imprisonment would have been appropriate with respect to all the counts on the two indictments. We would not disturb the individual sentences on the various counts of the indictment.
For the purpose of applying the totality principle, we set aside the order for the sentence on count 1 of the second indictment to be served on a cumulative basis to the sentence imposed on the count in the first indictment. We order that the sentence on count 1 of the second indictment be served on a concurrent basis with the sentence imposed on the count in the first indictment. We further set aside the order that the sentence on count 4 on the second indictment be served on a basis partly concurrent and partly consecutive to the sentences imposed on counts 1, 2 and 3 of the second indictment. We order that the sentence on count 4 of the second indictment be served on a concurrent basis to the sentence imposed on count 5 of the second indictment.
The effective term of imprisonment is 11 years and 6 months. We fix a non-parole period of 7 years. Both the imprisonment and the non-parole period are ordered to have commenced on 4 December 1998.
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