Wegner v The Queen - [1999] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: WEGNER -v- R [1999] WASCA 26

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 20 APRIL 1999

DELIVERED : 24 MAY 1999

FILE NO/S: CCA 199 of 1997

BETWEEN: GUY WILLIAM WEGNER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal - Sentence - Applicant charged with robbery in company in circumstances of aggravation sentenced to 8 years' imprisonment with eligibility for parole - Initial plea of not guilty later changed to guilty - At time of sentencing applicant was serving term of six years for earlier series of burglaries - Starting point of 8 years' imprisonment not reduced for earlier sentence of 6 years' imprisonment - Whether sufficient regard was had to change in plea and whether this resulted in benefit to the administration of justice - Whether sentence was excessive - Application of totality principle - Sentence imposed for new offences should not amount to a re-sentencing of the offender for prior offences

Held - Sentence reduced to 6 years' imprisonment

Legislation:

Nil

Result:

Appeal upheld

Representation:

Counsel:

Applicant: Ms A Mikkelsen
Respondent: Mr R E Cock QC & Ms A L Forrester

Solicitors:

Applicant: Ann Mikkelsen
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen, unreported; FCt SCt of WA; Library No 930341; 14 June 1993
Miles v The Queen (1997) 17 WAR 518
Postiglione v The Queen (1997) 189 CLR 295
R v Gordon (1984) 71 A Crim R 459
R v Harrison (1990) 48 A Crim R 197
R v Holder [1983] 3 NSWLR 245
Robinson v The Queen unreported; FCt SCt of WA; Library No 980587; 9 October 1998

Case(s) also cited:

Australian Coal v Commonwealth (1953) 94 CLR 621
House v R (1936) 55 CLR 499
Miles v The Queen, unreported; CCA SCt of WA; Library no 970258; 7 May 1997
R v Peterson [1984] WAR 329
Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Urquhart v R, unreported; CCA SCt of WA; Library No 950484; 13 September 1995
Weng Keong Chan (1989) 38 A Crim R 337
Yanko v R, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

JUDGMENT OF THE COURT: This is an application for leave to appeal and an appeal against sentence. The applicant was charged with armed robbery with circumstances of aggravation in that he was in company, armed with a knife and used personal violence. He was convicted on his own plea of guilty and sentenced to a term of imprisonment of 8 years.
Counsel for the applicant submitted, on two grounds, that the sentence was excessive. Firstly, it was said that the learned sentencing judge failed to give the applicant due credit for pleading guilty, albeit that the plea was relatively late. Secondly, it was said that his Honour failed properly to apply the totality principle. The latter issue arose because at the time the applicant was sentenced, he was serving an aggregate term of 6 years' imprisonment imposed by the learned District Court Judge for a series of burglary offences (involving mainly house breaking) which occurred between 30 September 1995 and April 1996. He was sentenced for these offences on 20 June 1997. The armed robbery for which the applicant received 8 years' imprisonment was committed on 19 June 1996. He was sentenced for this offence on 20 October 1997.
The facts relating to the armed robbery are not of any complexity. The applicant and a co‑offender entered the premises of a pharmacy at about 7.00 pm. Each was armed with a long knife. The applicant was wearing a motorcycle helmet and a balaclava. He ordered the pharmacist to open the safe in the back of the shop. When the safe was opened, the applicant removed a money bag containing $4203. During the course of the robbery, a customer in the shop was knocked over, and suffered shock, bruising to the right shoulder and to the left wrist.
According to the learned sentencing Judge the applicant "indicated a firm plea of not guilty at the status hearing". Later, about a month prior to the trial, the applicant informed the prosecution that he would alter his plea to guilty. This change was not brought about by remorse, but by a realisation that a video recorded confession he had made to the police was likely to be admitted into evidence and he would have no defence to the charge brought against him. Although the alteration in the plea occurred some four weeks prior to the scheduled trial date, the available dates for the trial could not be filled with another case. In the course of his sentencing remarks, the learned sentencing Judge said that, in consequence of the change in plea, "there was no saving to the administration of justice so no mitigation or credit can be given, or very little credit can be given by reason of the fact that you have pleaded guilty."
Counsel for the applicant submitted that the learned sentencing Judge erred in finding that, by the plea of not guilty, "there was no saving to the administration of justice". In my view that submission has to be accepted. As a result of the change in the plea, the need for a scheduled directions hearing listed on 2 October 1997 (which would have required the applicant to have been brought up from Albany regional gaol) was avoided, no jury was sworn in, the prosecution's preparation for the trial was substantially reduced and no trial took place. While the savings were not as significant as would have been the case had the applicant pleaded guilty at the status hearing, nevertheless, I think that the change in plea did have some benefit to the administration of justice and this should have been taken into account. Whether his Honour did so is not entirely clear; the remark that "no mitigation or credit can be given, or very little credit" for the plea of guilty, suggests that if any credit was given, it was insignificant.
In regard to the application of the totality principle, the learned sentencing Judge drew attention to the burglary offences for which the applicant had received 6 years' imprisonment, and said:
"I would refer to the amount of money that appeared to be stolen. In one instance, a group of offences, it appeared to be $19,000, another, $52,000. Her Honour commented on the degree of professionalism involved in those offences."
His Honour proceeded to conclude his sentencing remarks by stating:
"This was a particularly serious armed robbery and weighing up all the factors, I consider the offence calls for a term of eight years' imprisonment. As this was a continuation of your earlier criminal activity, the sentence will be served cumulatively on the sentences imposed in the District Court. I have looked at the degree of your offending and I consider that the overall sentence of 14 years is commensurate with the serious criminal activity in which you have taken place up till now and to which I have referred.
For that reason I consider that no further reduction is called for by the totality principle but, having regard to the length of the sentence, there will be an order that you be eligible for parole."
During the course of argument there was some discussion as to the correctness of his Honour's approach in determining the sentence for the robbery offence by reference to a comparison between the overall degree of criminality manifest in the commission of the burglary offences and the robbery offence (on the one hand) and the aggregate of the sentences for all those offences (on the other). It was suggested that his Honour rather should have compared the degree of criminality manifest in the robbery offence with the sentence for that offence, considered in the light of the sentence for the burglary offences.
Certain remarks by McHugh J in Postiglione v The Queen (1997) 189 CLR 295 (at 308) are relevant to this issue. His Honour first pointed out:
"The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged ... Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
and went on to observe (with apparent approval) that "[r]ecent decisions in the Court of Criminal Appeal of New South Wales have extended the ambit of the totality principle", in that:
"In order to comply with the totality principle, a sentencing Judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
The other members of the High Court in Postiglione v The Queen did not advert to the issue.
It is apparent from these remarks that the sentencing Judge is required, in a general way, to have regard to the criminality involved in the offence for which the prisoner has already been sentenced. As Street CJ said in R v Holder [1983] 3 NSWLR 245, at 260, the sentencing Judge will evaluate, "in a broad sense, the criminality involved in all the offences", "in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences". This appears to have been the manner in which Hunt CJ at CL approached the problem in R v Harrison (1990) 48 A Crim R 197 and in R v Gordon (1984) 71 A Crim R 459.
Of course , there can be no suggestion that the sentencing Judge should review the adequacy or the inadequacy of the previous sentence. Thus, in evaluating, in a broad sense, the criminality involved in all the offences, the sentencing Judge must take care that the sentence imposed for the new offences does not amount to a re-sentencing of the offender for the prior offences (which would conflict with fundamental sentencing principle). This may occur if the sentencing Judge, after considering the criminality of the earlier offences, concludes that the offender has received an overly light sentence, having regard to the criminality involved and, in consequence, adjusts the new sentences upwards. This is not what occurred in the present case.
As we understand the learned sentencing Judge's reasons, his Honour determined, prima facie, that a term of 8 years' (or at the most a few months more) imprisonment was the appropriate starting point for the offence of armed robbery. This understanding is based on the learned Judge's statement that he would give no or very little credit for the plea of guilty. The applicant did not submit that this would be an inappropriate starting point, and any submission to that effect would have been untenable: see Miles v The Queen (1997) 17 WAR 518.
His Honour then went on to consider whether there should be any reduction by reason of the totality principle and answered this question in the negative, being of the opinion that the offence, in fact, required the sentence of 8 years' imprisonment. This meant, in effect, that the starting point of approximately 8 years' imprisonment was not reduced to cater for the effect of the existing 6 years' imprisonment for the burglary offences. With great respect to his Honour, we consider that this was an error.
If we may refer to what Ipp J said in Jarvis v The Queen, unreported; FCt SCt of WA; Library No 930341; 14 June 1993:
"The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct ...
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."
In Robinson v The Queen unreported; FCt SCt of WA; Library No 980587; 9 October 1998, Murray J applied the same reasoning in relation to a question whether there was parity of sentencing between the applicants and a co‑offender, one Ismail, where each been sentenced to a term of 4 years' imprisonment and Ismail's involvement in the offence was greater than the others. His Honour regarded the fact that Ismail, unlike the applicants, had been sentenced to an additional term of 1 year and 3 months for another offence, as significant, and said:
"So far as Ismail was concerned, the sentence of four years imposed on him was properly to be regarded as of greater severity than the same sentence imposed on the applicants simply because it was part of an overall aggregate of five years and three months".
For the same reason, a term of 8 years' imprisonment imposed for one offence alone, is less severe than a term of imprisonment of 8 years which is coupled with another term of imprisonment for 6 years. The sentence imposed on the applicant failed to recognise this.
Giving due credit for the limited saving to the administration of justice brought about by the plea of guilty, and applying the totality principle by having regard to the exponential effect of being required to serve the existing 6 year term of imprisonment for the burglary offences, we consider that the appropriate term of imprisonment for the armed robbery offence would be 6 years.
Therefore, we would grant leave to appeal, uphold the appeal, set aside the term of imprisonment imposed by the learned sentencing Judge, and order that the applicant serve a term of 6 years' imprisonment for the offence of armed robbery. This to be cumulative upon the term of 6 years' imprisonment for the burglary offences. The order for eligibility for parole should stand.