Worthington v The State of Western Australia
[2005] WASCA 72
•19 APRIL 2005
WORTHINGTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 72
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 72 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:77/2004 | 2 FEBRUARY 2005 | |
| Coram: | MALCOLM CJ STEYTLER P PULLIN JA | 19/04/05 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in respect of ground 3 Sentence varied | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL SEAN WORTHINGTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Totality principle Amendments to the Sentencing Act 1995 Transitional provisions Whether extent of discount for separate mitigating factors had to be stated by sentencing Judge |
Legislation: | Prisons Act 1981 (WA), s 29 Sentencing Act 1995 (WA), s 8, Sch 1 cl 2(1), s 95 Sentencing Administration Act 1995 (WA), s 74(2), s 22 Sentencing Legislation Amendment & Repeal Act 2003 (WA), s 22, s 107, cl 1(1), cl 2(1), cl 2(4) |
Case References: | AB v The Queen (1999) 198 CLR 111 Attorney-General v Tichy (1982) 30 SASR 84 Ciobanu v The Queen [2003] WASCA 229 Cotic v The Queen [2003] WASCA 14 Dicker v Ashton (1974) 65 LSJS 150 Farquhar v The State of Western Australia [2005] WASCA 49 Hambridge v The Queen [1999] WASCA 50 Hoare v The Queen (1989) 167 CLR 348 House v The King (1936) 55 CLR 499 Jarvis v The Queen (1993) 20 WAR 201 Johnson v The Queen (2004) 205 ALR 346 Kirby v The Queen [2003] WASCA 239 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Brown (1982) 5 A Crim R 404 R v Faithfull (2004) 142 A Crim R 554 R v O'Brien and Gloster [1997] 2 VR 714 R v O'Rourke [1997] 1 VR 246 R v Ruane (1979) 1 A Crim R 284 R v Scanlon (1987) 89 FLR 77 R v Thomson (2000) 49 NSWLR 383 R v White [2002] WASCA 112 Stapleton v The Queen [2004] WASCA 130 Wicks v The Queen (1989) 3 WAR 372 Wong v The Queen (2001) 207 CLR 584 Aconi v The Queen [2001] WASCA 211 R v Bowman (1993) 69 A Crim R 530 Cameron v The Queen (2002) 209 CLR 339 Cameron v The Queen [2002] WASCA 81 Chua v The Queen [2001] WASCA 353 Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 Jarvis v The Queen (1993) 20 WAR 201 Little v The Queen [2001] WASCA 87 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 R v Nevermann (1989) 43 A Crim R 347 R v Pop (2000) 116 A Crim R 398 R H McL v The Queen (2000) 203 CLR 452 Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994 Siganto v The Queen (1998) 194 CLR 656 Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992 R v Ward (1999) 109 A Crim R 159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WORTHINGTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 72 CORAM : MALCOLM CJ
- STEYTLER P
PULLIN JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : H H JACKSON DCJ
File No : IND 615 of 2003
Catchwords:
Criminal law - Sentencing - Totality principle - Amendments to the Sentencing Act 1995 - Transitional provisions - Whether extent of discount for separate mitigating factors had to be stated by sentencing Judge
(Page 2)
Legislation:
Prisons Act 1981 (WA), s 29
Sentencing Act 1995 (WA), s 8, Sch 1 cl 2(1), s 95
Sentencing Administration Act 1995 (WA), s 74(2), s 22
Sentencing Legislation Amendment & Repeal Act 2003 (WA), s 22, s 107, cl 1(1), cl 2(1), cl 2(4)
Result:
Appeal allowed in respect of ground 3
Sentence varied
Category: B
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : Mr R E Cock QC & Ms M Georgevic
Solicitors:
Applicant : Simon Watters
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
AB v The Queen (1999) 198 CLR 111
Attorney-General v Tichy (1982) 30 SASR 84
Ciobanu v The Queen [2003] WASCA 229
Cotic v The Queen [2003] WASCA 14
Dicker v Ashton (1974) 65 LSJS 150
Farquhar v The State of Western Australia [2005] WASCA 49
Hambridge v The Queen [1999] WASCA 50
Hoare v The Queen (1989) 167 CLR 348
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen (2004) 205 ALR 346
(Page 3)
Kirby v The Queen [2003] WASCA 239
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Brown (1982) 5 A Crim R 404
R v Faithfull (2004) 142 A Crim R 554
R v O'Brien and Gloster [1997] 2 VR 714
R v O'Rourke [1997] 1 VR 246
R v Ruane (1979) 1 A Crim R 284
R v Scanlon (1987) 89 FLR 77
R v Thomson (2000) 49 NSWLR 383
R v White [2002] WASCA 112
Stapleton v The Queen [2004] WASCA 130
Wicks v The Queen (1989) 3 WAR 372
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
Aconi v The Queen [2001] WASCA 211
R v Bowman (1993) 69 A Crim R 530
Cameron v The Queen (2002) 209 CLR 339
Cameron v The Queen [2002] WASCA 81
Chua v The Queen [2001] WASCA 353
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Jarvis v The Queen (1993) 20 WAR 201
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998
R v Nevermann (1989) 43 A Crim R 347
R v Pop (2000) 116 A Crim R 398
R H McL v The Queen (2000) 203 CLR 452
Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994
Siganto v The Queen (1998) 194 CLR 656
Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992
(Page 4)
R v Ward (1999) 109 A Crim R 159
(Page 5)
1 MALCOLM CJ: This is an application for leave to appeal against sentence. The application was filed out of time but, with the consent of the State, an extension of time was granted at the commencement of the hearing.
2 The relevant facts and circumstances are set out in the reasons to be published by Pullin JA. I agree with Pullin JA for the reasons his Honour has stated, that grounds 1, 2 and 4 have not been made out. As to ground 3, it was contended that the total sentence was manifestly excessive in all the circumstances because the sentencing Judge imposed cumulative terms in respect of the offences the subject of indictment 615 of 2003, namely, assault on a public officer contrary to s 318(1)(d) of the Criminal Code (WA); two offences of assault on a public officer in an attempt to render each of them incapable of resistance; and unlawful detention of the two police officers to prevent the offenders being arrested. The facts are fully set out in the reasons to be published by Steytler P. I agree with the learned President that ground 3 has been made out for the reasons his Honour has stated.
3 The question of the application of the transitional provisions in s 22 of the Sentencing Amendment and Repeal Act 2003 read with cl 2(1) of Sch 1 of the Act ("the transitional provisions") is not without difficulty as Pullin JA has demonstrated in his reasons. They require a court sentencing an offender to a fixed term of imprisonment to impose a sentence that is two-thirds of the term that would have been imposed under the former legislation. The provisions have been fully explained by Pullin JA in his reasons. Subject to one qualification, the provision is expressed in terms which are without limitation in terms of time. It is provided in cl 2(4) of the transitional provisions that a court does not have to apply cl 2(4) if, in sentencing an offender:
"… the court follows the practice of the court as established in accordance with the new provisions and this clause."
4 The transitional provisions, however, themselves establish a practice of imposing a term of imprisonment one third less than that which, but for the transitional provisions, would have been considered appropriate by the sentencing Judge. This poses problems where one co-offender has been sentenced under a previous sentencing regime and the other is sentenced
(Page 6)
- under the present regime: cfFarquhar v The State of Western Australia [2005] WASCA 49 at [25] – [34] per Malcolm CJ.
5 In my opinion, there is a further difficulty which arises with respect to the transitional provisions. From time to time, decisions have been made on appeal which have indicated that because of the prevalence of the commission of a particular offence or for other reasons, the Court should increase the range of sentences for particular offences. Armed robbery, aggravated burglary and drug offences are examples: cfMiles v The Queen (1997) 17 WAR 518 (armed robbery); Hambridge v The Queen [1999] WASCA 50 at [8] – [10] per Malcolm CJ (with whom Pidgeon and Ipp JJ agreed (aggravated burglary); Cotic v The Queen [2003] WASCA 14 (possession of heroin and cocaine); and Ciobanu v The Queen [2003] WASCA 229 (possession of heroin with intent).
6 In Miles v The Queen (supra), for example, the Court of Criminal Appeal held that in the case of armed robbery, the range of sentences imposed should be increased from 5 – 7 years to 6 – 9 years. It may well be that in the future, the Court would wish to increase the general range of penalties imposed in particular categories of cases on account of the increased prevalence of the offence or other appropriate reasons. It is difficult to accept that the discretion to do so has been lost or limited by reason of the transitional provisions to which I have referred. I very much doubt that it was the intention of Parliament to limit judicial discretion in sentencing so that it would not be possible for the Court of Appeal to increase the range of sentences imposed for particular offences by reason of the increasing prevalence of the offence or for other relevant reasons. If I am wrong in this view, it is a matter which requires attention by the legislature. The exercise of the sentencing power is a prime example of the exercise of judicial discretion, given the wide range of objective and subjective considerations involved in the sentencing process.
7 For these reasons and the reasons stated by Steytler P, I would allow the appeal in respect of ground 3 and vary the sentences imposed by the learned sentencing Judge by ordering that the sentences imposed in respect of the first three counts on indictment 615 of 2003 be served concurrently with each other, with the result that the total of the sentences imposed will be reduced to imprisonment for 6 years and 8 months.
8 STEYTLER P: I have had the advantage of reading the judgment of Pullin JA. It is consequently unnecessary for me to repeat, in any detail, what has been said as regards the circumstances giving rise to this
(Page 7)
- application for leave to appeal against sentence, save insofar as is necessary to explain the different conclusion at which I have arrived.
9 The applicant was convicted and sentenced in respect of a considerable number of offences spanning the period 27 July 1998 to 6 November 2002. These encompassed 12 counts of aggravated burglary, one of stealing (a laptop computer), one of possession of housebreaking implements, one of being unlawfully on premises, one of criminal damage (smashing a car window), two of possession of methylamphetamine (respectively 2.6 grams and 0.3 grams), one of possession of cannabis (1 gram), one of attempting to pervert the course of justice (by concealing his true identity upon his arrest for three of the offences committed by him), two of use of a false name, one of resisting arrest, one of breach of bail, one of riding a motorcycle without a driver's licence, one of assaulting a public officer, two of disabling a person in order to facilitate his flight after the commission of an indictable offence and one of unlawful detention with intent to prevent his arrest.
10 The applicant was sentenced to a total period of 7 years and 8 months' imprisonment. This was made up of a term of 12 months' imprisonment in respect of the assault on a public officer, one of 3 years' imprisonment in respect of each of the disabling offences (to be served concurrently with each other but cumulatively upon that imposed in respect of the assault), a cumulative term of 2 years' imprisonment in respect of the unlawful detention, terms of 12 months' imprisonment in respect of each of the aggravated burglaries (to be served concurrently with each other but cumulatively upon the other sentences to which I have referred), cumulative terms of 3 months' imprisonment in respect of each of the charges of possession of methylamphetamine and a cumulative term of 1 month's imprisonment in respect of each of the charges of resisting arrest and being unlawfully on premises. Concurrent terms of imprisonment, ranging between 1 and 3 months, were imposed in respect of the various other offences to which I have referred save for those of using a false name and possession of cannabis, in respect of which fines of $200 were imposed.
11 The applicant, in his grounds of appeal, contends that the total sentence was manifestly excessive in all of the circumstances because the sentencing Judge:
"1. allowed little or no discount to reflect the offender's early plea of guilty, or to reflect his relatively young age.
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- 2. allowed little or no discount to reflect totality of sentence given the fact that the offender had already spent a considerable amount of time in custody due to cancellation of his parole.
3. imposed cumulative terms in respect of the offences contained in Indictment 615/03, when the offences were part of the one transaction and should have attracted concurrent terms.
4. did not reduce the sentence to reflect the new sentencing regime and the consequent change in calculations used for parole eligibility."
12 I will deal with ground 3 first.
13 The offences referred to in indictment 615 of 2003 (wrongly described as 659 of 2003 in the application book) were those of assaulting a public officer, the two disabling offences and the unlawful detention. They arose in the following way. The applicant was stopped by two police officers, Senior Constable Shaun Staples and Constable Rachel Goodwin, while driving his car in Girrawheen. He was found to be in possession of methylamphetamine and placed under arrest. He began to swing his arms in an attempt to avoid arrest. In the course of so doing he struck Senior Constable Staples in the face with an elbow (count 1). In the course of a scuffle with the two police officers the applicant, Goodwin and Staples fell to the ground. While on the ground the applicant removed a canister of pepper spray from Constable Goodwin's belt. He sprayed Senior Constable Staples with it in his face, thereby temporarily disabling him (count 2). The applicant then sprayed Constable Goodwin who turned her head away as he did so. She was struck by the spray on the side of her head (count 3). While the applicant and the two police officers were on the ground, the applicant gained possession of Constable Goodwin's revolver, placed his arm around her neck and held the gun to her head. He then backed towards his car, saying to Goodwin, "You are coming with me" (count 4).
14 There was some dispute as to what happened after that. According to the prosecution, the applicant placed Constable Goodwin "part-way" into the driver's side of the car. As the car began to move, Senior Constable Staples fired a number of shots towards it in an attempt to disable the vehicle. Constable Goodwin then escaped. The applicant continued to drive away and threw the pepper spray and the revolver from
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- the car a short while later. The applicant's version of what took place was that he had pushed Constable Goodwin away from the car as he jumped into the car and that it was only after he had done so and begun to drive away that the shots were fired. He said that he told Constable Goodwin, from the outset, that once he got to his car he would let her go.
15 The sentencing Judge made no finding as to which of these two versions was correct, although, in the course of his sentencing remarks, he appears to have recited the version offered by the prosecution. There is no appeal in this respect, or as regards any of the individual sentences imposed. However, I should say that, even if the version offered by the applicant was that upon which he should have been sentenced, I would not have imposed any different sentence in respect of the offence the subject of count 4, being the only count concerned in the disputed version of the facts.
16 The offences the subject of indictment 615 of 2003 were serious. People who resist arrest, and assault police officers in the course of doing so, can expect to get little sympathy from the courts. Moreover, these offences were made even more serious by the fact that the applicant detained Constable Goodwin by holding a revolver at her head. However, the total sentence that was imposed was particularly severe. As I have said, the applicant was sentenced to a term of 12 months' imprisonment in respect of the elbowing of the police officer, to terms of 3 years' imprisonment in respect of each of the pepper spray offences (to be served concurrently with each other) and to 2 years' imprisonment in respect of the unlawful detention of Constable Goodwin, making up a total of 6 years' imprisonment.
17 In considering the severity of the sentences imposed (and their cumulative total), it is important to bear in mind the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003, read with cl 2(1) of Schedule 1 thereof ("the transitional provisions"). These provisions, and their history, have been considered at some length in the judgment of Pullin JA. Their plain effect is that a court sentencing an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the term that would have been imposed had they not come into effect. That was so at the time of the sentencing of the applicant and it will continue to be so into the future. As Pullin JA has mentioned, cl 2(4) of the transitional provisions provides that a court does not have to apply cl 2 if, in sentencing an offender, "the court follows the practice of the court as established in accordance with the new provisions and this clause". However, the practice so established must necessarily be one of
(Page 10)
- imposing a term of imprisonment which is one third less than that which would, absent the enactment of the "transitional" provisions (that term is, in truth, a misnomer), have been considered appropriate by the sentencing Judge. That does not mean that the courts can never increase sentences. They can, of course, do so. However, any increase will necessarily be subject to the transitional provisions - the sentencing Judge must consider what total sentence (whether increased or not) would, absent the transitional provisions, be appropriate and then reduce that sentence by one third.
18 It should also not be overlooked that, when sentencing an offender under the former sentencing regime, the statutory provisions in respect of parole, and those which formerly existed in respect of remissions of sentence (these have been detailed in the judgment of Pullin JA) were not to be taken into account in determining the length of the sentence of imprisonment: Hoare v The Queen (1989) 167 CLR 348; Wicks v The Queen (1989) 3 WAR 372 at 384, per Malcolm CJ, 391, per Wallace J, and 394 - 395, per Brinsden J; Jarvis v The Queen (1993) 20 WAR 201 at 208, per Ipp J, and 214, per Murray J, cf at 217 - 218, per Anderson J; and Kirby v The Queen [2003] WASCA 239 at [26] per Anderson and McLure JJ, with which Malcolm CJ was in agreement.
19 Consequently, if it be accepted that, in this case, the sentencing Judge took the transitional provisions into account in arriving at the sentences imposed by him (and I agree with Pullin JA that he has not been shown to have failed to have done so), he must have considered that terms of 18 months' imprisonment (in respect of the assault), 4 years and 6 months' imprisonment (in respect of each of the disabling offences) and 3 years' imprisonment in respect of the unlawful detention were appropriate, making up a total sentence of 9 years' imprisonment.
20 By ground 3, the applicant complains that the overall sentence imposed on him in respect of these offences was manifestly excessive because, in effect, the sentencing Judge infringed the so-called "one transaction rule" or "continuing episode rule". This "rule" is essentially to the effect that concurrent sentences should be imposed in the case of a number of offences which "arise from substantially the same act or same circumstances or a closely related series of occurrences": R v Brown (1982) 5 A Crim R 404 at 407. In Attorney-General v Tichy (1982) 30 SASR 84 at 93 the rule was said to apply in a case of "one multi-faceted course of criminal conduct" and, in Pearce v The Queen (1998) 194 CLR 610 at 650 [120] Kirby J said that a judge may make sentences for multiple offences of which an accused is convicted concurrent if they are
(Page 11)
- "considered to be manifestations of the one criminal enterprise, transaction or episode".
21 The underlying principle of the "rule" has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, Principles of Sentencing (2nd ed) at 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency if they have been committed within a short period of time: see, for example, R v Scanlon (1987) 89 FLR 77.
22 In Dicker v Ashton (1974) 65 LSJS 150 at 151 (cited with approval by Asche CJ in Scanlon, at 80 - 81), Wells J said:
"… unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct".
23 It is plain that this "rule" is not a rule at all, but merely a guideline or, as it was described in R v Ruane (1979) 1 A Crim R 284, a "good working rule". Each case must, in the end, depend upon its own circumstances and it is for the sentencing Judge to determine, in every case, whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28], per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 - 721.
24 In Pearce, above, at 623 [40], McHugh, Hayne and Callinan JJ said:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences
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- overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts."
25 In this case, all four of the offences to which I have referred took place over a very short period of time in the course of the applicant's attempt to avoid being taken into custody. That, of course, does not mean that the sentences imposed in respect of the four offences should necessarily have been made concurrent. However, the fact that the first three offences arose in the course of a single melee, when coupled with the severity of the total sentence imposed in respect of them, leads me to conclude that the sentences imposed in respect of all three offences should have been ordered to be served concurrently.
26 I am, of course, conscious that an appellate court is not entitled to interfere in the exercise of a sentencing Judge's discretion merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge. It must be shown that some error has been made in the exercise of the sentencing discretion: House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. However, it seems to me that there was an error in the exercise of the sentencing Judge's discretion in this case. The total sentence, after accumulation, of 6 years' imprisonment (before reduction pursuant to the transitional provisions) was, in my opinion, beyond an acceptable range for a single melee involving an assault upon a police officer by elbowing him in the face and the use of a pepper spray to disable him and in an attempt to disable another officer. That is so even allowing for the fact that these offences should, as I have said, be treated more seriously because the assaults were perpetrated for the purpose of effecting an escape and were made on police officers attempting to perform their lawful duty.
27 While an order for concurrency of the sentences imposed in respect of the first three offences would reduce the total sentence imposed by only 12 months (18 months before being scaled down as a consequence of the operation of the transitional provisions), that is a difference which is, in my opinion, significant enough to warrant interference. I would consequently have allowed the application for leave to appeal and, to this extent, upheld ground 3 of the grounds of appeal.
28 As to the remaining grounds of appeal, I agree with Pullin JA, for the reasons which he has given, that grounds 1 and 4 have not been made out.
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- I should say, as regards ground 4, that it would have been preferable if the sentencing Judge had said that he had taken the transitional provisions into account, notwithstanding that it seems to me to be an untenable proposition that an experienced sentencing Judge should be taken to have overlooked them merely because he did not mention them, given that they had, by the time of sentencing, been in operation for nearly eight months.
29 Subject to what I have said in respect of ground 3, I agree with Pullin JA, also, that ground 2 has not been made out.
30 It follows that I would allow the application for leave to appeal, uphold ground 3 and alter the sentences imposed by the sentencing Judge by ordering that the sentences imposed in respect of the first three counts on indictment 615 of 2003 be served concurrently with each other. This will have the consequence that the total sentence of imprisonment imposed upon the applicant will be reduced to a period of 6 years and 8 months' imprisonment. I would otherwise leave undisturbed the sentences imposed by the sentencing Judge.
31 PULLIN JA: The applicant applies for leave to appeal against the sentences imposed in relation to the following charges. The sentences were imposed by his Honour H H Jackson DCJ in the District Court on 30 April 2004:
Table of Sentences Imposed
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Indictment Number 958 of 2003
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Indictment Number 659 of 2003 (Court Number 615 of 2003)
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32 His Honour wrongly stated, at the end of his remarks, that the total term of imprisonment as a result of the sentences and as a result of concurrency and cumulation orders made, was 10 years and 11 months. In fact the aggregate of the sentences was 7 years and 8 months. The applicant was made eligible for parole.
33 The grounds of appeal are that the learned sentencing Judge:
"(1) allowed little or no discount to reflect the offender's early plea of guilty, or to reflect his relatively young age.
(2) allowed little or no discount to reflect totality of sentence given the fact that the offender had already spent a considerable amount of time in custody due to cancellation of his parole.
(3) imposed cumulative terms in respect of the offences contained in Indictment 615/03, when the offences were part of the one transaction and should have attracted concurrent terms.
(4) did not reduce the sentence to reflect the new sentencing regime and the consequent change in calculations used for parole eligibility."
34 The offences referred to in Indictment No 659 of 2003 were held by his Honour to have occurred on 17 October 2002 (although the indictment
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- stated the date of the offence as 17 September 2002). On the date in question the applicant was driving when he was stopped by two police officers and a small quantity of methylamphetamine was found on him and he was arrested. He violently resisted. He elbowed the male constable in the face and that conduct became the subject of count 1. He fell over, pinning the two police to the ground. He removed a pepper spray canister from the belt of the female officer, sprayed the male officer and disabled him. This was count 2. The applicant then turned his attention to the female officer and sprayed her to the side of the head (count 3). The applicant then removed the female officer's revolver from her belt, placed his arm around her neck and held the gun to her head and backed towards the vehicle. The applicant's co-offender, a female, who had been called into action by the applicant, assisted by spraying the male constable in the face again with the spray. The applicant then instructed the female co-offender to get into the driver's seat and the applicant then placed the female constable part-way into the driver's side of the vehicle. As the car began to move off, the male constable fired a number of rounds with his revolver towards the car. The female officer then escaped as the vehicle sped away (count 6).
35 The applicant then continued on a crime spree, carrying out several aggravated burglary offences and the offence referred to in Indictment No 958 of 2003. The applicant was not located by detectives until 18 November 2002 when he was arrested.
36 By the time he came to be sentenced, a notice under s 32 of the Sentencing Act was prepared and this revealed the string of other offences set out above, some of which dated back to 1998 and 1999.
37 After his arrest in November 2002 he was held in custody until he was sentenced on 30 April 2004. The sentence was backdated to take account of the time he had spent in custody since his arrest.
No discount for early plea of guilty or relative youth - Ground 1
Plea of Guilty
38 The applicant asserted that his Honour gave little or no discount for the plea of guilty. The circumstances were that the applicant appeared in the Court of Petty Sessions and was then committed for trial to the District Court. He had not by then given any indication that he would plead guilty to any of the charges. He appeared in the District Court on 11 June 2003, 22 August 2003 and 1 October 2003 before entering pleas of guilty on
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- 15 January 2004. It was on 22 August 2003 that he indicated that he would be pleading guilty.
39 Notwithstanding that this was not a plea at the earliest opportunity, his Honour made it clear that the plea of guilty was a mitigating factor. He did not state the extent of the discount.
40 The absence of any reference to actual consideration of a plea of guilty in the course of sentencing should as a general rule lead to an inference that the plea was not given any weight. See R v Thomson (2000) 49 NSWLR 383 at [52] read in conjunction with s 8 Sentencing Act 1995 which requires the Court to expressly state that a mitigating factor has resulted in a reduction of sentence if that be the case. In this case his Honour did state that the plea of guilty attracted a discount.
41 It was, however, submitted that his Honour erred by failing to specify the discount allowed for the plea of guilty. I do not accept that submission. There is a considerable amount of authority stating that there is no error of law if a sentencing Judge does not specify the amount of the discount: Wong v The Queen (2001) 207 CLR 584 at [74] - [78] and AB v The Queen (1999) 198 CLR 111 per McHugh J at [13] - [18] and Hayne J at [115]; R v Thomson (2000) 49 NSWLR 383; Stapleton v The Queen [2004] WASCA 130 at [44].
42 The submission that the learned sentencing Judge gave little, or no discount to reflect the applicant's relative young age cannot succeed. His Honour expressly referred to the applicant's age at the time he was convicted - 26, almost 27 - and having done so, noted that the offences were committed two years earlier "or thereabouts" by which his Honour was clearly indicating that the age of the applicant was a relevant fact to be taken into account for the purpose of sentencing. The age of the applicant was therefore taken into account. It is not an error of law for a sentencing Judge not to expressly specify the amount of discount for this individual mitigating factor. See Wong (supra).
43 In my opinion ground 1 has no merit.
Totality - Ground 2
44 The allegation of the applicant is that the learned sentencing Judge allowed little or no discount to reflect totality of sentence "given the fact that the offender had already spent a considerable amount of time in custody due to cancellation of his parole". That was not, however, the point which the applicant wished to make. The oral and written
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- submissions make it clear that the complaint is in fact about whether or not his Honour correctly applied the totality principle.
45 The totality principle has a dual aspect. The first is to require a sentencer who passes a series of sentences to consider whether the aggregate sentence is just and appropriate and a reflection of the culpability of the offender. The second is to ensure that the effect of the aggregate sentence is not to impose a crushing sentence not in keeping with the record and prospects of the offender; in other words, a sentence must not be one which would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform of the offender. See Postiglione v The Queen (1997) 189 CLR 295 at 340 per Kirby J.
46 In this case complaint is made about the aggregate sentence of 7 years and 8 months. The offences in this case were committed over a four year period. The offences on 17 October 2002 were very serious indeed. Three of the offences carried maximum sentences of 20 years' imprisonment and the other one 10 years' imprisonment. The burglaries were also serious offences. They involved burglaries of houses. Goods of considerable value were stolen in several of the offences. The applicant had no major mental illness. He had been the subject of juvenile and adult supervision by way of community service, probation and parole orders since 1991 and, with the exception of a 5 month parole order made in August 1997, all of the orders had been breached by omission and recidivism. The evidence before the Court was that his illicit substance abuse put him at high risk of re-offending in a similar way, that he had little motivation to stop substance abuse, and that previous counselling had not engendered a long term positive outcome. (See Dr Chong's psychiatric report). A clinical psychologist's report stated that he appeared too focused on his own feelings of victimisation to acknowledge the impact his offending may have had on others. He came from a broken family, said that there was domestic violence at home, and that he was the subject of physical abuse on some occasions. It was in the context of that information that his Honour approached the task of setting an appropriate total sentence.
47 The total of the sentences imposed for the individual offences was very substantially reduced by his Honour, who expressly stated in relation to some of the offences that he was taking into account the totality principle.
48 The applicant referred to Johnson v The Queen (2004) 205 ALR 346 at [26] where Gummow, Callinan and Heydon JJ referred to the
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- methods or practices which might be adopted in the application of the totality principle. One method is for a Judge to fix a sentence for each offence and aggregate the sentences before taking the next step of determining concurrency. The other is to arrive at an appropriate sentence, lower each sentence and then aggregate them in order to determine the time to be served. In Johnson v The Queen, their Honours referred to an earlier decision of the Court expressing a preference for the first method which should be regarded as the "orthodox" method. Their Honours went on to say however, that neither method is immutable. They continued:
"Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected."
50 I am satisfied that there was no error in the approach his Honour took in arriving at an appropriate total sentence and I would therefore dismiss this ground.
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Failure to order concurrent terms on Indictment 659/2003
51 The applicant submits that the counts in Indictment No 659 of 2003 had much in common. He says that there was one complainant, the offences occurred on the same date at the same place, at approximately the same time and with a similar element central to both, namely assault. It is submitted therefore that his Honour erred in making some of the sentences in relation to the offences which were committed on 17 October 2002 cumulative.
52 The applicant referred to Pearce v The Queen (1998) 194 CLR 610, where the High Court said that it would be wrong to punish an offender twice for the commission of an offence where the elements of the offences were common. See also Johnson v The Queen (supra).
53 In Johnson v The Queen the appellant pleaded guilty to two offences in connection with an importation of drugs. Gummow, Callinan and Heydon JJ said that although it was true that the appellant pleaded guilty to two offences, they had much in common, namely one inducement, one payment for performance, one occasion, one package and one receipt by the appellant. This commonality required close regard to be had to the totality principle.
54 In this case, although the offences occurred at about the same time, they involved attacks on two police officers, and involved separate legally protected interests. The fact that there is one complainant is irrelevant.
55 His Honour used a method of cumulation and concurrency to arrive at the total sentence for these offences. In my opinion, this ground has no merit.
Failure to reduce the sentence to reflect amendments to the Sentencing Act
56 The applicant points out that he was sentenced on 30 April 2004, that relevant amendments to the Sentencing Act 1995 and certain transitional provisions came into effect only a short time before that date, that there was no reference to those provisions by his Honour and that this Court should therefore conclude that his Honour did not take them into account. Before I set out the transitional provision, I will go back a little into the history of the sentencing legislation to explain how the transitional provision came to be introduced. Before doing that I comment that there is no need for a Judge to expressly refer to the transitional provision in the course of his or her sentencing remarks. There is no provision like s 8(4) of the Sentencing Act 1995 which states that if because of a mitigating
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- factor a court reduces a sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
57 I now turn to the history leading to the passing of the transitional provision which was introduced into the Sentencing Act 1995 bythe Sentencing Legislation Amendment and Repeal Act 2003.
58 Before 1996, s 29 of the Prisons Act 1981 provided that prisoners serving a term of imprisonment were entitled to a remission of one-third of their sentence. This remission could be lost for certain specified reasons, the main one being where the prisoner committed prison offences.
59 In Jarvis v The Queen(1993) 20 WAR 201 the Court of Criminal Appeal held that a Judge sentencing an offender could not take into account the fact that the prisoner would almost invariably have one-third of his sentence remitted.
60 In October 1996 the Attorney General established a committee under the chairmanship of the then Chief Judge of the District Court, his Honour K J Hammond to examine and report by 20 December 1996 on arrangements which might be made to reduce:
"… the rate of remission so the time actually served by a prisoner more closely approximates the term imposed by the court …".
61 The report in ch 5 dealt with the subject of remission. It noted that "In practice most prisoner receive full, or close to full, remission" and reference was made to the Prisons Act 1981. The Hammond Committee recommended that the one-third remission of sentence (provided for in s 29 of the Prisons Act 1981) be abolished.
62 In fact, before the Hammond committee was published, s 29 of the Prisons Act 1981 was repealed by s 110 of the Sentencing (Consequential Provisions) Act 1995 which came into operation on 4 November 1996. This legislation was the third of three sentencing amendment bills that included the Sentencing Act 1995 and the Sentencing Administration Act 1995. Section 29 was replaced by three separate provisions, none of which used the language of remission, but which combined had the same effect as s 29. The first two provisions were in s 95 of the Sentencing Act 1995 which provided that:
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- "(1) A prisoner serving a fixed term that is neither a prescribed term nor a parole term is discharged from that sentence when he or she has served two thirds of the term and … must be released then.
(2) If a prisoner serving a parole term has not been released on parole before he or she has served two thirds of the term, then the prisoner is discharged from that sentence when he or she has served two thirds of the term and … must be released then."
63 Prisoners serving a parole term and released on parole were covered, not by the Sentencing Act 1995, but by the third provision, namely s 74(2) of the Sentencing Administration Act 1995 which provided that:
"… a person sentenced to imprisonment is discharged from the sentence -
(a) if released under a parole order - at the end of the parole period;"
64 That section, combined with the provisions of s 95 of the Sentencing Act 1995 and s 22 of the Sentencing Administration Act 1995 in relation to parole, provided for effective remission of one third of a paroled prisoner's sentence. Thus, the combined effect of the 1995 legislation on prisoners eligible for parole, and those who were not, was to maintain the remission of one-third of their sentence, but it was no longer referred to as remission. It was now achieved by a "discharge" or "release" of a prisoner. This regime was due to be dismantled by new sentencing legislation introduced in 1999, but the legislation was never proclaimed (and was subsequently repealed by the 2003 sentencing legislation).
65 The transitional provisions introducedby the Sentencing Legislation Amendment and Repeal Act 2003 provided in cl 2(1) that:
"If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."
66 The expression "old provisions" was defined in cl 1(1) to the transitional provisions to mean:
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- "the Sentencing Act 1995,and the repealed Act, as they would have applied had the sentencing amendments not come into operation."
67 The "repealed Act" was defined to mean the Sentence Administration Act 1995.
68 In the Second Reading Speech in the Assembly the Attorney General said that it [the government] recognised the valuable work undertaken by the Hammond review of remission and parole and "supports the philosophies outlined in its review report". The Attorney General continued:
"… the concept of truth in sentencing is enshrined in the two Bills. The current system of providing an automatic one-third remission of sentences is to be removed. Likewise the current two-tiered parole eligibility date formula which is often difficult to interpret and understand will be removed. In their place will be a system whereby offenders will be under sanction for the whole of the sentence imposed by a court."
- (The reference to the two Bills was a reference to the Sentencing Legislation Amendment and Repeal Bill 2002 and the Sentence Administration Bill.)
69 In the Second Reading Speech the Attorney referred to the more detailed aspects of the Sentencing Legislation Amendment and Repeal Bill and said that the key reforms included "abolition of the one-third remission on sentences." He also said:
"Remission is proposed to be abolished. Under the current system, a one-third remission on sentence is virtually automatic and, as such, not only serves no purpose but also brings into disrepute the sentencing system and the courts."
70 He then continued:
"Critically important to the proposed regime is that sentences will be adjusted so that a person spends the same amount of time in gaol under the proposed system as would have been the case had the offender been sentenced under the current system. If this were not done, by far the greatest risk is that there would be an across the board increase in sentences and an intolerably large increase in the prison population."
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71 The explanatory notes to the Sentencing Legislation and Amendment Repeal Bill 2002 said about cl 2 of the transitional provisions:
"As a result of the changes to the Sentencing Act 1995 contained in Division 4 of Part 2 of the Sentencing Legislation amendment and Repeal Bill 2002, offenders will have to serve a greater proportion of their sentence before they are either considered for parole or released from custody. As foreshadowed in the Report of the Review of Remission and parole it is not intended that offenders would serve any longer time in custody than is presently the case.
In order to achieve this it is necessary for court to adjust the sentence they intended to impose to ensure that offenders do not serve any more or any less time in custody. Clause 2(2) gives effect to this intent by requiring courts to adjust their sentences. However, there will be occasions when courts will not have to adjust sentences and these occasions are set out in subclauses (5) and (6)."
72 The question then arises as to how long the transitional provision cl 2(1) continues to operate. Could it be, that if the legislation were unaltered for decades that a sentencing Judge would have to try and ascertain what sentence would have been imposed under the old provision and then impose a fixed term of two-thirds of that sentence. In my opinion that would not be so. The reasons for that opinion range from the general to the particular.
73 First, and speaking generally, it can be assumed that Parliament did not intend to freeze sentences for all offences as at 31 August 2003. It is well known that community attitudes to some offences change with time. There is no need to resort to popular legend to show that long ago people were sentenced to many years of imprisonment for minor stealing charges which would today attract a fine or a non-custodial sentence. A more recent example demonstrates that attitudes and circumstances can change quickly. So in Miles v The Queen (1997) 17 WAR 518 in which the Chief Justice said, in relation to sentences for armed robberies, that since the Court of Criminal Appeal's decision in 1989 of Norman v The Queen, unreported; CCA SCt of WA; Library No 7489; 1 February 1989, sentences "have tended to firm up as a result of the increasing prevalence of the offence [of armed robbery] by giving greater weight to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender …" The Chief Justice said that the range
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- of sentences commonly imposed at the time he was writing his judgment had ranged from 6 to 9 years and that this was a "firming up" of the range from 5 to 7 years which had been suggested in Norman's case in 1989. In the absence of any express statement of Parliament to the contrary, it can be assumed that Parliament intended the court to continue to have this flexible and adjustable attitude to sentencing to reflect changed circumstances or changed community attitudes.
74 Secondly, cl 2(1) is in sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003. Sections 22 and 29(2) in that Act provide that sch 1 has effect in relation to the amendments to the Sentencing Act and in relation to the repeal of the Sentence Administration Act 1995. Schedule 1 is headed "Transitional Provisions". This is part of the written law. See s 31(2) of the Interpretation Act 1984. The word "transition" means moving from one stage to another. If cl 2(1) was to apply forever, it would not be transitional.
75 Finally, I note cl 2(4) of the transitional provisions which reads:
"A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause."
76 At some undefined time, courts may, by experience, develop attitudes to sentencing under the new provisions which will become the "practice" of the court.
77 In my opinion the transitional provisions will therefore cease to operate at some undefined time in future. This is most unsatisfactory. It would be preferable if Parliament said when this was to be. If Parliament does not do so, then it will be left to the courts to decide when a sentencing "practice" of a particular court has been established so that cl 2(1) will not apply. See cl 2(4).
78 I note that the Minister must conduct a review of the amendments to the Sentencing Act 1995 in 2007 (see s 107).
79 The matters referred to above should be considered in that review. At the moment I think it is too early to say that the transitional provisions do not apply, and when his Honour sentenced I consider that they most certainly did.
80 Counsel for the applicant asked the Court in effect to speculate that his Honour might not have been aware of these statutory changes, and sentenced as though the "old provisions" remained in force. That is hardly likely, because the provisions had been in operation for nearly 8 months by the time his Honour sentenced the applicant. In a busy court like the District Court, where the bulk of work performed by Judges in that Court is the conduct of criminal trials and sentencing, it would be unlikely that a Judge would not know of the amendments to the Sentencing Act. In any event it is not permissible for this Court to engage in such speculation.
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81 The fact that his Honour did not specifically refer to the sentence which have been imposed under the former sentencing regime does not mean that he did not take into account the law which applied at the time he was imposing sentence. If his Honour had not done so the sentence would have appeared to be manifestly excessive and I consider that it was not. I would dismiss this ground of appeal.
82 The result is that leave to appeal should be refused.
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