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R v Schmidt

 

[2011] QCA 133

Reported at [2013] 1 Qd R 572

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

21 June 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

24 May 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Fryberg J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE the applicant co-operated with police and admitted to unknown offences admission to unknown crimes is a mitigating factor sentencing judge did not err in failing to give sufficient weight to his co-operation

CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE totality principle the meaning of crushing sentence dual-limb principle a crushing sentence may but need not be set aside

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, cited

Jarvis v The Queen (1993) 20 WAR 201, cited

Kirby v The Queen [2003] WASCA 164, cited

Le v The Queen [2004] WASCA 214, cited

McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555, cited

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, cited

Moffat v Seears [1986] NTSC 59, cited

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, cited

R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9, cited

R v Franklin [2009] HCATrans 221, cited

R v Glenister [1980] 2 NSWLR 597, cited

R v PW [2005] QCA 177, cited

R v Smith ex parte Attorney-General [1998] QCA 220, cited Roffey v Western Australia [2007] WASCA 246, cited

Seroka v Western Australia [2006] WASCA 284, cited

Vlek v the Queen [1999] WASCA 1038, cited

Wordsworth v Lowe [1988] TASSC 52, cited

COUNSEL:

J M Sharp for the applicant

M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant 

Department of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA:  I am indebted to Fryberg J for his valuable and interesting discussion of the concept of a “crushing” sentence and of how the concept relates to the totality principle.  However, I do not find it necessary to express any views on the subject in this case as it does not bear on the outcome of the application and was only touched on tangentially by counsel.  I otherwise agree with the reasons of Fryberg J and with the order proposed by him.

[2] MARGARET WILSON AJA:  For the reasons given by Fryberg J, the application for leave to appeal should be dismissed.

[3] FRYBERG J:  On 27 November 2009 the applicant pleaded guilty in this court to four drug-related offences, the most serious of which was producing methylamphetamine, four counts of receiving and 19 other counts involving property offences.  These consisted mainly of counts involving burglary or breaking and entering, often with circumstances of aggravation.  Nineteen different premises, both homes and businesses, were targeted.  The value of the property stolen and damage caused exceeded $100,000, of which more than $86,000 was not recovered.  He was sentenced to 12 months imprisonment on the production charge and six months on the other drug offences; two years imprisonment on the four receiving offences; and four years imprisonment on the remaining offences.

[4] Most if not all of the offences were committed while he was on parole under terms of imprisonment of up to three years imposed by the District Court on 7 September 2007 for a number of offences, the most serious of which was robbery.  He had been released on court ordered parole on 7 December 2007, having been granted bail on the present charges.  That parole had been suspended for four days in 2008 and again from 19 May 2009 until the sentencing date for the present offences.  As at that date, his full-time release date for the three-year sentence was in August 2011.  The sentences imposed in November 2009 for the property offences were ordered to be cumulative on the existing imprisonment and therefore will take effect at that time.  The sentences for the drug offences were made cumulative upon those for the property offences.  The judge ordered that the applicant be eligible for parole on 1 September 2012.  By that date he will have been in continuous imprisonment for a little over three years and three months and will have served half of the total of eight years imprisonment imposed on him.

[5] He now seeks leave to appeal against the sentences imposed on 27 November 2009.  The only ground set out in his application is that the sentences were manifestly excessive.  He sought and was granted leave to add two grounds to his proposed notice of appeal, namely that the sentencing judge erred in failing to give sufficient weight to his co-operation with authorities and in failing to give sufficient weight to the totality principle in considering whether to impose cumulative sentences in respect of the indictments before him.

[6] The circumstances of the property offences were typical of those which, unfortunately, are all too frequently encountered by the courts.  Usually, entry was forced into premises and easily portable property, such as laptop computers and jewellery, was stolen.  The drug offences were accepted as relating to production for personal use.

[7] The applicant was aged 30 at the time of sentencing and had a long criminal history dating back to age 17.  The history revealed a pattern of offending similar to that the subject of the sentencing, with occasional bouts of violence and some weapons and explosives offences added to the mix.  He has breached just about every form of order which imposes some level of trust upon him: bail, fine option order, community service order, probation, intensive correction order and suspended sentence.  He was first ordered to serve a sentence of actual custody in 1999 when he was aged 20.  He has been sentenced to custodial terms on six separate occasions since then.  He was, as the Crown prosecutor submitted to the sentencing judge, “a seasoned and persistent offender”.

[8] The sentencing judge took a number of mitigating factors into account.  After his home was searched on 22 April 2009 the applicant participated in an interview with police where he made admissions in respect of the drug offences and the receiving charges. He told police that he had stolen some of the property which was found during the search and agreed to participate in a “drive around” with the police.  As they drove he confessed to 19 of the property offences of which he was convicted.  In respect of those offences the police had no other evidence associating him with the offending.  With his consent all but two of the offences were prosecuted by way of ex officio indictment; those two offences were dealt with by way of full handup committal.  Also the recovery of property (to the extent that this occurred) was the result of his co-operation.  He has, in other words, provided substantial co-operation in the administration of justice, notwithstanding his refusal to name his accomplices and suppliers.

[9] As to his personal circumstances, his counsel informed the sentencing judge that one of the reasons for his re-engaging in offending behaviour was financial need brought about by unemployment.  She also told the judge that he was dealing to support drug and alcohol use.  He left school in year 11 after a troubled home life brought about by a particularly violent stepfather.  He was said to have used his time in prison productively and to be able to teach woodworking skills.  He was attending church in prison and also Narcotics Anonymous.  He was seeing a psychologist and a psychiatrist and had been prescribed medication to deal with anger management issues.

[10] On the question of co-operation in the administration of justice, His Honour said:

“There are a number of matters which I also take into account.  I particularly take into account your plea of guilty in respect of all offences.  Allied with that I give significant weight to your cooperation, and notably the fact that of the offences of which you are convicted today, 19 are the result of your volunteering information without which the prosecution against you could not have proceeded.  You have also made extensive admissions in respect of the other offences.  These matters must be recognised.

Beyond that you have been cooperative in terms of the proceedings which were brought.  For the offences which are the subject of an indictment originally brought in the District Court, there was a hand-up committal.  The balance of the charges, which is by far the majority, are the result of an ex officio indictment which seems to have had full cooperation on your part.  Your pleas are to be recognised as early pleas.  And all of those matters, notwithstanding your history, must be given some recognition.”

[11] As to the totality principle, His Honour said:

“I also take into account the fact that you have to serve the balance of your current term and the crushing effect of the sentences on you.  I have attempted to weigh all of those things up, including those which are in your favour, and while there will still be significant penalties imposed, I have attempted, to some extent, to mitigate them.”

[12] The applicant does not contend that any of the individual terms of imprisonment were excessive, nor that there was any error in relation to the parole eligibility date.  The only point argued was that the sentences for the drug offences should not have been cumulative upon the other sentences imposed; cumulative sentences failed to give proper weight to the applicant’s co-operation in the administration of justice and infringed the totality principle.  The respondent supported the sentence which was imposed below.

Co-operation

[13] In support of his submissions regarding co-operation in the administration of justice, the applicant referred to the decision of this court in R v PW.  He submitted that a similar error was made here to that made in that case.  There, having been accused of one sexual offence against his three-year-old daughter, the accused confessed to another two offences of which the police had no knowledge.  Keane JA for the court said:

“The learned sentencing judge did not recognise the dual relevance of the applicant’s special co-operation with the authorities and the special leniency which that level of co-operation is said to merit.  His voluntary confession is a compelling indication that special leniency in the interests of what appear to be substantial prospects of rehabilitation is called for in this case.  In my opinion, while some weight was afforded to the co-operation shown, his Honour erred in failing to appreciate the dual relevance of the applicant’s co-operation with the authorities.”[1]

[14] That was said immediately after his Honour quoted a passage from the judgment of Hayne J in AB v The Queen[2] where the point was made that leniency is extended to an offender who pleads guilty for a variety of reasons, including saving the community the cost of the trial and in some cases, demonstrating remorse or contrition.  An offender who confesses to an unknown crime, said Hayne J, may merit special leniency because the confession may well be seen not as motivated by fear of discovery or acceptance of the likelihood of guilt but as exhibiting remorse and contrition.  That was the dual relevance referred to by Keane JA in PW.

[15] In the present case there is little evidence of remorse, although there is some evidence of a prospect of rehabilitation.  The dual relevance to which Keane JA referred has little application in these circumstances.  PW was cited by both sides to the sentencing judge and his Honour recognised the principle that additional leniency should be extended to those who confess to an unknown crime.  I see no evidence that he failed to give this factor due weight.  It was reflected in the fact that the parole eligibility date fixed by the judge was only one year into the total five years of imprisonment which his Honour imposed.

Totality

[16] As to the totality principle, the applicant referred to the fact that his property offending was related to his drug offences.  That was the second reason for the offending advanced by his counsel below, the first being, as already noted, his need for money resulting from his unemployment.  I am sceptical about that submission, having regard to the scale of each type of offending, but that is of no consequence.  Any relationship between the two types of offending may have had some relevance to the question whether cumulative sentences should be imposed as a matter of principle, but it was not argued that such sentences were not open in the circumstances of the present case.  I do not think that a close relationship between different brackets of offending can any longer be said to be a requirement for the application of the totality principle.

[17] Under the heading “The Totality Principle”, the applicant submitted that the total effect of the cumulative sentences was crushing on him and was (semble: therefore) manifestly excessive.  That submission raises the question of whether the fact that a sentence can be described as crushing is itself a ground of appeal and the question of what is the relationship between such a sentence and the totality principle.  The applicant did not suggest that the totality of his imprisonment does not reflect the whole of his criminality.[3]

[18] That principle has been an element of sentencing practice in Australia for a number of years.  One of the earliest cases[4] cited in the relevant title[5] in the Australian Digest is R v Glenister, a decision of the New South Wales Court of Criminal Appeal; but the principle was being applied, perhaps not by that name, long before that case.[6]  The court there said:

“(39)Where sentences are imposed on an accused, or several accused, for a number of offences, the proper course is, in the end, to look at the aggregate sentence so that the sentencing judge ensures that the aggregate of the sentences fits the total criminal conduct of the accused person. … [The judge should] in the end, stands back in order to determine whether the totality of the sentences proposed is appropriate for the total criminality.”[7]

[19] Numerous examples of the application of the principle may be found throughout Australia during the 1980s and in 1988 the High Court delivered judgment in what has become the leading decision on the principle in this country, Mill v R.  In a joint judgment the court wrote:

“8.The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.  It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):

‘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’.”[8]

In short, the total sentence should be consistent with and proportionate to the criminality of the offending conduct.

[20] Two points should be made about that passage.  First, it is consistent with the formulation in Glenister.  Second, there is no reference to the notion of a crushing sentence and in fact that word does not appear anywhere in the reasons for judgment.

[21] “Crushing” has long been used as a pejorative adjective in relation to sentences.[9]  The earliest example which I have found of its use in connection with the totality principle is Moffat v Seears, where Kearney J, sitting in the Supreme Court of the Northern Territory on appeal from a Magistrate, said:

“24.It was submitted that the aggregate sentence of 3 years was crushing.  This is another aspect of the totality principle; the aggregate should not be disproportionate to the offender’s past record and future prospects.  What is involved is a consideration of mitigating factors, viewed in relation to the combined length of all the sentences.  It is particularly relevant when, as here, a young offender is facing his first sentence of substantial length.”[10]

In that passage the review of the totality of the sentences was related not only to the overall criminality of the offending conduct but also to the combination of mitigating factors.

[22] This aspect is also apparent in the Tasmanian case of Wordsworth v Lowe.[11]  There the court focused on the supposed crushing effect of sentences on prospects of rehabilitation, rather than requiring proportionality of the sentences in the light of all mitigating factors.  Underwood J, sitting on appeal from a Magistrate, wrote:

“The applicant’s previous convictions disentitle him to mitigation of penalty on account of good antecedents.  However, there still remained some prospects for his rehabilitation … .  In the case of youthful offenders the community has an interest in fostering a prospect of rehabilitation.  This is an important factor and weighs heavily in the scales against the deterrent factor. It is of particular importance on a consideration of the effect of the totality of a number of sentences for the prospect of rehabilitating a youthful offender must not be extinguished by a total sentence which, in the circumstances, is crushing.”[12]

[23] A comparable approach was taken in the seminal Western Australian case of Jarvis v R.[13]  In that case Murray J sought to absorb the consideration of mitigating factors into the concept of criminality.  That approach to the totality principle required regard to be had not only to the offending conduct but to the full range of circumstances.  The other member of the majority in Jarvis, Ipp J, accepted that approach, but with limitations:

“While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance.  The difficulty expressed in Vaitos [Vaitos (1981) 4 A Crim R 238] at [301] by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

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: Veen v R (No 2) [1988] HCA 14 ; (1988) 164 CLR 465; Evangelista and Laporte, unreported; CCA SCt of WA; Library No 920051; 30 January 1992) v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.[14]

However Murray J’s approach was subsequently approved by the Court of Criminal Appeal in R v Legg.[15]  From that foundation that court (and the Western Australian Court of Appeal) have arguably expanded the content of totality principle beyond what was considered in Mill.

[24] In Vlek v The Queen, the court held that there are mitigating factors arising out of the bare fact of the imposition of cumulative sentences.  Anderson J (with whom Pidgeon and Ipp JJ agreed) wrote:

“I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself.  When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately.  Jarvis v The Queen (supra), especially per Ipp J.  Furthermore, as was pointed out in Mill, the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence.  In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an ‘emphatic denunciation by the community’ of his or her criminal behaviour and attitude.  See Cross: The English Sentencing System (Butterworths 1971) at page 104.  Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence.  In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case.  Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative.”[16]

That passage does not appear to have been the subject of judicial consideration in Queensland and its authority here remains an open question.

[25] The Tasmanian Court of Criminal Appeal considered the question in 1992.  Green CJ, delivering the judgment of the court, wrote:

“I do not regard the sentences imposed (considered separately) as being of such a nature that they warrant the interference of an appellate court.  The question is whether, given that each of the sentences imposed is within the appropriate range, the total could be thought to result in too severe a punishment for the incidents in question … .  The approach is stated by Thomas, Principles of Sentencing, 2nd ed at 57 - 58, in the following terms:

‘A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects’.”[17]

[26] The second aspect identified by Kearney J was taken up by a Full Court of the Federal Court in McDonald v R.  After referring to the decision in Mill v R, the court wrote:

“20.When the court comes to apply the principle of totality, in a particular case where the prisoner has not previously been sent to gaol, the authorities (see Thomas, op. cit. 59-60) support the view that the accumulation of sentences now to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment.  If possible, justice should especially avoid placing such a person where, in Milton's words, ‘hope (can) never come (t)hat comes to all’ (Paradise Lost, 1:66-67).”[18]

The emphasis on the subjective effect of the sentence on the prisoner is here explicit.

[27] When the High Court decided Mill, it did not refer to “crushing” sentences.  It did not suggest that sentencing courts should consider the mitigating factors, particularly prospects of rehabilitation, as part of the totality principle.  Although it cited Thomas’s book, it did not cite the passage referred to in para [25] above.  It may be that this was because it assumed that these factors would already have been taken into account in assessing the component sentences whose totality is under consideration.  Requiring these factors to be considered a second time, risks distorting the sentencing process.[19]

[28] Since Mill was decided, crushing sentences have been considered in reasons for judgment in the High Court. In Postiglione v R, a case about parity, Dawson and Gaudron JJ made only a glancing reference:

“So far as the totality principle serves to ensure that an offender is not subjected to ‘'a crushing sentence' not in keeping with his record and prospects’, it may be that, when sentenced by Grove J, Savvas was entitled, in that respect, to somewhat more favourable treatment than Postiglione.”[20]

The quotation is of course the passage from Thomas’s book quoted above.  What their Honours said cannot be regarded as approval of it.

[29] In the same case, McHugh J wrote:

“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.  In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

‘There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.’

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.”[21]

How this result followed from King CJ’s dictum was not explained.  It is possible that McHugh J was seeking to submerge the notion of a crushing sentence in this context by assimilating it into the concept of the totality principle as expounded in Mill v R.  His Honour’s words should not in my view be understood the other way round, ie as meaning that the principle applies only when the total effect of the sentences is crushing.[22]  Importantly, they do not adopt Kearney J’s second aspect of the principle.

[30] Kirby J took the opposite position:

“The totality principle has a dual aspect as explained recently in the Supreme Court of Canada.  First, in the words of D A Thomas, Principles of Sentencing:

‘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 sentence is ‘just and appropriate’.’

Lamer CJ in R v M (CA) expressed approval of this passage and gave his own explanation:

‘The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.’

However, there is a second task for the totality principle to perform.  This is that stated by Clayton Ruby in his Treatise on Sentencing, also cited with approval by Lamer CJ:

‘The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate ‘just and appropriate’.  A cumulative sentence may offend the totality principle if the aggregate  sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects.’”[23]

[31] Kirby J did not explain what might be offensive in principle in having the aggregate of a properly imposed set of cumulative sentences substantially above the normal level of sentence for the most serious of the individual offences involved.  The words which I have emphasised in the quotation from Ruby’s Sentencing are taken verbatim from Thomas’s book.[24]  As already noted, they were not cited by the High Court in Mill.  I shall refer to them below.

[32] The authority of Kirby J’s dicta is, with respect, dubious.  As the Western Australian Court of Appeal has written of the first of the conditional clauses emphasised above:

“34... It is not apparent that Lamer CJ did in fact approve this statement … .

36I do not think the decision of R v M (CA) can be said to support the view that the totality principle does not permit the imposition of an aggregate sentence which is ‘substantially above the normal level of a sentence for the most serious of the individual offences involved.’

38… In any event, those two authorities [cited by Thomas] were decided prior to R v M, in which the Supreme Court of Canada definitively endorsed the imposition of an aggregate sentence substantially above the maximum term available for the most serious of the individual offences in that case.”[25]

It seems that the argument that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal term of sentences for the most serious of the individual offences involved was rejected by Ipp J in 1993.[26]  It also failed to find favour in the Victorian Court of Appeal.[27]

[33] Since Postiglione, the dicta of McHugh J, including the words of King CJ which he quoted, have in some jurisdictions been used to support the second aspect to which Kearney J referred.  In Kirby v The Queen[28], Roberts-Smith J wrote for the Court of Appeal of Western Australia:

“163The purpose of the ‘last look’ at the overall effect of the sentences to be imposed therefore, may be seen to involve two considerations.  The first is whether that aggregate sentence is appropriate (ie proportionate) to the total criminality involved.  A sentence may offend the totality principle without being ‘crushing’ (Jarvis v The Queen (1993) 20 WAR 201 per Anderson J at 3).  If the sentence is excessively disproportionate to the overall criminality, then some reduction will be required.  If that is not so, it is still necessary to consider whether the total effect upon the offender in the particular circumstances is so overwhelming as to call for the ‘merciful intervention of the court by way of reducing the total effect’.”

A little over a year later his Honour, again writing for the court, expressed the matter this way:

“118In considering the issue of totality there will be two questions - first, whether the aggregate sentence reflects and is proportionate to the total criminality involved and secondly, whether the total effect of the sentences is crushing.”[29]

[34] In 2007 McLure JA expressed the totality principle in these terms:

“24    The appellant relies on the totality principle which comprises two limbs.  The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

25The second limb is that the court should not impose a ‘crushing’ sentence.  The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16].  An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J).”[30]

That seems to represent the current state of the law in Western Australia, although not without controversy.[31]

[35] A similar approach seems to be adopted, at least from time to time, in Tasmania and the Australian Capital Territory, but I have not found much explicit discussion of the principle in cases from those jurisdictions.  It has also been followed in South Australia.  In that State the Court of Criminal Appeal has been careful to warn against the routine application of the second limb; against creating the appearance that offenders receive a “bulk discount”; and against the risk of double counting mitigating factors.[32]

[36] Differing views have been expressed at appellate level in Victoria. The “two-limb” approach to the totality principle was explicitly applied in DPP v Alsop[33] and it seems in R v Beck.[34]  On the other hand it has been pointed out that there is a difference between the principle of totality and the avoidance of a crushing sentence.[35]  In R v Cumberbatch, Chernov JA said:

“In my view, it is plain on the authorities that whether a sentence may be adjectively described as crushing on the offender is but one of the matters that is taken into account in determining whether it is beyond the range of sentences properly available to the sentencing judge.  The concept does not seem to constitute separate sentencing error, so that the mere fact that the sentence is crushing does not of itself suggest that it is necessarily a manifestly excessive sentence.  The majority of the Full Court in R v. Yates[3] explained that the concept of a crushing sentence connotes ‘the destruction of any reasonable expectation of useful life after release’.  But, as Murphy, J. pointed out in that case,[4] whether the sentence is crushing of the offender ‘cannot be determinative of the real issue, which is, whether the sentence imposed is appropriate to the crime having regard to all the circumstances’.”[36]

[37] There are numerous instances in New South Wales of sentences described as crushing being set aside.  Not many contain discussion of the present questions, ie whether the fact that a sentence can be described as crushing is itself a ground of appeal and what is the relationship between such a sentence and the totality principle.  In R v MAK the New South Wales Court of Criminal Appeal described the proposition that an extremely long sentence may be crushing upon the offender as a matter that is considered under the totality principle.[37]  That passage was subsequently cited in support of the (slightly different) proposition that the totality principle was designed, inter alia, to avoid a crushing sentence.[38]

[38] On the other hand, that court “has remarked, on more than one occasion, that a description of sentences as ‘crushing’ does not articulate some applicable test”.[39]  It has characterised that language as embodying the totality principle affirmed in Mill, while noticing the dicta of Dawson and Gaudron JJ and Kirby J in Postiglione.  I have found no case in which the dual-limb concept of the totality principle was adopted.

[39] Much the same is true in Queensland.  “Crushing” sentences have frequently been overturned and references have been made to the totality principle and to whether a sentence under review was crushing, but there does not seem to have been any focused discussion of the present questions.  In R v Smith ex parte Attorney-General Chesterman J (as he then was) wrote:

“I add deferentially, as an aside, my opinion that the essence of the principle is not to avoid imposing a ‘crushing’ sentence on the offender but rather to ensure that the aggregate sentence fairly and justly reflects the total criminality of the offender's conduct.  I respectfully adopt what Ipp J said in Bowman (1993) 69 A Crim R 530 at 542:

‘While the subjective effect of the cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance.  The difficulty expressed in Vaitos (1981) 4 A Crim R 238 at 301 by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.’

The overriding principle is accordingly that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct.”[40]

There does not appear to have been any discussion in this State of the dual-limb principle, although it has been referred to.[41]

[40] The foregoing review of cases on totality is intended to be neither comprehensive nor seriously analytical.  Its purpose has been to demonstrate that the two questions posed at the outset of the discussion remain as open questions in this State.  The cases suggest that whatever meaning is attributed to “crushing”, a crushing sentence may but need not be set aside.  If that is so, then it cannot be a proper ground of appeal simply to show that a sentence was crushing.  Whether associating the word with the totality principle adds anything to the standard requirement for the court to consider factors such as age, intellectual capacity and prospects for rehabilitation in relation to any sentence or sentences which it may impose remains a matter for consideration.

[41] Such a consideration would benefit from a detailed historical analysis of the totality principle.  Much of the authority upon which the second limb rests can be traced to the passage in Thomas: Principles of Sentencing referred to above.[42] Thomas places the words “a crushing sentence” in quotation marks and the footnote to the quotation reads, Raybould 1.6.70, 192/70”.  I have not attempted to locate that (presumably English) case for two reasons.  The first is that it is not necessary to do so for the purposes of this decision.  The second, I confess, is that I was deterred from attempting to do so by a submission made by the Victorian Director of Public Prosecutions on an application for special leave to the High Court:

Raybould has never been able to be found by anybody who has looked for it, including us, and our research has extended to the Crown prosecution service in London.  Also in Western Australia in a case called Butler Justice Franklin was looking for Raybould and to the provenance of this concept of crushing and his Honour said it is not otherwise referred to in Thomas and the reader is left in ignorance as to the circumstances in which a principle came into being or the reasoning behind it.”[43]

[42] Sufficient unto the day is the evil thereof!  It is unnecessary to carry out that research because it is unnecessary for the purposes of the present case to determine whether demonstration that a sentence was crushing is sufficient to ground a successful appeal.  Even if it is, I do not consider the sentence imposed in the present case answers that description.  The applicant will be eligible for parole on 1 September 2012, when he will be 33 years of age.  If he then wishes to live a useful life[44], he will have adequate opportunity to do so.  By that date he will have been in continuous imprisonment for a little over three years and three months and will have served half of the total of eight years imprisonment imposed on him.  If he is not released on parole he will still have adequate time to effect his reformation.  His criminal history suggests that he does not have strong prospects of rehabilitation, but if the hopeful signs referred to above[45] bear fruit, there is no reason to think that his sentence will cause that fruit to wither on the vine.

[43] The applicant relied on the decision of this court in R v Williams[46].  The reasons for judgment in that case do not use the word crushing.  The case provides an example of the application of the totality principle and with its citation of the decision in R v Clements[47] reminds the reader that one situation in which care must be exercised is where a term which is ordered to be served cumulatively does not begin to run until some date well into the future.  It does not assist the present applicant.  The period of imprisonment imposed on him will begin to run in August this year, only 22 months after the sentencing date.

[44] The respondents submitted that the terms imposed in the present case, when looked at in totality, were proportionate and appropriate to the gravity of the offences and the totality of the applicant’s criminal behaviour.  It submitted that the sentences looked at individually were at the very bottom of the appropriate sentencing range.  It is unnecessary to refer to the cases cited in support of these propositions, as the applicant did not submit otherwise.  They are in my judgment correct.

[45] The sentences imposed were not manifestly excessive; they gave proper recognition to the applicant’s co-operation in the administration of justice; and they did not offend the totality principle.  The application should be dismissed.

Footnotes

[1] [2005] QCA 177.

[2] [1999] HCA 46 at [113]; (1999) 198 CLR 111 at p 155.

[3] It is not easy to see how such a submission could be supported without placing full details of the applicant’s earlier offending before the sentencing court.

[4] The only earlier decision was determined on the basis that the combined total of two cumulative sentences fell outside the general pattern of sentencing which had developed in the Supreme Court of Western Australia over the previous 10 years: Magee v R [1980] WAR 117 at p 118.

[5] Criminal Law, The Australian Digest, 3rd Edition, Title 21, Binder 18 at p 17,359.

[6] See, eg, Wise v R [1965] Tas SR 196 at p 209.

[7] [1980] 2 NSWLR 597 at p 612; see also R v Holder [1983] 3 NSWLR 245 at p 260 per Street CJ and R v Smith and Shoesmith (1983) 32 SASR 219.

[8] [1988] HCA 70; (1988) 166 CLR 59 at p 62-63.

[9] For example, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at p 521.

[10] [1986] NTSC 59.

[11] [1988] TASSC 52.

[12] Ibid at [9].

[13] (1993) 20 WAR 201.

[14] Ibid, cited Herbert v The Queen (2003) 27 WAR 330 [10].

[15] [1998] WASCA 90.

[16] [1999] WASCA 1038.

[17] Graeme Alan Bryant v R [1992] TASSC 33, Emphasis added.

[18] [1994] FCA 956; (1994) 48 FCR 555 at p 563.

[19] R v E (2005) 93 SASR 20 [40].

[20] [1997] HCA 26; (1997) 189 CLR 295 at p 304.

[21] Ibid at p 307-308. I note in passing that counsel for the accused respondent in R v M was none other than Clayton C Ruby.

[22] Johnson v The Queen [2004] HCA 15 at [22]; (2004) 78 ALJR 616 at 624.

[23] [1997] HCA 26 [8]; (1997) 189 CLR 295 at p 340 (emphasis added).

[24] Principles of Sentencing, 2nd ed (1979), pp 57-8.

[25] Seroka v Western Australia [2006] WASCA 284 (citations omitted).

[26] Bowman v R (1993) 69 A Crim R 530 at p 541, cited by Malcolm CJ in Herbert v The Queen (2003) 27 WAR 330 [27].

[27] R v Zaydan [2004] VSCA 245 [21].

[28] [2003] WASCA 164.

[29] Le v The Queen [2004] WASCA 214.

[30] Roffey v Western Australia [2007] WASCA 246.

[31] Western Australia v Wallam [2008] WASCA 117 at [46] (McLure JA), cf [141] ff (Murray A-JA); Giglia v Western Australia [2010] WASCA 9 [43]; Juma v Western Australia [2011] WASCA 54 [32]; McLean v Western Australia [2011] WASCA 60 [61]; Birch v Western Australia [2011] WASCA 101 [30].

[32] R v B (2005) 91 SASR 200 [16]; R v Cramp (2010) 106 SASR 304 [52], [61]; R v E (2005) 93 SASR 20 [38], [40].

[33] [2010] VSCA 325 [30] (Redlich JA, Hansen JA and Vickery A-JA agreeing).

[34] [2005] VSCA 11 [19] (Nettle JA, Vincent JA and Cummins A-JA agreeing). See also R v Boyes (2004) 8 VR 230 [27].

[35] R v Barnes [2003] VSCA 156 [31] (Callaway JA, Buchanan and Eames JJA agreeing).

[36] (2004) 8 VR 9 (Vincent JA and Bongiorno A-JA agreeing; emphasis added).

[37] [2006] NSWCCA 381 [17].

[38] Kerr v R [2008] NSWCCA 201 [27] (Price J, Spigelman CJ and Simpson J agreeing); Heller v R [2008] NSWCCA 241 [16] (Hislop J, McClellan CJ at CL and Simpson J agreeing).

[39] Einfeld v R [2010] NSWCCA 87 [181] (judgment of the court), citing Taala v R [2008] NSWCCA 132 [42], Barton v R [2009] NSWCCA 164 [26].

[40] [1998] QCA 220.

[41] R v Baker [2011] QCA 104 [47].

[42] Paragraph [31].

[43] R v Franklin [2009] HCATrans 221.

[44] R v Yates [1985] VicRp 3; [1985] VR 41.

[45] Paragraph [9].

[46] [1995] QCA 522.

[47] [1993] QCA 245.

Close

Editorial Notes

  • Published Case Name:

    R v Schmidt

  • Shortened Case Name:

    R v Schmidt

  • Reported Citation:

    [2013] 1 Qd R 572

  • MNC:

    [2011] QCA 133

  • Court:

    QCA

  • Judge(s):

    Muir JA, M Wilson AJA, Fryberg J

  • Date:

    21 Jun 2011

Litigation History

Event Citation or File Date Notes
Primary Judgment SC1565/09 (No Citation) 27 Nov 2009 Date of Sentence.
Appeal Determined (QCA) [2011] QCA 133 [2013] 1 Qd R 572 21 Jun 2011 Application for leave to appeal against sentence refused: Muir JA, M Wilson AJA and Fryberg J.

Appeal Status

{solid} Appeal Determined (QCA)