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BOASE v. ROBERTS - (12 Dec 2017)

Where offences occur on separate occasions and involve separate transactions, cumulative sentences will generally be called for unless the totality principle requires another approach


In instant case, the Appellant was sentenced in the Fremantle Magistrates Court to a total effective sentence of 4 years' imprisonment in respect of 46 offences. The nature of those offences and the individual sentences imposed are set out in the table which is annexed to these reasons. By an appeal notice filed on 22 August 2017, the Appellant sought leave to appeal against his sentence. The appeal notice was filed four days late. The appellant was unable to obtain legal aid and represented himself in the appeal. In the circumstances the delay was not great and an extension of time was granted.

There was a single ground of appeal, which in essence is that the total effective sentence of 4 years infringed the totality principle. The appellant relied on both limbs of the totality principle, that is he said that the total sentence was disproportionate to his offending and was also crushing.

An appeal against sentence depends on finding error, either express or implied. If an implied error is alleged, the question is not what sentence the appeal court would impose if it were the primary court, but whether the discretion of the primary court miscarried. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that to be arrived at by simply adding up all the terms appropriate for the individual offences. Where the principle of totality is an issue, it is of relatively little importance how the aggregate is made up. Where offences occur on separate occasions and involve separate transactions, cumulative sentences will generally be called for unless the totality principle requires another approach. Where the aggregate sentence is appropriate and does no more than reflect the crimes committed, the totality principle will not be breached.

The Appellant's offending was clearly serious. It included 10 burglaries and five aggravated burglaries on business premises, three offences of stealing motor vehicles and two offences of stealing motor vehicles and driving recklessly to escape police pursuit. The magistrate was undoubtedly correct in characterising the offending as a spree that involved systematic and planned conduct engaged in for significant reward.

The Appellant was given an appropriate discount to reflect those pleas. He was a mature man at the time of the offending who made a deliberate decision to engage in the offences and persisted in them over a six-week period. The most weighty factors in this case were personal and general deterrence. Factors personal to the appellant, such as the impact on his family, could not be given great weight. The sentencing magistrate properly took into account the need to arrive at a just and appropriate aggregate sentence. She was clearly conscious of the objective seriousness of the offending conduct. The total effective sentence is an appropriate reflection of the total criminality and is not one that can be said to be outside the sound range of discretionary judgment.

As to whether the sentence was crushing, a crushing sentence is one that deprives a person being sentenced of any reasonable expectation of a useful life after release. The Appellant was 30 years old at the time of the offending. He will still be a relatively young man, when he becomes eligible for parole. Without under-estimating the effect that, imprisonment will have upon him, it could not be said that at the time he becomes eligible for parole he could not have any reasonable expectation of a useful life. The sentence cannot properly be described as one that is crushing in the proper sense. Leave to appeal was refused. Unless leave is granted in respect of a ground of appeal, the appeal is taken to have been dismissed.


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