Re Patrick Anthony Murrell v R [1985] FCA 14; 4 FCR 168 (6 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: PATRICK ANTHONY MURRELL
And: THE QUEEN
No. ACT G91 of 1984
Criminal Law
4 FCR 168

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(2) and Blackburn(3) JJ.

CATCHWORDS

Criminal Law - Appeal from sentence - Accused served period of imprisonment in another jurisdiction in between offence and trial - Whether such period to be taken into account in sentencing.

Criminal Law - Appeal from sentence - Whether more than one cumulative sentence may be imposed under Crimes Act 1914 s.19(2).

Criminal Law - Appeal from sentence - Sentencing considerations where other offences are taken into account under Crimes Act 1900 s.448.

Crimes Act 1914 (Cth) s.19.

Crimes Act 1900 (N.S.W.) s.448.

Interpretation Ordinance 1937 (A.C.T.) s.7.

Criminal Law - Sentence - Australian Capital Territory - Cumulative sentence - Power to impose - Second cumulative sentence - Crimes Act 1900 (NSW), s 447 - Crimes Act 1914 (Cth), s 19(2) - Interpretation Ordinance 1937 (ACT), s 7.

Criminal Law - Sentence - Australian Capital Territory - Taking other offences into account - Effect upon sentence imposed - Crimes Act 1900 (NSW), s 448.

Criminal Law - Sentence - Factors to be taken into account - Offences committed across State lines - Imprisonment interstate prior to sentence for earlier offences - Delay in sentencing - Effect of earlier imprisonment. Held: (1) There is power in the Australian Capital Territory, in the appropriate circumstances, to impose a second cumulative sentence of imprisonment because: (a) (Per Fox J, Bowen CJ concurring) the provisions of the Crimes Act 1914 (Cth), s 19(2), prior to its repeal in 1982, by virtue of the Interpretation Ordinance 1937 (ACT), s 7 apply to the Australian Capital Territory in respect of offences committed before 1 November 1982.

Hayes v. The Queen [1967] HCA 29; (1967) 116 CLR 459, distinguished.

(b) (Per Blackburn J) the provisions of the Crimes Act 1900 (NSW), s 447, applied.

(2) When a court is sentencing for more than one offence it must have regard to the whole situation to ensure that the total period of imprisonment is one which best meets the situation.

R. v. Hobson (1942) 29 Cr App R 30; R. v. Walsh (1973) (noted Thomas, Current Sentencing Practice, p 11050) and R. v. McAllister (1982) 30 SASR 493, considered.

(3) Where a prisoner is to be sentenced for offences committed prior to serving a term of imprisonment interstate, special considerations arise including the resultant delay and staleness of the offence and the consequences of being dealt with by separate courts.

R. v. Todd (1982) 2 NSWLR 517, approved.

(4) Observations by Fox J (Bowen CJ concurring) upon (i) the taking into account of other offences; (ii) circumstances where sentences should be cumulative.

HEARING

1984, November 1; 1985, February 6. 6:2:1985
APPEAL

Appeal from sentences imposed on the appellant in the Supreme Court of the Australian Capital Territory.

B J Salmon, for the appellant.

K J Hempenstall, for the respondent.
Cur adv vul t

Solicitors for the appellant: G Rees, Legal Aid Office (ACT).

Solicitor for the respondent: Australian Government Solicitor.
BAG

ORDER

The sentence ordered by the trial judge on the first count be set aside, and in lieu thereof the appellant be sentenced to six months imprisonment on the first count.

The sentence of eighteen months on the second count be confirmed, to be served concurrently with the sentence on the first count.

The sentence of two years on the third count be confirmed, to be cumulative on the first two sentences.

The non-parole period ordered by the trial judge be set aside, and in lieu thereof the appellant serve a non-parole period of eighteen months.

Orders accordingly

DECISION

I agree with the orders proposed by Fox J. and with his reasons.

This is an appeal from sentences imposed on the appellant in the Supreme Court of the Australian Capital Territory on three charges of sacrilege to which he pleaded guilty.

The appellant is now thirty-three years old. He has an appallingly long list of convictions recorded against him, the first being when he was fourteen years old. He has had a seriously disadvantaged upbringing. In more recent years, at least, his conduct has been affected by the taking of drugs and by alcholic liquor. At the time of the commission of the present offences he was taking the drugs serepax and mandrax, and says he was drinking up to a bottle and a half of bourbon whisky a day.

His past offences have mainly been of stealing and housebreaking. Several have been for vagrancy. There have not been any convictions for crimes of violence. It has been calculated that from the time of his first conviction, when he was released on probation, he has spent about fourteen years in custody. He says that the maximum period of freedom between time in institutions has been eight months. He has committed offences while on probation, and the later two of the offences the sentences for which are at present under consideration, were committed while he was on a recognizance to be of good behaviour ordered in the Canberra Court of Petty Sessions.

The first crime of sacrilege occurred between 16 and 19 September 1980, when he broke and entered the Greek Orthodox Church in Kingston and stole $1.50. The second occurred on 7 December 1980 when he broke and entered the Salvation Army Temple at Braddon and stole money and securities to the value of $2,619. Of this amount $645.69 was recovered by the police. On the third occasion, 30 April 1981, he stole a wallet containing $4.00 from St. John the Baptist Church at Reid. In order to effect the first entry, he broke a small window (apparently not of special value), to gain entry on the second occasion he forced a door, and on the third occasion he seems simply to have gained entry by pushing against a door. He said he needed the money stolen in order to support his drug and drinking habits.

At the hearing, the appellant asked, pursuant to s.448 of the Crimes Act 1900 that an additional eight charges be taken into account. This course was not opposed by the Crown, and his Honour took them into account. They were crimes of larceny of small amounts, and of breaking, entering and stealing, mostly of money or property of very small value, but one in which the value of the property taken was $1,606. The premises to which the offences related were churches, or schools, with one exception, which involved stealing from an individual. The crimes took place between November 1980 and about May 1981. In November 1980 he three times stole small sums of money from St. Patrick's Catholic Church, Braddon.

The learned judge sentenced the accused to eighteen months imprisonment on each of the first and second counts, the sentences to be cumulative, and on the third count, which, as his Honour observed, was committed while on bail from the first two, the accused was sentenced to two years imprisonment, cumulative on the sentence on the second count. The total was five years. He ordered a non-parole period of three years.

The appellant gave evidence, and I set out some passages from it:

Mr. Gillies (for the accused)

"If his Honour was minded not to sentence you to a term of

imprisonment today, what are your future plans? - - - To get some help to rearrange my life. I mean, to help me to adjust to the outside life which I seem to have trouble doing on my own.

What are your goals in relation to improving your life? - - - Well, one day I hope to settle down, go with society, do their laws and one day hope to marry.

And how do you intend to embark upon that desire? - - - Well, if I get the chance I am then willing to sign into some sort of rehabilitation programme where I can get that kind of help.

Now, you have told courts in the past that you wish to change your lifestyle, have not you?- - - Yes, I have.

And, what has happened on those occasions?- - - I have been sentenced to gaol terms.

And what has happened after your release from gaol?- - - I get out and the first thing I think of is alcohol.

And what happens then?- - - More trouble. I get back into trouble, I go back to gaol.

If his Honour was minded not to gaol you today, why would it be different on this occasion?- - - I have reached the age where I should have settled down long ago, and, hopefully, with some help and some counselling, I can change my lifestyle.

Have you spoken to anybody about getting some help?- - - From the WHOS Organisation.

Have you ever led a normal life?- - - Unsuccessfully.

I did not hear that?- - - I mean I have tried but the alcohol got the

better of me; the pills got the better of me; and then I found I had to get more money to supply - to keep that habit going and I have had to get into more trouble."

and later,

Mr. Hempenstall (for the Crown) -

"Well, that is what I am asking. If you are released, do you think the

temptation would be there to go back to Serepax and Mandrax?- - - The temptation would be there, yes.

And similarly with alcohol?- - - Well, with alcohol you can buy it anywhere.

Yes, I realise that. But you have told us you have got a problem with that, and you know what it does to you?- - - Yes, I do.

Do you think that you have now reached the position where you could avoid drinking alcohol?- - - Yes, I can.

On your own, or with assistance from others?- - - With assistance.

And you have spoken to someone from the We Help Ourselves

organisation. I take it that was fairly recently, was it?- - - Yes, sir."

In relation to parole he gave this evidence in answer to his counsel:

"Mr Murrell, you have been on parole before, have not you?- - - Once, sir.

You have been subject to the supervision of a parole officer?- - - Yes, sir.

Were you ever - I withdraw that. Did you ever discuss with that parole officer a programme of rehabilitation?- - - We - yes, sir, I did, but it was never carried through. I was gaoled before it happened."

The Welfare Officer's report (he did not himself give evidence) contained the following observations:

"Mr. Murrell frequently stated that he was now 33 years old and felt he had to settle down and change his life into a more legitimate one. While Mr Murrell would like to do this, he was unable to suggest a way this might be done which could give the Court any re-assurance of his probable success. When the possibility of living at a drug rehabilitation centre was suggested, he agreed to this, though he did not seem to comprehend any connection between his traumatic upbringing and his drug usage. His main reason for favouring this course of action appeared to be his desire to avoid the possibility of a prison sentence. The Salvation Army officers in Canberra were asked to assess Mr Murrell for inclusion in their Drug Rehabilitation programme. They concluded he would not benefit from their programme because of his lack of motivation."

The Welfare Officer's evaluation was as follows:

"Mr Murrell has had a very disturbed upbringing and life, to the extent that he would appear unable to function satisfactorily outside of an institutional setting. He now feels he would like to change his lifestyle, but because of his restricted experience of freedom as an adult, does not appear to have the skills or knowledge of life other than that he had lead to date ie. with alcohol and drug abuse, unemployment, and with considerable involvement in minor crime.

Placement in a 'work release' scheme would appear the most useful setting for him. A suitable alternative to such placement in the ACT is however not known to the Welfare Branch."

Counsel for the accused has drawn our attention to the time the accused has spent in custody waiting to be dealt with on the present charges. Two charges are now over four years old, the third just under. Apparently the accused was charged on the first two counts in January 1981, and on 14 January 1981 he was committed for sentence in relation thereto. Not having been sentenced, he was given bail by the Supreme Court on 20 February 1981, an interval of thirty-seven days having elapsed while he was in custody. It was two months later that he committed the third of the offences. He was remanded in custody for trial on a charge for that offence on 1 June 1981, but was apparently released by mistake on 5 June 1981. He then, on 16 July 1981, committed an offence of theft of a motor vehicle in New South Wales, for which he was on 9 October 1981 sentenced to four and a half years imprisonment by a District Court. He was in custody for eighty-five days awaiting disposition of that case. In April 1984 he was discharged from gaol, and on 16 April he came into custody in the Australian Capital Territory, awaiting the disposition of the three sacrilege charges. We are told that on 15 May 1984 he formally indicated that he intended to plead guilty to all those charges. The cases were not dealt with until 2 August 19848 with the result that from 16 April 1984 the appellant had spent one hundred and eight days in custody, including seventy-nine days waiting only to be sentenced. Whatever the cause or causes, the total history of delay pending disposition of charges reflects ill on the administration of justice.

Substantive results, relative to sentencing, flow from this delay. One is that the offences have become stale. Much has happened since, in the life of the appellant and otherwise. Some relevant law has changed. To be dealing in the Supreme Court with an offence of stealing $1.50 (albeit after breaking into church premises) nearly four years after the event (of which only two and a half years was spent in gaol under sentence) seems, to say the least, incongruous and incompatible with the due administration of the criminal law. If the commission of crime is to be deterred, and punishment is to achieve its purposes, retribution should be as certain and as speedy as possible.

Counsel for the appellant has referred us to what was said in R. v. Todd (1982) 2 N.S.W.L.R. 517 (especially at pp.519-521) and submits, in effect, that the fact that the motor car offence and the sacrilege offences occurred in different jurisdictions (one in New South Wales, the other in the Australian Capital Territory) has unfairly resulted in a longer total period of imprisonment being ordered. He submits that if the sacrilege offences had been before the District Court Judge, the total period of imprisonment ordered, and the non-parole period, would probably not have been increased greatly as a result, and certainly not by the periods of imprisonment recently imposed. The submission, as I understand, would comprehend the extra offences which were taken into account under s.448 (see s.447B of the New South Wales Crimes Act, 1900). He puts similarly the converse situation, that of all offences being dealt with in the Australian Capital Territory. It is submitted, in short, that the accused would not, in either situation, have been sentenced to imprisonment for a total of nine and a half years. There are obvious limitations to the application of the principle invoked, but in my view there is substance in it in the present case. The learned judge said he took account of the passages in R. v. Todd (supra), in favour of the appellant, but he must have given no weight to them; without taking them into account the sentences he imposed could not in my opinion have been greater.

Sacrilege, in the ordinary meaning of that term, is a serious matter, and I believe it invites and receives strong public condemnation. The present are not, however, cases in which the conduct related to church buildings (except for the "entering") or to religious ornaments, fittings, or arrangements, or to literature within the church, or had any sectarian or anti-religious motivation. No sacrilege in the ordinary sense occurred, or was intended. What happened was the theft of money (and securities), unrelated to any religious aspect at all, except that the money (and securities) were in the churches. The position of the appellant is perhaps more appropriately seen as that of a vagrant, accustomed to engage in petty theft, who took advantage of the ready availability of the money (and securities) he took. This is not of course to say that the offences were in any way excusable, or to deny that sanctions against theft of property in churches should in general be more severe than in other cases. The nature of the particular offences however is important, having in mind the width of the language of s.106, which embraces the commission of any offence within a place of divine worship, consequent upon a breaking and entering.

When about to conclude his argument, counsel for the appellant was asked from the bench whether the imposition of a second cumulative sentence, as was imposed in the present case, was lawful. He therefore asked for, and was granted, leave to amend the appellant's notice of appeal by adding a ground that the sentence was unlawful in this respect.

The matter had been debated before his Honour, who had placed reliance on s.19(2) of the Crimes Act 1914 (Cth). It is established that s.444 of the Crimes Act of New South Wales does not allow more than one cumulative sentence (see Hayes v. The Queen [1967] HCA 29; (1967) 116 C.L.R. 459 at pp.461-2). Section 19(2) is as follows:

"19.(1) . . .

(2) Where a person is convicted of more offences (whether indictable

or otherwise) than one before the same Court at the same sitting and is sentenced to more than one term of imprisonment, the Court may direct that the sentence shall be concurrent or cumulative."

Section 19 was repealed in 1982, a new section substituted, but the old section continues in force in respect of offences committed before 1 November 1982, as were these. In Hayes, which was an appeal from the Northern Territory Supreme Court, the High Court was of the view that s.19(2) (when read in context with other sub-sections of s.19) permitted a second cumulative sentence, but it was held that s.19(2) was not applicable in the Northern Territory because of a provision of the Northern Territory Interpretation Ordinance.

Whether s.19(2) relates to the present situation depends on whether it is applied to the Australian Capital Territory by s.7 of the Interpretation Ordinance 1937 of that Territory. That section is as follows:

"7. (1) The provisions of sections five, seven, seven A, thirteen, fourteen, fifteen, seventeen, nineteen to twenty-one, twenty-one B and twenty-one C of the Crimes Act 1914-1932, as amended from time to time, shall, so far as they are applicable, apply in relation to all Ordinances as if an Ordinance were a law of the Commonwealth.

(2) For the purposes of this section, 'Ordinance' includes rules, regulations and by-laws under an Ordinance and every law of the State in force in the Territory as a law thereof."

There is no provision in this Ordinance similar to the one which in Hayes, and on the facts of Hayes, excluded the operation of s.19.

Although the reference to s.19 is in an Interpretation Ordinance, it is plain that what is being dealt with is not interpretation, but the application of substantive law. The subject is sentencing, and the case would be rare, if it exists at all, when the provisions of s.19, dealing with the power of the court to order sentences to be concurrent or cumulative would not be "applicable". Plainly, s.19 is intended in some circumstances, at least, to apply to sentences imposed in the Australian Capital Territory.

There is not in my view other legislation, of application in the Territory, which cuts down the apparent operation of s.19(2). Section 444 of the Crimes Act (N.S.W.), to which I have already referred, has been construed to enable the ordering of one cumulative sentence only, and there is scope for the application of the wider terms of s.19(2). If there were an inconsistency, there would remain the question of how it should be resolved.

Then there is s.447 of the Crimes Act (N.S.W.), which provides for two or more sentences to be made cumulative where a person is convicted on the same indictment of two or more offences similarly punishable. This section seems not to be the subject of authority, and the scope of its operation is uncertain. It should not be regarded as limiting s.19(2) or negativing its application.

I therefore agree with the learned judge that s.19(2) enabled the imposition of a second cumulative sentence.

A difficult question in the present case is to determine how the appellant should be regarded, whether as a social derelict beyond redemption, apt to commit petty crime whenever he feels the necessity, or whether there is a reasonable chance of a total or partial improvement in his behaviour. Plainly, imprisonment has not so far improved him, or lessened the risk to society of his committing crime. It may have increased and consolidated his criminal tendencies. It may be assumed that the learned judge took the view first mentioned, but he did not discuss the matter. The welfare report alludes to the problem, and I take from it that an improvement is likely to be effected only if the appellant is under strict supervision.

Unfortunately, both from the point of view of society and of the individual, the Court, when sentencing, has no way of regulating, or effectively stipulating, how an accused will be dealt with in prison, and in the Australian Capital Territory there are fewer options in relation to custodial offences (despite over a decade of comments by its judges) than, for example, in New South Wales. The Australian Capital Territory has its own Parole Board, and there is no reason to doubt that it gives close consideration to the requirements of each individual case, but there is a limit to what it can do, and to the resources available to it for effective control. Nothing the Court says can bind it, except, of course, for the effect given to the non-parole period ordered by the Court.

Acting on the principle that imprisonment should be a course of last resort, and of no longer duration than is necessary, and taking into account the matters I have mentioned, it seems to me that the head sentence (in total) should be reduced to three and a half years. The sentence on the first count was in my view manifestly excessive. It should be reduced to six months. It seems to me that the learned judge may have been influenced by the fact that the accused was to be sentenced on the second count to eighteen months, but the sentence must be that appropriate for the particular count (R. v. Smith (1975) Crim. L.R. 468), subject only to reduction when the total of sentences on different counts being dealt with at the same time is looked at.

The second offence involved property of a more substantial amount and the offence occurred during the period of a recognizance to be of good behaviour given on 10 October 1980 in the Court of Petty Sessions. In the circumstances, I would not interfere with the sentence of eighteen months imposed by the trial judge. This was not the first recognizance of which he had committed a breach; there had been an earlier instance in 1969.

The third offence involved a trivial amount, and there was at the most a technical breaking. It also was committed in breach of the recognizance just mentioned. Further, the notice given pursuant to s.448 (see the Sixth Schedule to the Act) stated that the offences to be taken into account would be considered in relation to the sentence on this count.

The present s.448 came into operation on 22 September 1983, several years after the subject offences were committed, and after all the offences to be taken into account under that section are said to have been committed. No argument was addressed to us on the question thus arising, but it seems reasonably clear that the section does apply (see s.32 of the Crimes (Amendment) Ordinance 1983). The previous position was that at common law (see R. v. Syres (1908) 1 Cr. App. R. 172). I am not aware of any practice having developed in the Australian Capital Territory before the present s.448 was passed of taking other offences into account.

No question has been raised before us as to the competence of the Supreme Court to take all offences into account, notwithstanding that some, at least, can and should be dealt with summarily (cf. s.448(3) and R. v. Warn (1937) 26 Cr. App. R. 115; R. v. Simons (1953) 37 Cr. App. R. 120; R. v. White (1981) 28 S.A.S.R. 9, 12). On the basis of these authorities the question, it would seem, is whether the Supreme Court had jurisdiction to deal with the offences, at first instance. I do not find it necessary to express any conclusion on the matter.

The rationale of the English practice, upon which s.448 is based, was expressed by Lord Diplock in R. v. Anderson ((1978) A.C. 964, 977):

"The laudable object of the practice is to give to a convicted offender the opportunity when he has served his sentence to start with a clean sheet and not to be arrested at the prison gates for some other offence which he committed before the particular offence which was the cause of his conviction. In effect, this practice involves the convicted offender who has been convicted of one offence in being punished for other offences for which he has never been formally arraigned, tried or convicted and to which he has never formally pleaded guilty."

No real guidance is offered by the authorities as to the effect on sentence which offences to be taken into account should have. It is clear that one is only sentencing for the offence for which there has been a conviction, on plea, or verdict, of guilty (sub-secns (1) and (7) of s.448 and see R. v. Hobson (1942) 29 Cr. App. R. 30). The fact that the maximum sentence is that provided for the particular offence (see sub-secn (4)) is evidence of this. The other matters are to be "taken into account". A consideration which immediately occurs to the mind is that, if the subject conviction stands, no proceedings can be taken in respect of the offence or offences listed. The offences are however not to be taken into account unless the prosecution agrees, and the Court thinks it proper to take this course (sub-secn (1)). An example of a Court's refusal to do so is R. v. Jones (1978) Tas. S.R. 126 (it is helpful to look also at the note of the case in (1979) 3 Crim. L.J. 42). It is possible to treat some only of the listed offences in this way. In the South Australian case of R. v. White (supra), Wells J., with whom White and Mohr JJ. agreed, said (pp. 11,12):

". . . it is contrary both to logic and to established practice for a sentencing judge to take into consideration offences that are not, viewed broadly, of the same kind and of about the same order of gravity as the offence or offences for which the convictions have been recorded. For example, it would place the judge in an impossible position if a prisoner convicted of larceny asked to have a previous offence of wounding with intent to cause grievous bodily harm taken into consideration. It would be equally absurd if a prisoner convicted of causing death by dangerous driving asked the judge to take into consideration an offence of arson."

The essence of this passage was cited with approval in R. v. McAllister (1982) 30 S.A.S.R. 493, 500, but see in R. v. Burtt (1981) 5 A. Crim. R. 34, where the Full Court of South Australia held that offences of false pretences could be taken into account on a conviction for assault with intent to rob whilst armed. The position in South Australia is not governed by legislation, as is that in the Australian Capital Territory, and I would wish to reserve for consideration when the matter arises the application in the Territory of the principle stated. The question does not arise in this case (no argument was addressed to us on the matter) because the "other offences" satisfy the test posed.

With the restraints mentioned, the matter is left to be dealt with in a practical way. A practical problem in relation to the other offences is that the statutory scheme does not provide for information being supplied to the Court as to the circumstances surrounding their commission. They will sometimes be volunteered by the accused person to the police or other authority when the latter has no record of them. The police may, on the other hand, have a record of unsolved crimes of a kind suited to the accused's modus operandi, or about which they question him (see Rainbird v. Samuels (1972) 4 S.A.S.R. 187). When the matter of sentence on conviction arises, they may have no particulars, or scant particulars, beyond these supplied by the convicted person himself. He has to be "charged" with the offences, and there must be sufficient particulars for that purpose. It is of course open to the court to require such further information as it needs.

On the matter generally, Cross (The English Sentencing System, 1981, p.88) has this to say:

"The number of offences taken into consideration is frequently great, amounting in one reported case to 513 other offences, (Coplin, (1964) Crim. L.R. 483) and requests with regard to numbers of offences in the '80's or '90's are by no means rare. There is no doubt that judges regard other offences taken into consideration as a ground for an increase in the sentence they would otherwise have given, although there are reported cases in which appellate Courts appear to have taken the view that one extra offence would not have made any difference. (Ames and Carey, (1938) 1 All E.R. 515) The precise effect of the taking of other offences into consideration would be an interesting, though difficult, subject of statistical research."

An examination of individual cases discloses that usually the taking into account of additional offences adds little to the punishment that would otherwise be imposed. This doubtless often results in a very lenient treatment of the accused, but a brake upon leniency becoming excessive is doubtless to be found in the necessity to have the consent of the prosecutor and the concurrence of the Court. What is apparent is that the Court when sentencing looks to the whole situation, and, by making sentences concurrent, or by other means, ensures that the total period of imprisonment is one which best meets the situation. I take at random two English cases, and one Australian case, as examples. In R. v. Hobson (1942) 29 Cr. App. R. 30 the appellant pleaded guilty to attempting to break and enter a dwelling-house. He was sentenced to the permissible maximum of two years imprisonment, this sentence taking into account two outstanding charges of housebreaking. The sentence was made concurrent with a sentence of one years imprisonment that the convicted person was serving for another offence. In R. v. Walsh (1973), noted Thomas, Current Sentencing Practice (loose-leaf service, Sweet & Maxwell) p.11050), the appellant pleaded guilty to six counts of burglary and other offences and 259 other offences were taken into consideration. He was sentenced to six years imprisonment. The case came before the Court of Appeal, whose decision is the subject of the note, because the accused subsequently denied commission of many of the offences. In R. v. McAllister (supra) the accused had been convicted on one count of robbery with violence and on another of office breaking and larceny. On the count of breaking and entering he had been sentenced to eighteen months imprisonment. On the count of robbery with violence he had been sentenced to four years imprisonment, cumulative on the other sentence. Some twelve offences, mainly of stealing and breaking entering and stealing were taken into account. The Full Court thought that the sentence on the count of robbery with violence was excessive, and may have been "manifestly" so; but when the other offences were taken into account, the sentences were justified. Wells J., with whose reasons Matheson J. and Millhouse J. agreed said, at p.503:

"If one views the whole gamut of the appellant's crimes, starting in December 1979 and ending in July 1981, it seems to me that the accumulated sentence of five and a half years imprisonment with a non-parole period of two years, is entirely appropriate to reflect the gravity of his total criminal conduct over that period. I am satisfied that the sentences fixed do not in any way represent a miscarriage of justice."

In the circumstances I am not prepared to say that the sentence of two years imposed by the learned judge on the third count should be reduced.

What does need further examination is the making of all sentences cumulative. In my view, following the ordinary principles, which I have recently discussed in R. v. Amos (a judgment of the Full Court not yet reported) the first two sentences should have been concurrent. I have already said, in this case, that a court has a duty to look at the total of the imprisonment imposed, and see how it fits the situation. Another way of putting the matter is to say that the total of five years imposed by the judge is out of keeping with the situation and manifestly excessive. In my view the total should be three and a half years.

What is of vital importance is the non-parole period. I would fix eighteen months, but I believe the view should be expressed at the same time that careful consideration should be given to the manner and extent of available supervision and its likely efficacy before the accused is released on parole at all.

I gratefully adopt the account of the facts given by Fox J.

It was contended for the appellant, first, that the sentences imposed by the learned sentencing judge were so excessive (especially in regard to their being cumulative) as to demonstrate error on his part; and secondly, that the learned judge was in error in that he paid too little regard to the principle said to be exemplified by R v. Todd (1982) 2 N.S.W.L.R. 517.

I deal with the latter point first. At pp.519-520 of that report, Street C.J. said this

". . . . where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

There is no evidence before the Court in this appeal of "the progress of the appellant's rehabilitation during the term of his earlier sentence". It is true that "he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion" but this is true of any convicted person who awaits sentence; the only difference in this kind of case is that he is left in the state of suspense for a much longer period than usual, and that during that period he is undergoing imprisonment. I strongly agree, with respect, with the principle that "sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach". But that principle is one of great weight where the delay is unreasonable, or apparently unreasonable, as for example this Court held it to be Crawley v. R. (1981) 36 A.L.R. 241. A case such as the one now before us, where the explanation for the fact that the crime is stale at the time of sentence is obvious to all, including the convicted person, namely that he was in the interval serving a sentence of imprisonment for a crime he had committed after the commission of the offences in question, is a case where the staleness of the crime can have less significance than in any other circumstance.

With respect, it seems to me that the case of R. v. Todd shows no more than that where a person is to be sentenced for a crime which he committed before a sentence which he has just finished serving, special considerations apply; those considerations may result in a more lenient sentence. The learned judge expressly considered the case of R. v. Todd, and I find it impossible to say that the sentences he imposed were such as to demonstrate that he paid too little regard to it.

Counsel for the appellant contended that had the appellant been sentenced for the larceny of the motor vehicle (committed on 16 July 1981) and the three offences of sacrilege, all at the same time by the same court, it is improbable that he would have been sentenced to a total period of nine and a half years in custody. So put, the argument seems to me to be of doubtful validity, since it conceals the fact that four and a half years' imprisonment for the larceny of a motor vehicle was an unusually severe sentence.

A feature of this case, to which the argument of counsel for the appellant gave in my opinion too little weight, was the fact that the learned judge, in accordance with s.448 of the Crimes Act 1900, (which of course requires the voluntary assent of the convicted person) took into account eight offences - four of larceny and four of breaking, entering and stealing, the total amount of money and value of goods being of the order of $2,300. These offences were committed between November 1980 and May 1981. The rationale of the practice of "taking other offences into consideration" has been thus explained, for English courts, by Lord Goddard L.C.J.:

"It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment:"

Batchelor v. R. (1952) 36 Cr.App.R.64, at pp.67-68. In England, the practice is not statutory, and there is no law that such taking into consideration provides a defence of autrefois convict, though no doubt in practice the effect is the same. It is entirely within the judge's discretion whether he does in fact increase the sentence because of the offences taken into consideration. In this Territory, however, the matter is regulated by s.448 of the Crimes Act 1900. Sub-section (5) forbids the prosecution of the offender for an offence so taken into account. In my opinion it must be regarded as normal for a sentencing judge, when other offences are taken into account under the section, to impose a more severe sentence than he would otherwise have imposed. Sub-section (4) ensures that the severity cannot exceed the maximum sentence for the offence of which the person is convicted. The fairness to the accused, and the benefit which may accrue to him by consenting to the taking of other offences into account, are obvious.

It was also contended by counsel for the appellant that each of the three sentences passed was in itself manifestly too severe. It was said that the learned judge gave too much weight to the maximum penalties provided for the offence. Section 106 of the Crimes Act provides that the offence is constituted by breaking and entering a place of Divine worship and committing any offence therein, and that the maximum penalty is 14 years' imprisonment. Counsel contended that had the appellant broken and entered a house and stolen $1.50, or $4,00 (the amounts involved in the first and third offences respectively) he would probably not have been sentenced to 18 months', or 2 years', imprisonment. I am not sure that I agree with this, in view of all the circumstances, including the appellant's criminal record, (and in the case of the third offence the fact that he was on bail when he committed it) but even if it were so, the question arises whether the argument is a sound one. Should not the fact that the maximum penalty for an offence against s.106 is 14 years' imprisonment, while the corresponding penalty for breaking entering and stealing from a house (s.112) is only 10 years, be a factor of weight?

The learned sentencing judge referred to

"the magnitude of the offence of sacrilege in the criminal calendar",

"the moral conscience of the community in cases of this nature"

and

"the affront to society that the offence connotes."

These remarks show that the learned judge gave weight to the fact that the maximum penalty fixed by the Act is 14 years' imprisonment, so that the Court's duty is to treat the offence of breaking, entering and stealing from a church more seriously than if it were breaking entering and stealing from a house. It should also be pointed out that it was only the amending Ordinance No.26 of 1983 which introduced the word "offence" into s.106; before that Ordinance, the corresponding word was "felony". The amending Ordinance in question was one which inter alia purported to do away, throughout the Crimes Ordinance, with all distinctions between felony and misdemeanour. The effect of the change in s.106 was to make the offence appear a more serious one, since the same maximum penalty is now provided for many kinds of conduct which would not previously have been offences against the section. It would not be right to assume that this was a merely accidental and unconsidered effect of abolishing the difference between felony and misdemeanour. The purpose of a legislative provision can properly be inferred from its terms.

As for the second of the three offences, an amount of more than $2,000 was involved. I cannot regard the award of 18 months' imprisonment as too severe.

It was also said that the three sentences, or at least two of them, ought to have been concurrent and not cumulative. Some discussion took place during the hearing of the appeal about whether the learned judge had power to award cumulative sentences, but it is now clear to me that he had such power because this was one of the rare cases in which s.447 of the Crimes Act 1900 was applicable. Whether it was correct, as distinct from lawful, to award cumulative sentences was a matter for the discretion of the learned judge. Concurrent sentences are usually proper when the offences in question are part of one criminal episode or enterprise (what D.A. Thomas, in Principles of Sentencing, 2nd ed. p.53, calls "the one-transaction rule"). That is certainly not this case. In Australia there seems also to be a practice of regarding a succession of crimes each being the commission of the same offence, committed within a short space of time, as appropriate for concurrent sentences. But this practice is not invariable, as Mitchell J. pointed out in Robinson v. Samuels (1978) 18 S.A.S.R. 137. I cannot say that the learned judge was wrong in not adopting the practice in this case. There is also the question whether the totality of the cumulative sentences is inappropriate for the offences considered together; Thomas (op cit.) describes this as the totality principle, and it is also applied in Australia: R v. Smith (1983) 32 S.A.S.R. 219. I do not find it easy to understand this principle. I find it hard to put into words the criteria to be applied in order to determine the appropriateness or otherwise of the totality of the sentences, as distinct from the appropriateness of each sentence. But, leaving that aside, I am not able to say that the total of 5 years' imprisonment for these three offences was, in the circumstances of this case, so excessive as to demonstrate error which should be corrected by this Court.

For all these reasons, I would dismiss the appeal.

I agree that if the learned trial judge was wrong in the manner in which he fixed the non-parole period, the period ordered by my brethren would be correct.