Herbert v The Queen

(2003) 27 WAR 330; [2003] WASCA 61

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Totality principle
4. › Multiple offences
5. › Whether aggregate sentence of 15 years for 33 offences manifestly excessive
6. › Whether severity of sentence increases exponentially as it increases in length
7. › Sentencing Act 1995 (WA), ss 32, 33
1. Criminal Law
2. › Sentence
3. › Burglary of habitation
4. › Prevalence of offence
5. › Increase in maximum penalty from 14 to 18 years
6. › Duty of courts to give effect to legislative policy
7. › Whether sentences of 5 years manifestly excessive
8. › Criminal Code (WA), s 401(2)(b)
1. Criminal Law
2. › Sentence
3. › Armed robbery
4. › Deterrence
5. › Whether sentence of 8 years for armed robbery in company manifestly excessive
1. Criminal Law
2. › Sentence
3. › Section 32 notice
4. › Pending charges dealt with by superior court
5. › Whether sentences to be judged as if imposed following conviction on indictment
6. › Sentencing Act 1995 (WA), ss 32, 33(3)

Quick Take

The totality principle requires that the aggregate sentence bear a proper relationship to the overall criminality, but the theoretical rationale remains contested — Malcolm CJ supports the 'exponentiality' thesis (that severity increases exponentially with length) while Anderson J prefers the explanation that the purposes of punishment are substantially achieved by the first sentence, leaving no purpose in requiring full additional terms. The exponentiality thesis, having been applied by numerous judges over 10 years, cannot be overruled by a three-judge bench. Sentences of 5 years for burglary of a habitation against a maximum of 18 years are not manifestly excessive given the legislative policy of firming up sentences for prevalent offences. Offences dealt with under s 32 notices are sentenced as if on indictment, not by reference to summary conviction maximums.