JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CIVIL 

CITATION	:	SHEEDY -v- RIOLO [2010] WASC 170 

CORAM	:	MURRAY J 

HEARD	:	17 JUNE 2010 

DELIVERED	:	17 JUNE 2010 

PUBLISHED	:	7 JULY 2010 

FILE NO/S	:	SJA 1039 of 2010 

BETWEEN	:	ALYSON JANE SHEEDY
Appellant
 
AND
 
FRANK RIOLO
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA 
Coram	:	MAGISTRATE RK BLACK 
File No	:	PE 60773 of 2009, PE 60774 of 2009, PE 60775 of 2009, PE 60776 of 2009, PE 60777 of 2009 

Catchwords:
Criminal law and procedure - Sentencing - Whether aggregate term of 14 months imprisonment should have been allowed to run concurrently with other sentences for stealing as a servant - Totality principle 
Legislation:
Nil 
Result:
Extension of time granted
Appeal dismissed 
Category:    B 

Representation:
Counsel:
Appellant	:	Mr S B Watters
Respondent	:	Mr M A Holgate 
Solicitors:
Appellant	:	Thames Legal
Respondent	:	Director of Public Prosecutions (WA) 

Case(s) referred to in judgment(s):

Collins v The State of Western Australia [2007] WASCA 108
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Penny v Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Reynolds v The State of Western Australia [2010] WASCA 60
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v Wallam [2008] WASCA 117

MURRAY J:  
An extension of time
1		The appellant was sentenced following an earlier plea of guilty in the Magistrates Court on 21 January 2010 for five offences of stealing as a servant.  If she was to appeal to this court against the sentences imposed she was obliged to institute the appeal by 18 February 2010.  The appeal notice is dated 16 April 2010.  It is therefore about two months out of time and an extension of time is sought.
2		That application is supported by an affidavit by her solicitor.  The evidence is that the solicitors instructed Mr Watters to investigate the prospects of an appeal on 9 February 2010.  Legal aid was sought, but was delayed by the need to have available a transcript of the proceedings before the Magistrates Court when sentence was imposed.  Legal aid was granted on 15 April 2010.  Presumably by that time Mr Watters had given  his advice.  But in any event, as I have said, the appeal was instituted on 16 April 2010.
3		The delay is not great.  There is no evidence that any of the appellant's legal advisers behaved in a dilatory fashion or that the respondent was in any way prejudiced, and I extended time to 16 April 2010 to enable the appeal to be heard.
Relevant proceedings
4		On 16 October 2008 the appellant was sentenced in the District Court for 30 offences of stealing as a servant, one offence of attempted stealing as a servant and one offence of stealing.  They were all related matters.  Having been charged, she was admitted to bail and so the sentences imposed dated from 16 October 2008.  For each offence she was sentenced to 8 months imprisonment.  Three of the sentences were ordered to be served cumulatively.  The aggregate term of imprisonment imposed upon her was therefore 2 years.  Eligibility for parole was ordered.  She therefore became eligible for parole on 16 October 2009.  However, she had on 8 October 2009 been charged with the offences which later brought her to the Magistrates Court and which are the subject of this appeal.  Her first appearance in court in respect of those matters was on 14 October 2009.
5		I was told that her parole was suspended on 9 November 2009 and later cancelled.  She therefore commenced again to serve the sentences aggregating 2 years imposed on 16 October 2008 which will, having regard to the short period of time when she was at liberty on parole, expire on about 7 November 2010.
6		The five offences which brought her before the Magistrates Court on 21 January 2010, were committed on 29 August 2008, 5 September 2008, 12 September 2008, 22 September 2008 and 30 September 2008, after she had been charged with the offences which were dealt with in the District Court on 16 October 2008, and while she was at liberty on bail.  For each of those offences she was sentenced to 7 months imprisonment.  The sentences were allowed to run from the date of their imposition on 21 January 2010.  
7		Two of those terms were ordered to be served cumulatively and the rest were allowed to run concurrently, making an aggregate term of 14 months imprisonment.  Again, an order of eligibility for parole was made.  She would therefore become eligible for parole after serving 7 months of these sentences, that is, on 21 August 2010, and the aggregate term of imprisonment will expire, if she is not released on parole, on 20 March 2011.  The effect of the imposition of the sentences on 21 January 2010 is therefore to potentially extend the term of imprisonment by some 4 1/2 months and to defer eligibility for parole until 21 August 2010, 7 months after the sentences commenced to run.
The facts
8		The offences were committed upon the appellant's employer, a corporate agency which had the administration and management of 22 different strata companies.  The appellant was employed by the company in question from 27 June 2008 to 8 October 2008 as the company's strata manager.  That gave her the power to have access to the accounts and records of her employer and to the general trust account.  She was empowered to authorise the payment of invoices by the company.  
9		Virtually on a weekly basis on the dates of the offences she would draw up a list of payments to be made by her employer and present that to the principal of the company for authorisation.  Mostly, the payments were to meet regular, legitimate obligations, but false payments were inserted, payable to an account in the name of the appellant's mother, to which she had access and from which she could withdraw money for her own use.  She drew the invoices and listed the payments in a way which made them appear to be regular legitimate payments, as they purported to be.
10		The amounts involved were not insubstantial.  They were $3,507.88, $8,798.00, $6,896.80, $9,240.00 and again, $9,240.00, a total of $37,682.68.  The most serious features of the offending behaviour were that it was planned, it took advantage of the position of trust the appellant occupied, it was repeated on five occasions and the offending occurred while the appellant was on bail waiting to be dealt with by the District Court for a much more serious group of offences of precisely the same character.
11		As occurs in so many of such cases, the offences were committed in tragic circumstances.  A pre‑sentence report was obtained.  It revealed that after a difficult and often traumatic childhood, the appellant had become involved with two men, one of whom she married.  Both relationships failed.  Both were abusive in nature, with violence perpetrated both upon the appellant and her children.  When she came before the Magistrates Court to be sentenced, she was aged 41 years.  Her children were still relatively young, being aged 21, 19 ad 14.
12		One of them however, a son, suffered from an addiction to illicit drugs.  He had accumulated substantial drug debts and was threatened by people associated with the son's supplier, who came to the appellant's home.  The debts amounted to some $60,000.  The appellant committed the first group of offences for which she was sentenced in the District Court to obtain money to pay off these debts, although the total sum stolen was said to be greater.
13		When she was apprehended in relation to those matters, it became clear to her that she was likely to be imprisoned, as indeed she was, when she was sentenced for the offences.  Her children were with her mother who was 70 years of age, in ill health and unable to work.  The family, including the appellant, lived in rented accommodation.  Neither of the men who were the fathers of the appellant's children, were prepared to offer any financial support for the family.  
14		The appellant feared that the rent for their home could not be paid without her income while she was in prison and she feared that the children and her mother would lose their home.  Hence the commission of the second group of offences, the proceeds of which were deposited in an account to be used by the family (innocent of the source of the funds) and were not recovered.  In the Magistrates Court the appellant was ordered to pay compensation to the real estate company of the total amount of $37,682.68 which had been stolen.
15		A psychological report was provided to the Magistrates Court.  It showed that for a long time the appellant had suffered from a depressive illness.  As a result of the commission of the offences, she had been undergoing a process of treatment and counselling and was said to have made significant progress in overcoming her depression.  However, as at the date of the report, 16 January 2010, the psychologist made it clear that in his view, much more work was required before there could be any confidence that the appellant would not, under stress, revert to negative ways of thinking, of the kind which had produced the commission of the offences.
16		The pre‑sentence report was sympathetic.  It recommended a community‑based disposition so that the appellant might continue with the positive gains she had already made in her participation in a programme of treatment and counselling in the community.  Of course, when sentenced, the appellant was again serving the unexpired portion of the sentences previously imposed upon her.
17		The reasoning of the Community Corrections officer who was the author of the pre‑sentence report, is well encapsulated in his concluding recommendation.  He says:
Ms Sheedy appears before the Court as a middle aged single woman whose offending behaviour is directly linked to her maternal instinct to protect her family.  She is very remorseful for her actions and admits that she did not approach the situation she found herself in with a clear head and acted on emotion and impulse.  Ms Sheedy, at the time, also had a perceived lack of community support, which she has now come to realise through counselling is not the case.  Her struggle with Depression and a lack of support from her children's Fathers were also contributing factors.
The decision of the magistrate and the appeal
18		The Magistrates Court was constituted by Magistrate Black.  His Honour's remarks on passing sentence show that he was alive to the matters which were relevant considerations, both in aggravation and in mitigation of the appellant's culpability.  He referred to the terms of the pre‑sentence report and the psychological report.  He said he had regard to the pleas of guilty and the significant features of the appellant's record.  
19		He did not overlook the fact that the offences were committed over a relatively short period of time and he said that the amount of money involved was not 'insubstantial', the sum of approximately $37,000.  He had regard to the fact that the offences were committed while on bail for a more substantial group of similar offences and he did not overlook the fact that the sentences for those offences were still being served.  His Honour said he had regard for 'matters of totality'.
20		His Honour said:
[C]learly at the time of the commission of these offences, you were very, very well aware that you simply could not deal with - take other people's property.  Stealing as a servant has always been considered to be a very serious matter because it involves not just dishonesty but a breach of trust, and I'm told that in relation to these matters, you were in a position of trust.  You were the strata manager of the company, you had access to various programs et cetera, and as a result of that you were able to obtain these funds.
The superior court of this state has said on many occasions that people who behave in this sort of way can look forward to a term of imprisonment.  That is the only way that is appropriate to deal with them except in certain circumstances which do not apply in these particular incidents, and indeed as the result of the commission of these offences, your parole has been suspended; you are presently in custody, so again, as counsel has indicated, the available options for sentence to me are very, very limited.  I suppose they are a fine and imprisonment, immediate imprisonment.
Clearly, a fine is not appropriate given all of the matters that are before me including the fact that it's said you have a relatively large amount of outstanding fines in any event.  So that leaves it seems to me no option but to sentence you to a term of imprisonment - immediate imprisonment - in relation to these matters (ts 9 ‑ 10)
21		From the sentences so imposed, the appellant appeals on a single ground that the magistrate erred:
in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referrable to the Appellant personally.
22		A non‑custodial disposition which would take effect subject to a grant of parole is no longer advanced, nor is it sought to have the court hold that a suspended sentence would have been the appropriate disposition, again, of course, subject to the grant of parole in relation to the previous sentences.
23		The appellant simply argues for the proposition that upon totality grounds, while the magistrate was imposing sentences within the appropriate range and while it is not argued that the discretion miscarried because they were too long, his Honour erred in the order that two of the sentences were to operate cumulatively.  The appellant argues that all the sentences, rightly being imposed to run from the date of their imposition on 21 January 2010, should have been permitted to be served concurrently with each other and with the sentences imposed on 16 October 2008.  
24		In that event, as can be seen, the effect would have been to add nothing to the total term imposed on the two occasions when the appellant was before the District Court and the Magistrates Court.  Presumably however, because an aggregate term of 7 months imprisonment would have been imposed, the appellant does not contend that eligibility for parole might have been ordered and therefore the effect of the imposition of five terms of 7 months imprisonment running concurrently, would simply have been, as was the case with the sentences structured as the magistrate imposed them, to defer eligibility for parole for a period of 7 months from 21 January 2010.  
25		However, the relevant question is whether to impose sentences aggregating 14 months imprisonment with eligibility for parole, extending the total period of time which might be served by some 4 1/2 months in relation to the five offences before the Magistrates Court, demonstrates error in the miscarriage of the magistrates' sentencing discretion on totality grounds.
The totality principle
26		In The State of Western Australia v Wallam [2008] WASCA 117, in a part of the case which was not reversed in the later decision of The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229, I endeavoured to summarise and set out by reference to decided cases, what I perceived to be the content of the totality principle [132] ‑ [144].  I said there that I found unhelpful the tendency of the courts to state the principle as having two limbs.  
27		The first limb, as it is often put, may simply be said to be that in a case where there are a number of sentences imposed on the same or different occasions by the same or different judges, perhaps with no connection or common element other than the fact that sentences of imprisonment are to be served at the same time or consecutively by the same offender, the sentencing court must review the aggregate term arrived at and ask itself the question whether in the light of the matters of aggravation and mitigation, matters concerned with the nature of the offending behaviour and the personal circumstances of the offender, the term is properly proportionate to the total criminality involved.  The term should be no longer than the reasonable exercise of sentencing discretion requires to serve all the purposes of the imposition of punishment.
28		The second limb of the totality principle is often said to be whether the total term is crushing in its effect.  When that term is used, the court means that the aggregate term should not be such as to destroy the reasonable expectation of a useful life upon release, to destroy hope for the future, or, because it is unduly punitive, to work against the offender's prospects of rehabilitation.
29		The difficulty I have in the application of the second limb of the totality principle is that it is not the case that both limbs of the principle must be satisfied before the aggregate term is to be reduced.  Rather, it is an alternative test for the application of the totality principle.  Viewed in that light, although it is an objective test which does not seek to measure subjectively the effect upon the particular offender, it seems to me to set the bar too high.  
30		I find it difficult to conceive of a case where the aggregate term may be said to be so severe as to destroy all reasonable expectation of a useful life upon the completion of its service which will not be regarded as hopelessly out of proportion to the total criminality involved in the offending behaviour.  It seems to me to be better to concentrate upon the question of proportionality, because a sentence which is properly proportionate to the total criminality will, I am sure, never be a sentence which must be set aside because it infringes the second limb of the totality principle.
31		Nonetheless, the court continues to state the content of the principle by referring to the two limbs, eg recently in Moody v French [2008] WASCA 67; (2008) 36 WAR 393.  And so in this case, I had regard to both limbs and to the effective term in aggregate, as I have referred to it above, having regard to the unserved portion of the previous aggregate term upon which there was the partial accumulation of the term the subject of the appeal to this court: Penny v Western Australia [2006] WASCA 173; (2006) 33 WAR 48.  I have not looked at the question of totality in the context of the consideration when the appellant might, under the second term imposed, again become eligible for parole.
32		I have had regard to recent decisions of the Court of Appeal in relation to sentences imposed for repeated offences of stealing as a servant.  I have read the cases of Collins v The State of Western Australia [2007] WASCA 108; Reynolds v The State of Western Australia [2010] WASCA 60 and the cases referred to in those decisions.  As often happens, the exercise was of limited utility because of the wide variety of circumstances attendant upon the offences dealt with in particular cases.
33		To my mind, the question in this case was whether, having regard to all the circumstances, both aggravating and mitigating in their tendency, the imposition of an aggregate term of 14 months imprisonment by the Magistrates Court, structured in a way that caused it to overlap the aggregate term previously imposed, so that the effect was to extend the period of imprisonment which might need to be served by some 4 1/2 months, offended the totality principle and required the court to adopt the solution proposed by the appellant and to simply allow all five of the sentences of 7 months imprisonment, to be served concurrently with each other and with the existing term.
34		In my view, the question only has to be stated in that way to make it clear, as I held on the hearing of the appeal, that the answer was that the sentences did not offend the totality principle and the appeal should be dismissed.  
35		This was a serious and deliberate lapse into the commission of offences of stealing as a servant while on bail for previously committed offences of that kind.  The amount stolen was substantial, the breach of trust involved was manifest and the appellant's motive for committing the offences provided little mitigation.  
36		Such mitigation as there was, lay in the remorseful early pleas of guilty and the appellant's recently found willingness to deal with her depressive illness and disordered thought processes which led to her offending.  That could not, in my view, substantially detract from the need, for both particular and general deterrent purposes, to reflect the commission of the offences in question in punishment to be served in addition to that already imposed for the quite separate series of offences dealt with in the District Court.
37		It was for those reasons that I dismissed the appeal.