Giordimania v The Queen - [2020] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GIORDIMANIA v THE QUEEN
[2020] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Doyle and The Honourable Justice Hughes)
27 April 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
The appellant pleaded guilty to the following offences:
•       count 1: aggravated serious criminal trespass in a place of residence, with a maximum penalty of life imprisonment;
•       count 2: aggravated assault causing harm, with a maximum penalty of five years imprisonment;
•       count 3: aggravated robbery, with a maximum penalty of life imprisonment; and
•       count 4: false imprisonment, being a common law offence with the penalty at large.
In relation to counts 1, 3 and 4, the sentencing judge adopted a notional head sentence of seven years imprisonment. After a discount of approximately 30 per cent on account of the guilty pleas, his Honour arrived at a sentence of four years and 10 months imprisonment for this offending. In relation to count 2, the sentencing judge adopted a notional head sentence of 12 months imprisonment. After a discount of close to 20 per cent on account of the guilty plea, his Honour arrived at a sentence of 10 months imprisonment for this offending.
The sentencing judge ordered that the second sentence be served cumulatively upon the first, resulting in a total head sentence of five years and eight months imprisonment. His Honour fixed a non-parole period of three years and three months imprisonment.
In this appeal against sentence, the appellant relies upon two grounds, namely that the sentencing judge erred:
1.      in failing to make the sentences wholly concurrent; and
2.      in imposing a sentence that was manifestly excessive, in particular by reason of a failure to give adequate weight to the appellant’s intellectual disability.
Held, per Doyle J (Nicholson and Hughes JJ agreeing), dismissing the appeal:
1.      While the offending formed part of one course of criminal conduct, and there was a degree of overlap between the offences, the overlap was not complete. The conduct comprising count 2 extended well beyond what was necessary to, or inherent in, the aggravated robbery. It included violent and threatening conduct which was not only serious but also entirely senseless and gratuitous given that the male victim was bound and lying on the ground. As such, the sentencing judge was entitled to take the view that this offending added another dimension to the overall criminality that warranted an additional penalty in order to adequately address and achieve the objectives of the sentencing process.
2.      The starting points of seven years imprisonment for counts 1, 3 and 4, and 12 months imprisonment for count 2 were comfortably within the appropriate range given the objective seriousness of the offending.
3.      No error has been identified in the sentencing judge’s consideration of the appellant’s intellectual impairment, either in terms of his reasoning or the sentence he ultimately imposed. Both the head sentences and the non-parole period were comfortably within the permissible range having regard to the seriousness of the offending and the appellant’s personal circumstances.
Criminal Law Consolidation Act 1935 (SA) s 20(4)(c), s 137(1), s 170(1); Sentencing Act 2017 (SA) s 26, referred to.
R v Humby [2004] SASC 358; R v Lundberg (2013) 116 SASR 144; R v Siviour [2016] SASCFC 51, discussed.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Mann v The Queen [2019] SASCFC 155; Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; R v Campbell; R v Fowler [2017] SASCFC 79; R v Copeland (No 2) (2010) 108 SASR 398; R v Curry [2016] SASCFC 16; R v Delphin (2001) 79 SASR 429; R v Doolan [2017] SASCFC 80; R v Monks (2019) 133 SASR 182; R v Morse (1979) 23 SASR 98; R v Place (2002) 81 SASR 395; R v Simpson (2016) 125 SASR 352; R v Siviour [2016] SASCFC 51; R v W, PL [2017] SASCFC 119; R v Wakefield (2015) 121 SASR 569, considered.

GIORDIMANIA v THE QUEEN
[2020] SASCFC 28
Court of Criminal Appeal: Nicholson, Doyle and Hughes JJ

NICHOLSON J: I would dismiss the appeal for the reasons given by Doyle J.
DOYLE J: The appellant pleaded guilty to the following offences:
· count 1: aggravated serious criminal trespass in a place of residence in contravention of s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), with a maximum penalty of life imprisonment;
· count 2: aggravated assault causing harm in contravention of s 20(4)(c) of the CLCA, with a maximum penalty of five years imprisonment;
· count 3: aggravated robbery in contravention of s 137(1) of the CLCA, with a maximum penalty of life imprisonment; and
· count 4: false imprisonment, being a common law offence with the penalty at large.
The appellant pleaded guilty to the offending in counts 1, 3 and 4 at the committal hearing, but after the passing of four weeks since the first court date, and hence was entitled to a discount of up to 30 per cent in respect of those counts. He pleaded guilty to the offending in count 2 upon the first arraignment hearing, and hence was entitled to a discount of up to 20 per cent in respect of that count.
In relation to counts 1, 3 and 4, the sentencing judge adopted a notional head sentence of seven years imprisonment. After a discount of approximately 30 per cent on account of the guilty pleas, his Honour arrived at a sentence of four years and 10 months imprisonment for this offending. In relation to count 2, the sentencing judge adopted a notional head sentence of 12 months imprisonment. After a discount of close to 20 per cent on account of the guilty plea, his Honour arrived at a sentence of 10 months imprisonment for this offending.
The sentencing judge ordered that the second sentence be served cumulatively upon the first, resulting in a total or aggregate head sentence of five years and eight months imprisonment. His Honour fixed a non-parole period of three years and three months imprisonment, adding that it would not be appropriate to either suspend the appellant’s sentence of imprisonment or order that it be served on home detention.
In this appeal against sentence, the appellant relies upon two grounds, namely that the sentencing judge erred:
· in failing to make the sentences wholly concurrent; and
· in imposing a sentence that was manifestly excessive, in particular by reason of a failure to give adequate weight to the appellant’s intellectual disability.
Circumstances of the offending
The circumstances of the offending were detailed in a prosecution factual summary provided to the sentencing judge. They may be summarised as follows.
The male victim lived alone on a small farming property at Two Wells. The approximately 10 acre property comprised fenced blocks on which the male victim grazed livestock. The property also contained about six sheds that contained various vehicles and items of farm machinery.
Shortly before 3.00 am on Friday, 8 September 2017, at least five masked persons entered through the front door of the male victim’s house after it had been kicked down by the appellant (count 1). All of the intruders were wearing black clothing and had their faces covered by masks or balaclavas at the time of entry. They had travelled to the male victim’s property in two vehicles, one of them belonging to the appellant.
The male victim, who was in his bedroom at the time, was immediately tasered by a male who was wearing a mask with a skeleton print on it. He was then punched to the face by a male (the appellant) wearing a balaclava.
A visitor who was staying in the spare room – the female victim – was confronted by one of the intruders who held his fist up at her. The female victim, who was only 17 years of age, was told to stay on the bed and shut up. She was later directed to the lounge room, and told to sit on the floor next to the male victim. One of the intruders said to the female victim “Get on the floor, face down or I’ll knock ya, I’ll fucking knock ya one”.
The male victim’s hands were bound with gaffer tape by one of the male intruders. He was then repeatedly kicked and punched whilst lying on the floor. The male victim was also “jabbed in the back” with his own baseball bat. As a result of these assaults (count 2), he sustained pain to his right eyebrow, a laceration to his nose, and swelling and bruising to his left temple.
One of the male intruders, who appeared to be the leader, demanded phones, keys and money. At his direction, another of the male intruders held a knife to the back of the male victim’s neck as he was lying bound on the floor. Demands were made for money and other items of property (count 3). The apparent leader said “If you fucking move I’ll cut your fucking throat, don’t fucking move”. He then instructed another male intruder by saying “If he moves stab him, fucking kill him.”
A number of the complainant’s vehicles were stolen and driven away from the premises, including a Holden Statesman, a Holden Commodore, a Holden Rodeo, two Yamaha motorcycles and a Pit-pro motorcycle. Some other items were also stolen, including a tandem trailer, some money and electronic items including mobile phones.
The occupants or victims were ultimately detained for approximately 45 minutes. The intruders left the male victim’s hands bound with tape, and made their getaway in possession of the above vehicles and items. The male victim then managed to get his hands free, and telephoned the police.
The appellant was charged with four others (two men and two women) in respect of the home invasion. One of the other men pleaded guilty to aggravated serious criminal trespass in a place of residence, aggravated robbery and aggravated assault causing harm, and was sentenced by another judge. The other three have contested the charges brought against them, with their trial listed to commence in a few months.
The appellant was sentenced on the basis that he admitted being a participant in the above events, and in particular that he kicked in the door of the house, punched the male victim and passed the gaffer tape to another of the intruders knowing what it was to be used for. He then left the house to assist in stealing the vehicles before the balance of the assaults took place. While thus not the perpetrator of the balance of the assault upon the male victim, the appellant accepted that that he was responsible for the entirety of the aggravated assault by reason of the principles of joint enterprise.
The sentencing remarks
After summarising the circumstances of the offending, the sentencing judge noted the following in relation to the appellant’s personal circumstances.
The appellant is 36 years of age. He is of Maltese background and comes from a large family in which he is one of 15 siblings. His family were relatively poor, and his father was violent. He was bullied at school, and ceased attending in year 8. He was sexually abused from the age of nine or 10, leaving him “highly traumatised” and likely suffering from a chronic post-traumatic stress disorder with enduring personality change. From a young age he also experienced significant difficulties with substance abuse.
In relation to the appellant’s mental health issues and intellectual disability, the sentencing judge said:
You suffer from complex mental health issues, an intellectual disability and significant behavioural problems such as violence, impulsivity and you are prone to being easily influenced by others. These impediments are considered to be lifelong difficulties, including the self harm and suicidal thoughts. It is recommended that you undertake drug and alcohol rehabilitation and programs to enhance your prosocial skills, programs you have not had the advantage of in the past.
You have been on a disability support pension since 2005 following a diagnosis of schizophrenia.
The appellant has a 19-year-old daughter from a previous relationship, with whom he does not have any contact. He also has five-year-old twins and a seven-year-old daughter from another past relationship. These three children were removed from his former partner’s care, and they now live with the appellant’s sister in Melbourne. He maintains some limited contact with these three children. The appellant also has two daughters, aged three and eight, with his most recent partner.
Until a few weeks prior to his offending, the appellant had been living with his partner and their children in a Housing Trust home. However, the relationship broke down and he initially went and lived with his sister. He then went and stayed with an old school friend, who is one of the appellant’s co-offenders.
By this time, the appellant was not coping well and had reached what the sentencing judge described as “an overwhelming low point”. His friend supplied him with amphetamines and cocaine. The sentencing judge accepted that the appellant was pressured into participating in the offending at the last minute, and on the understanding that the male victim was a paedophile to be taught a lesson. The judge referred to defence counsel’s submission that the appellant was in a confused, vulnerable and suggestible mental state, and was in effect “in the wrong place at the wrong time”.
The sentencing judge acknowledged the degree of cooperation by the appellant with the police, his early pleas of guilty and his evident demonstration of remorse. He noted the appellant’s prior history of driving offences, assaults and dishonesty offences, and a short suspended sentence from an assault causing harm committed in 2008. But, as his Honour noted, the present offending was clearly the most serious charges the appellant had faced.
The sentencing judge accurately described the present offending as particularly serious, and noted its devastating impact on the lives of both victims. It is evident from the victim impact statements that both the male and female victim have suffered physically, mentally, emotionally and financially, and that they remain in fear.
Immediately prior to pronouncing sentence, his Honour returned to the topic of the appellant’s intellectual disability and said:
Offences of this kind ordinarily call for a strong deterrent component. On the other hand, the intellectual disability of an IQ below 70 is classed as ‘severely subaverage general intellectual functioning’. In the opinion of Dr White, your ‘reasoning abilities were no more than those of an average nine-year-old child such that [you] tended to be reactive and impulsive’. In the opinion of Dr Raeside, the ‘underlying personality disorder and substance abuse would have been primary factors …’ in the offending on this occasion.
The sentencing judge then identified the single head sentence that he considered appropriate in respect of counts 1 (aggravated criminal trespass), 3 (aggravated robbery) and 4 (false imprisonment), being seven years imprisonment reduced by approximately 30 per cent[1] on account of the guilty pleas to four years and 10 months imprisonment.
[1] In fact his Honour imposed a discount slightly in excess of the statutory entitlement of up to 30 per cent. But as this error (R v Simpson (2016) 125 SASR 352 at [13]-[14]) was in favour of the appellant, no complaint is made.
Turning to count 2 (aggravated assault), his Honour said:
For the aggravated offence of assault occasioning harm, in view of the comparatively[2] lesser and diminished role, an appropriate sentence is 12 months reduced by two months to 10 months imprisonment which again is close to the maximum reduction of 20% you are entitled to for the later plea of guilty on this offence, to be served cumulatively.
[2] The settled version of the sentencing remarks use the word “preparatory”, but it seems likely his Honour used or intended the word “comparatively”.
After thus identifying the head sentences that would be imposed, and indicating that they were to be served cumulatively, the sentencing judge emphasised the significance of the appellant’s personal circumstances to the non-parole period. His Honour mentioned, in particular, the appellant’s lesser involvement than the principal offenders, and his lesser degree of moral culpability and level of diminished responsibility. His Honour fixed what he described as a “merciful” non-parole period of three years and three months.
Sentencing structure adopted
As explained, the sentencing judge structured the appellant’s sentence by imposing two separate head sentences. While his Honour did not say so, the reason for the structure adopted by the learned sentencing judge appears obvious. Because of the different discounts available in respect of the two groups of offences, his Honour was required to either impose separate sentences or, if imposing a single sentence under s 26 of the Sentencing Act 2017 (SA), to expose how that sentence was arrived at by identifying notional starting head sentences for the individual offences and notional discounts for those offences before ultimately imposing a single sentence.[3] His Honour took the former approach.
[3] R v Wakefield (2015) 121 SASR 569 at [38]-[39]; R v Siviour [2016] SASCFC 51 at [37]; R v W, PL [2017] SASCFC 119 at [46].
Cumulative versus concurrent sentences
While the appellant does not criticise the structure of the sentence imposed, he contends that the sentencing judge nevertheless erred in making the two head sentences that he identified cumulative rather than concurrent. He contends that the offending was all part of a single course of criminal conduct, or one criminal enterprise; that the offences were proximate to each other in time, place and circumstance, and were all committed in furtherance of a single criminal intent.
The respondent acknowledges that the offending was all properly to be viewed as a single course of conduct. This is consistent with the prosecution case which was to the effect that the appellant was party to a joint criminal enterprise with his co-offenders to break into the complainant’s premises in company, while armed, and to engage in such conduct as was necessary to effect the robbery of the complainant’s property. However, the respondent emphasised the broad discretion afforded to a sentencing judge to structure the sentence in the manner considered appropriate, and in particular in the application of the principles underpinning the imposition of concurrent sentences.
In an often-cited passage from the reasons of Wells J in Attorney-General (SA) v Tichy,[4] his Honour said the following of the relevance of offending forming part of one course of criminal conduct:[5]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[4] Attorney-General (SA) v Tichy (1982) 30 SASR 84.
[5] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93.

While multiple offences forming one course of criminal conduct is a circumstance which may call for a degree of concurrency, it is not the only circumstance. Even if not aptly described as a single course of conduct, the similarity and proximity of multiple offences, and the consequential overlap in either the circumstances of the offending or in what is necessary to achieve the objectives of the sentencing process, may be such that something less than fully cumulative sentences will be sufficient to achieve those objectives.[6]
[6] R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106]; R v W,PL [2017] SASCFC 119 at [41].
The rationale underpinning the principles of concurrency is ultimately the need to ensure that, in a case involving multiple offences, the aggregate sentence is proportionate to the overall criminality and circumstances of the offending and the offender.[7] Understood in this way, those principles can be seen as but one of the sentencing options or mechanisms available to a sentencing judge in a case involving multiple offences to ensure proportionality in the aggregate sentence, with the sentencing judge retaining a broad discretion in terms of how best to structure the sentence to be imposed, and address the concern to ensure proportionality in the sentence(s) ultimately imposed.[8]
[7] R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106]; R v W, PL [2017] SASCFC 119 at [36]-[43].
[8] R v W, PL [2017] SASCFC 119 at [36], [38].
As a corollary of this, in considering a challenge to a sentence on the basis of a failure to properly apply the principles of concurrency, it is necessary to appreciate the latitude afforded to judges in structuring their sentences and to focus upon whether the sentence ultimately imposed was lacking in proportionality. As I said in R v W, PL (Bampton and Lovell JJ agreeing):[9]
Having identified the sentencing options available to a sentencing judge in sentencing for multiple offences, it should be emphasised that it is a matter for the sentencing judge to determine how best to ensure proportionality. In any given case, particularly where there is a large number of offences, there may be a number of potential approaches reasonably available to the sentencing judge. The sentencing judge might decide to group the offences in varying ways, and to reflect the concern to ensure proportionality either at the level of individual offences, at the level of a group or groups of offences, in the overall sentence, or, indeed, at more than one stage of the sentencing process. Appellate courts must be astute to ensure that the breadth of the sentencing judge’s discretion in this regard is respected. It will be rare that the selection of one approach, or sentencing structure, over another will of itself involve process error, or error in the sense required by the principles of appellate restraint set out in House v The King.
That said, while it will be rare that there will be a process error by reason of the sentencing judge’s decision to adopt, or not adopt, a particular approach, it will nevertheless remain open to contend that the ultimate sentence is infected by outcome error; that is, to contend that the sentence is manifestly excessive such that it can be inferred that it is infected by error (whether in the application of the principles of concurrency or totality or otherwise) despite that error not being apparent on the face of the sentencing remarks.
[9] R v W, PL [2017] SASCFC 119 at [50]-[51].
As mentioned, it was the differing discounts available for the early guilty pleas that likely led to the sentencing judge identifying two separate head sentences in the present case. While the identification of two head sentences was an appropriate course to adopt in those circumstances, this of course did not relieve the sentencing judge of the need to ensure that the aggregate sentence to be imposed was proportionate to the criminality and circumstances of the appellant’s offending.
It would have been open to the sentencing judge to identify separate head sentences for the two groups of offences, but then order that they be served concurrently, either wholly or partially, in recognition of the degree of overlap in the offending. Alternatively, it would have been open to his Honour to impose a single sentence under s 26 of the Sentencing Act, albeit after ensuring that he adequately explained the application of the differing sentencing discounts that were available as a result of the guilty pleas.
However, I do not think that the sentencing judge was required to structure the sentence in either of these ways. While the offending formed part of one course of criminal conduct, and there was a degree of overlap between the offences (for example, between the count 3 (aggravated robbery) and count 2 (aggravated assault causing harm)), the overlap was not complete. The conduct comprising the latter extended well beyond what was necessary to, or inherent in, the aggravated robbery. It included violent and threatening conduct which was not only serious but also entirely senseless and gratuitous given that the male victim was bound and lying on the ground. As such, the sentencing judge was entitled to take the view that this offending added another dimension to the overall criminality that warranted an additional penalty in order to adequately address and achieve the objectives of the sentencing process.
In my view, as long as the aggregate sentence remained proportionate having regard to the overall criminality of the appellant’s conduct (after taking account of the overlap between the various offences), then I do not think it can be said that the sentencing judge erred in the sense required by House v The King[10] or Markarian v The Queen.[11]
[10] House v The King (1936) 55 CLR 499 at 504-505.
[11] Markarian v The Queen (2005) 228 CLR 357 at [25].
It is not as though the sentencing judge overlooked the issue of overlap or concurrency. To the contrary, his Honour expressly indicated his intention that the sentences be served cumulatively. And for the reasons elaborated upon later in these reasons, I am not satisfied that either of the individual sentences imposed by the sentencing judge, or the aggregate sentence, were manifestly excessive even having regard to the degree of overlap in the various offences. Put another way, the individual sentences identified by his Honour adequately reflect or take account of the degree of overlap in the two groups of offending. I do not consider that the sentencing judge erred in not ordering that the sentences be served concurrently.
Manifest excess: diminished responsibility
In considering the appellant’s contention that the sentence imposed by the sentencing judge was manifestly excessive, I bear in mind the approach to the identification of manifest excess required by the High Court in Hili v The Queen.[12] This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[13] In the context of sentencing for multiple offences, regard must also be had to the need to ensure proportionality in the overall sentence through the application of one of the mechanisms available to address that concern. But ultimately, manifest excess is a conclusion that may not admit of lengthy exposition.[14]
[12] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
[13] R v Morse (1979) 23 SASR 98 at 99.
[14] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
There were various aspects of the appellant’s offending in this case that made it particularly serious. They included the remote and therefore vulnerable location of the premises broken into; the obvious level of premeditation and planning that preceded the offending; the knowledge or expectation on the part of the offenders that the male victim would be present at the time they broke into the premises; the number of offenders involved in the home invasion; the nature and range of the offensive weapons with which the offenders armed themselves during the course of the invasion and assault (namely the taser, knife, baseball bat and gaffer tape); the nature and extent of the violence perpetrated upon the male victim; the repeated and realistic nature of the threats made to the victims; the length and devastating effect of the ordeal from the perspective of the victims; and the nature and value of the items stolen.
The appellant’s personal role in the events was substantial. His car was used to transport some of the intruders. He joined in the commencement of the invasion and the assault of the male victim in that he kicked in the door, punched the male victim in the face and passed the gaffer tape to a co-offender knowing the purpose for which it would be used. He assisted in stealing the vehicles taken from the male victim.
At the same time, of course, I bear in mind that the appellant was not personally responsible for the balance of the violent and threatening conduct. His responsibility for those matters lies in him being party to a joint criminal enterprise. I also bear in mind that the appellant does not appear to have been involved in planning the enterprise, and had a different (although hardly mitigatory) motivation for joining in the enterprise.
There is a limit to the assistance that can be gained from considering other cases, particularly in circumstances where there are multiple and overlapping offences. But it is instructive to note a few cases in which the objective seriousness of each of the four offences the appellant committed has been underscored by the significant penalties imposed.
For example, in relation to aggravated robbery, this Court held in R v Place[15] that a sentence in the order of six to eight years imprisonment would be appropriate, at least in cases involving armed robberies of banks, service stations, pharmacies and other retail stores. Subsequently authority has confirmed that similar sentences will often be appropriate in the case of armed robberies of ordinary civilians or individuals, as opposed to businesses.[16]
[15] R v Place (2002) 81 SASR 395.
[16] R v Curry [2016] SASCFC 16 at [3]; Mann v The Queen [2019] SASCFC 155 at [65], [79]-[80].
The observations made by this Court in R v Delphin[17] in relation to the seriousness of offences of serious criminal trespass (including where aggravated) are also apposite:[18]
In the circumstances now prevailing, it would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20-24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender. Relevant factors will include the nature and circumstances of the trespass and the impact of the entry on the victim. Where other and more specific intentions of an offender can be alleged, that will be important in assessing the gravity of the offence. Such an intention may range from petty theft to larceny of very valuable property, from minor assault to killing or to a range of possible sexual offences. The more heinous intention will be likely to give rise to a heavier sentence.
…
In the case of aggravated serious criminal trespass in a place of residence, one hesitates to suggest an appropriate range of penalties, given the wide variety of aggravating circumstances that may apply, and it would be inappropriate to attempt any such prescription. It is sufficient to say that circumstances surrounding the nature of the trespass, the relevant intention, the effect on the victim and the circumstances of aggravation in s 170(2) will largely determine the extent of any greater penalty, leaving aside any factors personal to the offender.
[17] R v Delphin (2001) 79 SASR 429.
[18] R v Delphin (2001) 79 SASR 429 at [47]-[49].
A number of the features adverted to in the above passage as potentially enhancing the gravity of the offending were present in this case.
It is apparent from both R v Place and R v Delphin, and in any event obvious, that what is intended and occurs during the course of an armed robbery or serious criminal trespass may add significantly to the gravity of the overall criminality. This includes, for example, where the conduct for which sentence is to be imposed includes an assault or false imprisonment.
For example, in R v Lundberg[19] the appellant entered a country bank branch and stole approximately $120,000 during a planned and well-orchestrated robbery. The appellant had the assistance of an insider who worked for the bank and was also charged. While not using a weapon, nevertheless in committing the robbery, the appellant bound another employee of the bank and falsely imprisoned her for a total of about 30 minutes. When the appellant left the premises the employee’s hands were cable tied.
[19] R v Lundberg (2013) 116 SASR 144.
The appellant was convicted of the offences of aggravated robbery and false imprisonment. The sentencing judge imposed a single penalty for both offences, with a starting point of 10 years imprisonment.
The Court of Appeal allowed the appeal on sentence, reducing the sentence to one with a starting point of eight years imprisonment. The Court emphasised that, unlike in R v Place, the aggravated robbery did not involve the use of a weapon – which would have justified the sentence below. However, by reason of the manner in which the robbery was carried out, and in particular the false imprisonment which it involved, a penalty at the high end of the range indicated in R v Place was nevertheless appropriate.
I mention two further cases that are of some very general assistance.
In R v Humby,[20] the defendant in company with one other man broke into residential premises where two elderly occupants were both asleep. Both intruders were armed with wrenches. The victims were escorted to a dining room and detained for two and a half hours whilst approximately $5,000 worth of items were taken from the premises. The victims were tied to chairs so that the intruders could make their escape. The victims were also threatened.
[20] R v Humby [2004] SASC 358.
The defendant pleaded guilty to aggravated serious criminal trespass in a place of residence and robbery in company. He was 31 years of age, of low average intelligence and from a dysfunctional family background. He was sentenced on the basis of being addicted to amphetamines and having committed the offence to fund that habit. He had a significant history of offending, including convictions for breaking and entering, and dishonesty offences.
On a Crown appeal, Gray J (with whom Nyland J agreed) allowed the appeal and resentenced the defendant to a head sentence of eight years imprisonment, reduced from nine years on account of his guilty plea.
In R v Siviour,[21] the appellant was sentenced for a number of offences arising out of a home invasion which was motivated by an attempt to recover a drug debt, and which culminated in a number of assaults (including with a taser) and the false imprisonment and kidnapping respectively of the two victims. In re-sentencing on appeal, separate head sentences were identified for each of the offences, and included starting points of three years imprisonment for the aggravated serious criminal trespass, four years imprisonment and six years imprisonment for the false imprisonment and kidnapping of the respective victims, 10 months imprisonment for each of the three aggravated assaults, two years imprisonment for aggravated black mail, and six months imprisonment for theft. After (differing) discounts in respect of the various head sentences for the defendant’s pleas of guilty, and after grouping the offences by reference to the two victims and making the sentences concurrent within those two groups of offences, but cumulative between those two groups of offences, the Court of Appeal imposed a sentence of 11 years and three months imprisonment as appropriately reflecting the overall criminality of the appellant’s offending.
[21] R v Siviour [2016] SASCFC 51.
Returning to the circumstances of the present case, I consider that the starting points of seven years imprisonment for counts 1, 3 and 4, and 12 months imprisonment for count 2 were comfortably within the appropriate range given the objective seriousness of the offending, particularly bearing in mind the features of the offending identified by me at the outset of this section of my reasons. I do not think that the overall penalties imposed provide any basis for thinking that the sentencing judge failed to allow for the overlap in the offending. To the contrary, I consider that the sentences imposed indicate that his Honour was alert to the need to ensure that the overall penalty was no more than was necessary to achieve the relevant sentencing objectives having regard to the overall level of criminality involved in the appellant’s offending.
I have reached that conclusion even having regard to the appellant’s personal circumstances, and in particular his limited intellectual capacity.
As to the relevance of impaired intellectual capacity to the sentencing exercise, it may be relevant in various ways and at various stages. I recently undertook a review and summary of the relevant authorities in R v Monks.[22] It is not necessary to repeat what I said on that occasion. It is sufficient to observe that the relevance of the impairment will depend upon its severity, and the extent to which it influenced the defendant’s conduct or affected his ability to appreciate the gravity or wrongfulness of that conduct. And to observe that the impairment may be relevant to the defendant’s moral culpability, to the need for general deterrence and to considerations of personal deterrence, the defendant’s character and prospects of rehabilitation. In some cases it may also affect the hardship of a given sentence of imprisonment to the defendant.
[22] R v Monks (2019) 133 SASR 182 at [32]-[59]; see also R v Campbell; R v Fowler [2017] SASCFC 79 at [47]-[48] and R v Doolan [2017] SASCFC 80 at [33]-[35].
In the present case, the sentencing judge accepted the opinions of Dr White as to the impairment of the appellant’s intellectual functioning, holding that the defendant had “severely subaverage general intellectual functioning”, with “reasoning abilities … no more than those of an average nine-year-old child”.
I accept that the appellant’s intellectual impairment was not only significant, but also influenced his conduct in relation the present offending. While still able to appreciate the wrongfulness of his conduct, the appellant’s diminished ability to reason logically and rationally, and perhaps also to appreciate the gravity of his conduct, lessened his moral culpability for his offending.[23] Related to this, and as Nicholson J mentioned in R v Doolan,[24] while the fact that offending took place in company with others will ordinarily be an aggravating feature, less weight should be attached to this feature in a case such as the present given the potential for an intellectually impaired person to be swept up in the moment and to follow the conduct and lead of others.
[23] Muldrock v The Queen (2011) 244 CLR 120 at [54].
[24] R v Doolan [2017] SASCFC 80 at [34].
Ordinarily offending such as the present would call for a very high level of general deterrence. Conduct which involves such an extensive and frightening invasion of ordinary citizen’s personal safety (particularly within their own home) must be deterred as firmly and clearly as is consistent with ordinary sentencing principles. However, I accept that in a case such as the present where the defendant suffers from an intellectual impairment, there is a balance to be struck. Such a defendant is an undesirable medium or vehicle for achieving general deterrence, as well as the retributive and punishment objectives of sentencing. While this requires some “sensible moderation” of the role of these sentencing considerations, the level of the appellant’s impairment and the gravity of the offending nevertheless left room for a significant level of general deterrence.[25]
[25] R v Monks (2019) 133 SASR 182 at [42]-[43]; R v Doolan [2017] SASCFC 80 at [35].

While the above considerations were undoubtedly relevant to a determination of the appropriate sentence for the appellant, and operated generally to lessen or mitigate the sentence necessary to achieve the objectives of the sentencing process, the sentencing judge had clear regard to these considerations. In particular, as summarised earlier in these reasons, the sentencing judge took the appellant’s limited intellectual capacity into account both in determining the relevant head sentences to impose, and importantly also at the point of fixing what was a relatively merciful non-parole period.
In my view, no error has been identified in the sentencing judge’s consideration of the appellant’s intellectual impairment, either in terms of his reasoning or the sentence he ultimately imposed. Both the head sentences and the non-parole period were comfortably within the permissible range having regard to the seriousness of the offending and the appellant’s personal circumstances.
Conclusion
For these reasons, I would dismiss the appeal.
HUGHES J: I would dismiss the appeal for the reasons given by Doyle J.