Lane v The Queen - [2020] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
LANE v THE QUEEN
[2020] SASCFC 82
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
8 September 2020
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence.
The applicant was convicted by a jury of the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The offending occurred in 2016 at a service station on Halloween. The applicant, dressed in a costume, threatened the cashier in the service station, taking cash and cigarettes. As he was leaving he showed a machete, not previously visible on him, to a customer as a threat to not block or prevent his escape. This offending took place as one of a series of offences between January 2015 and January 2017.
The applicant was sentenced to eight years' imprisonment to be served cumulatively on an already existing sentence of what the sentencing judge understood to be 12 years, seven months and nine days. The sentencing judge increased the non-parole period from seven to 12 years. The antecedent report on which the sentencing judge relied overstated the sentence which the applicant was serving at the time, by two months.
The applicant appeals on the grounds that:
1. The sentence and non-parole period imposed were manifestly excessive.
2. The sentencing Judge erred in expressly declining to allow for the totality principle when sentencing the applicant who was 21 years of age at the time of the offence.
Held per Bleby J (Kelly and Livesey JJ agreeing), granting an extension of time to appeal, granting permission to appeal and allowing the appeal:
1. In holding that there was no sufficient reason to reduce any part of the sentence on account of the principle of totality, the sentencing judge erred.
2. The principle of totality warranted reduction of the total sentence.
3. The sentence is set aside.
4. A head sentence of eight years’ imprisonment and a non-parole period of five years is imposed.
5. Taking into account the conceded error in the antecedent report, that would create, in total, a head sentence of 20 years, five months and nine days, with a non-parole period of 12 years, commencing on 21 July 2017.
6. Both the head sentence and non-parole period are to be served partially concurrently with the previous total head sentence and non-parole period, respectively, such that the total combined sentence to be served is 16 years, with a relatively low non-parole period of nine years, commencing on 21 July 2017.
Sentencing Act 2017 (SA) s 10, referred to.
Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v E, AD (2005) 93 SASR 20; R v Reiner (1974) 8 SASR 102; R v Smoker (2016) 126 SASR 201, discussed.
Attorney-General v Tichy (1982) 30 SASR 84; Jarvis v The Queen (1993) 20 WAR 201; R v Beck [2005] VSCA 11; R v Cramp (2010) 106 SASR 304; R v Todd (1982) 2 NSWLR 517; Giordimania v The Queen [2020] SASCFC 28; Hoare v The Queen (1989) 167 CLR 348; Markarian v The Queen (2005) 228 CLR 357; R v B, RWK (2005) 91 SASR 200; R v Copeland (No 2) (2010) 108 SASR 398; R v Knight (1981) 26 SASR 573; R v Rossi (1988) 142 LSJS 451; Ryan v The Queen (2001) 206 CLR 267; R v W, PL [2017] SASCFC 119; Veen v The Queen (No 2) (1988) 164 CLR 465; Wong v The Queen (2001) 207 CLR 584, considered.

LANE v THE QUEEN
[2020] SASCFC 82
Court of Criminal Appeal

KELLY J: I agree with the reasons of Bleby J and the orders he proposes. I also agree with the additional observations of Livesey J.
LIVESEY J: I agree with Bleby J, for the reasons that he gives, that there was a failure to correctly apply the principle of totality, and that the appellant should be re-sentenced in the manner that he proposes.
As Bleby J points out, there was a particular need to pay careful regard to the overall effect of a number of sentences imposed by a number of Judges following an ‘addiction-fuelled two years’ of offending between 2015 and 2017.
As has been explained,[1] a sentencing Judge has considerable latitude in the exercise of the sentencing discretion when structuring a sentence, or a number of sentences, in order to achieve proportionality. Whilst in this case there could be no complaint about the sentence, standing alone, it is the overall effect of the multiple sentences that necessitated consideration of the principle of totality which is, amongst other common law principles, preserved by s 10(1) of the Sentencing Act 2017 (SA).
[1] R v W, PL [2017] SASCFC 119, [36]-[38] (Doyle J, with whom Bampton and Lovell JJ agreed) and Giordimania v The Queen [2020] SASCFC 28, [36] (Doyle J, with whom Nicholson and Hughes JJ agreed).
Totality has been recognised as having two aspects.[2] The first entails a final review or check to ensure that the overall punishment is proportionate to the circumstances of the offending and the offender.[3] In seeking to achieve proportionality a sentencing Judge has a number of tools and a broad discretion. In connection with this aspect of totality, these tools include concurrency,[4] lowering one or more of the sentences,[5] and the imposition of a single sentence under s 26 of the Sentencing Act 2017 (SA).[6]
[2]    R v E, AD (2005) 93 SASR 20, [37] (Doyle CJ) citing Postiglione v The Queen (1997) 189 CLR 295, 307-308 (McHugh J).
[3]    R v Smoker (2016) 126 SASR 201, [69]-[71] (Lovell and Hinton JJ), citing Mill v The Queen (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ), R v Knight (1981) 26 SASR 573, 576 (Walters, Zelling and Williams JJ) and R v E, AD (2005) 93 SASR 20, [38] (Doyle CJ).
[4]    Attorney-General (SA) v Tichy (1982) 30 SASR 84, 92-93 (Wells J) and R v Copeland (No 2) (2010) 108 SASR 398, [102]-[106] (Kourakis J).
[5]    Though in Mill v The Queen (1988) 166 CLR 59, 63 the Court emphasised that, where practicable, concurrency is preferable.
[6]    See generally R v W, PL [2017] SASCFC 119, [38]-[50] (Doyle J, with whom Bampton and Lovell JJ agreed).
The second aspect of totality is the amelioration of a sentence because it is ‘so crushing as to call for the merciful intervention of the Court by way of reducing the total effect’.[7] It is in connection with this second aspect of totality that consideration is given to the need to curb the prospect of despair which could be caused by a long sentence because this would be antithetical to rehabilitation.[8]
[7] R v Rossi (1988) 142 LSJS 451, 453 (King CJ), R v E, AD (2005) 93 SASR 20, [37] (Doyle CJ) and R v Smoker (2016) 126 SASR 201, [76] and [85] (Lovell and Hinton JJ).
[8] R v Smoker (2016) 126 SASR 201, [80]-[84], ‘the extension of mercy of a type beyond leniency that a Judge may be moved to grant to an offender in the ordinary course of determining the appropriate sentence overall. If this is to occur it must be upon considerations which are supported by the evidence, which permit objective judgment and which amount to more than an appeal to sympathy’.
It must be remembered that these are merely aspects of one principle which is applied in the exercise of a discretion. These aspects are not different principles. It may not be necessary to differentiate between the different aspects of the totality principle. For example, I would be reluctant to say that the second aspect will only operate where the sentence is otherwise proportionate, or that it can only operate in a rare case.[9] In an appropriate case it may be that both aspects will operate, in conjunction with proportionality,[10] as part of the ‘instinctive synthesis’[11] employed to determine what overall punishment is appropriate.
[9] Although it might only operate in ‘relatively infrequent circumstances’, R v B, RWK (2005) 91 SASR 200, [16] (Doyle CJ, with whom Duggan J agreed) cf R v Smoker (2016) 126 SASR 201, [85] (Lovell and Hinton JJ).
[10] Hoare v The Queen (1989) 167 CLR 348, 354 (the Court) and Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ).
[11] Wong v The Queen (2001) 207 CLR 584, [75] (Gaudron, Gummow and Hayne JJ) and Ryan v The Queen (2001) 206 CLR 267, [33] (McHugh J): ‘[s]entencing is not a mathematical process. Various factors have to be weighed’. Markarian v The Queen (2005) 228 CLR 357, [139] (Kirby J).
In this case it is a little difficult to know in what sense the sentencing Judge found that there was ‘no sufficient reason to reduce any part of the sentence on account of totality’. Perhaps he had in mind the absence of sufficient reason for the merciful intervention of the Court. In my view, however, the fact that the appellant had already been sentenced for offending which had occurred before, as well as after, the offending the subject of this appeal meant that careful regard needed to be given to the effect of the penalties which had already been imposed on deterrence, rehabilitation and the need for condign punishment.[12] As well, consideration needed to be given to the fact that this final sentence was ‘in itself harsher’ and had a greater penal effect.[13]
[12] R v Smoker (2016) 126 SASR 201, [78] (Lovell and Hinton JJ).
[13] Jarvis v The Queen (1993) 20 WAR 201, 217 (Anderson J) and R v Cramp (2010) 106 SASR 304, [58]-[61] (Kourakis J).
In my view, the evident failure to have regard to these matters resulted in a sentence for a young man that was disproportionate to his overall criminality and which required recognition, probably by ordering concurrency. Indeed, had all of the offences come before the same sentencing Judge at the same time it is likely that concurrency would have been ordered.[14]
[14] R v Beck [2005] VSCA 11, [18] (Nettle JA).
BLEBY J: This is an application for permission to appeal against sentence. The applicant was convicted by a jury of the offence of aggravated robbery.[15] The sentencing judge sentenced the applicant to eight years’ imprisonment, which he ordered to be served cumulatively on an already existing sentence of what he understood to be 12 years, seven months and nine days. He increased the non‑parole period for the total offending from seven to 12 years. The non-parole period was backdated to 21 July 2017.
[15] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The antecedent report on which the sentencing judge relied turns out to have overstated the sentence which the applicant was serving at the time, by two months. It follows that the new total imposed by the sentencing judge taking into account the present offending was similarly excessive. That error was not discovered until shortly before the hearing of the application before the Full Court. For the reasons which follow, it is not necessary to deal separately with the rectification of that error; this can be accommodated in the disposition of the application and the appeal.
Justice Stanley refused permission to appeal on 20 May 2020. On 25 May 2020, the applicant requested that the application be referred to and determined by the Full Court. On 11 August 2020, the applicant provided the Court with proposed amended grounds of appeal. These grounds do not differ markedly in effect from that which was before Stanley J. They complain that the sentence and non‑parole period were manifestly excessive and that the sentencing judge erred in expressly declining to allow for the totality principle when sentencing the applicant who was only 21 years of age at the time of the offence. The applicant is granted permission to amend the grounds of appeal as proposed.
The offending
The offence occurred on 31 October 2016, at an On The Run service station at Largs Bay. It was early evening, still daylight. It was Halloween. There were groups of people in costumes about the streets.
The applicant was wearing a Halloween costume. He was disguised as Zorro and armed with a machete. He went into the service station while his co‑accused, Georgiou, waited in a car in a side street. The applicant’s machete was not visible about his person. However, he threatened the cashier in the service station by saying the words, ‘Give me all your money or I will slit your throat’. The applicant took about $400 in cash and over $7,000 worth of cigarettes. As he was leaving the service station, he showed the machete to a customer as a threat to not block or try to prevent his escape.
The sentencing judge found that this was a well-planned and executed offence. The number plate of the car had been changed to avoid detection.
The offending has had an ongoing effect on the cashier who was the immediate victim of the offence. She has had difficulty sleeping and has not been able to work alone. She has lost hours and income. She is anxious and concerned about security and fears being attacked again.
The applicant’s personal circumstances
The applicant’s childhood was characterised by violence and substance abuse on the part of his parents. His mother left the home on account of the violence of his father. Following that, the violence against the applicant escalated. He completed year 10 at school. Prior to his arrest for another offence in 2015, he was working as a gyprocker. He has completed various short course certificates. He commenced using ice at the age of 18 and became addicted.
Immediate background of offending
This offence took place as one of a series of offences between January 2015 and January 2017. This series comprised incidents of aggravated serious criminal trespass, aggravated robbery, aggravated assault, theft, and property damage.
Prior to his sentencing in February 2020, the applicant had been sentenced most recently on 14 March 2019, by Tilmouth DCJ, for the offences of aggravated serious criminal trespass in a place of residence, aggravated causing harm with intent to cause harm, aggravated assault causing harm and aggravated robbery. Those offences had occurred on 16 January 2017. The applicant was found guilty by a jury on 30 October 2018.
In the course of sentencing the applicant for those offences, Tilmouth DCJ summarised the course of offending in which the applicant had engaged since 2015 and the sentences that had resulted:[16]
You are also before the court for breaching a bond entered into on 8 March 2016 for an aggravated serious criminal trespass. You were sentenced in March 2016 to 10 months imprisonment, suspended on entering into a bond to be of good behaviour for one year and six months. This was preceded by an offence of committing an aggravated offence of theft using force, for which you were sentenced in this court on 6 November 2015 to four years imprisonment with a non-parole period of one year and eight months, suspended on conditions to be of good behaviour for three years.
Suspension was revoked by another judge of this court on 26 April 2018 for committing a number of offences, including five assaults and two aggravated assaults. He revoked the previous suspended sentence, partly because most of the breaching offences were committed in mid 2016 only months after you were given the advantage of the second suspended sentence.
This resulted in a combined sentence of six years, two months and nine days with a non‑parole period of two years and six months to commence on 21 July 2017. This was increased to six years, five months and nine days with a non-parole period of two years and six months to commence from the same date, for driving in a reckless or dangerous manner, imposed by the Port Adelaide Magistrates Court on 6 August 2018.
As the present offences are so serious, the suspended sentence of 10 months imprisonment imposed in March 2016 is revoked and hereby carried into effect.
[16] Sentencing Remarks of Judge Tilmouth.
Judge Tilmouth determined on that occasion to impose a single penalty of seven years’ imprisonment to be served cumulatively on the six years, five months and nine days to which the applicant had already been sentenced. That resulted in a total aggregate sentence of 14 years, three months and nine days, which was then reduced by two months to account for time that the applicant had already spent in custody.
Further, however, Tilmouth DCJ then reviewed the total sentence in accordance with the principle of totality:[17]
As you are still a relatively young man and since you remained in custody following arrest on the current charges from 23 May 2017, as an act of mercy and so as to avoid a sentence that might become crushing, there will be a direction that 18 months of the sentence be served concurrently with the previous sentence, so that the combined sentence now becomes one of 12 years, seven months and nine days.
[17] Sentencing Remarks of Judge Tilmouth.
Judge Tilmouth then noted the applicant’s relative youth and his ‘distinct and persistent history of violent offences of a disturbingly similar nature’ which history spanned the period between January 2015 and November 2017. He noted that the applicant had expressed aspirations to reform, as he had before other judges of that Court, and that the reports before the Court suggested poor prospects of reform. Nevertheless, he set what he described as a relatively low non-parole period of seven years, so that the applicant would have sufficient time on parole to take advantage of careful management and considerable support.
Sentencing for the present offending
The sentencing judge in the present matter took into account expressly the facts and background that Tilmouth DCJ had previously summarised. The subject offending had occurred prior to the offending for which Tilmouth DCJ had already sentenced the applicant. The sentencing judge took the following approach:[18]
I propose that any sentence I impose will be cumulative upon your existing sentences. I will then review your non-parole period and then consider reducing either or both on account of totality. That is to reduce what would otherwise be a crushing sentence upon a person who is only 24 years of age. Having said that, my primary sentencing consideration is to protect the safety of the community.
[18] Sentencing Remarks of Judge Rice.
The sentencing judge then pointed out that while this primary consideration was relevant to both offenders, it was particularly apposite in the case of the applicant.
The sentencing judge imposed a sentence of eight years’ imprisonment, cumulative upon the applicant’s existing sentences. He reviewed the non-parole period and extended it from seven years to 12 years, commencing 21 July 2017. That had the effect of creating an additional five-year non-parole period to that which the applicant was already serving.
As to reviewing the sentence in accordance with the principle of totality, his Honour said:[19]
In my view there is no sufficient reason to reduce any part of the sentence on account of totality.
[19] Sentencing Remarks of Judge Rice.
The appeal
The complaint of manifest excess does not relate to the sentence determined for this offending standing alone, but rather to the accumulated sentences that result from the approach that the sentencing judge took. To that end, it is bound up with the complaint that the sentencing Judge erred ‘in expressly declining to allow for the totality principle’.
Section 10(1)(c) of the Sentencing Act 2017 (SA) requires the Court to apply the common law principle of totality. In R v E, AD, Doyle CJ said:[20]
In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy.
[20] (2005) 93 SASR 20 at [38].

It has been observed that ‘[w]here there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate’.[21] Such an approach does not foreclose deploying the principle of totality to the end of reducing the overall term of imprisonment to be served. Thus, in Mill v The Queen, the High Court said:[22]
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[21] Attorney-General v Tichy (1982) 30 SASR 84 at 93 (Wells J).
[22] (1988) 166 CLR 59 at 63.
In Postiglione v The Queen, McHugh J said:[23]
… in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
[23] (1997) 189 CLR 295 at 308.
This consideration may well be affected by any observation as to the accused’s rehabilitation while in prison, prior to sentencing for the subsequent offending.[24]
[24] R v Todd (1982) 2 NSWLR 517.
The applicant points to Tilmouth DCJ’s reference to the applicant’s desire to overcome his drug problem and Boylan DCJ’s reference to the applicant working in the gaol laundry, ‘a position which is apparently one involving some trust by the prison authorities’.[25]
[25] Written Submissions of the Applicant at [35].
Those observations, while encouraging, provide relatively thin pickings from which to infer established rehabilitation on the part of the applicant. However, relevantly, they at least record an aspiration to reform. I accept the applicant’s submission that, in the circumstances of this course of offending and his relative youth, it was necessary that the sentencing judge consider, as a final check, whether the overall period of imprisonment and non-parole period to which he was to become subject would be so crushing by the imposition of this latest sentence as to warrant merciful intervention.
The totality principle does not require a reduction of a long sentence. Totality is a principle of review to ensure that the aggregate sentence is not disproportionate to the seriousness of the offending conduct, taken as a whole.[26]
[26] R v E, AD (2005) 93 SASR 20.
The sentencing judge manifestly did consider the application of the totality principle. He made express reference to it in the course of announcing the approach he was to take and then concluded that there was no sufficient reason to reduce any part of the sentence on account of totality. He had previously articulated accurately the purpose of considering any such reduction on account of totality and explained that his primary sentencing consideration was to protect the safety of the community.
Remarks on penalty are not to be scrutinised as if they were reasons for judgment. In R v Reiner, Wells J said:[27]
A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not ‘Reasons for Sentence’); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing. Speaking for myself, I sometimes omit on purpose certain matters that I have taken into account, because I deem it inadvisable, in the prisoner’s interests (for example, in the interests of his ultimate rehabilitation), to mention them. I sometimes wish to stress certain matters, and accordingly mention them alone; it would be wrong to suppose that I have considered nothing more. I sometimes refer to a principle of sentencing; it would be unfortunate if the inference were to be drawn that I knew of no other.
[27] (1974) 8 SASR 102 at 114.
Similarly, in the same case, Bray CJ said:[28]
… a judge’s remarks on sentence ought not to be approached by a court of appeal in a hostile or hypercritical manner and that it is not to be assumed that he failed to take into account anything that he did not specifically mention.
[28] R v Reiner (1974) 8 SASR 102 at 106.
I reject the applicant’s submission to the effect that the sentencing judge provided no reasons for not applying the principle of totality. It is sufficiently clear that having had regard to the history and circumstances of the applicant’s offending as related by Tilmouth DCJ, the sentencing judge did not consider the total sentence to be so crushing as to warrant reduction of the sentence.
The complaint is better characterised to the effect of saying that the sentencing judge failed to apply the principle of totality correctly. The sentencing judge’s conclusion was that there was no sufficient reason to reduce any part of the sentence on account of the principle of totality. However, the approach taken earlier by Tilmouth DCJ, and the context in which his Honour took that approach, illustrates that there is reason to question that conclusion.
First, Tilmouth DCJ reduced the total sentence by 18 months as an act of mercy in the circumstances of the applicant’s age and in order to avoid the sentence from becoming crushing. In raw terms, an increase to that head sentence by a further eight years and to the non-parole period by a further five years raises the prospect, at least, that the total resulting sentence may be overwhelmingly crushing.
Secondly, this offending occurred as part of a series of like offences carried out over a two-year period. The offending the subject of the total period of imprisonment was characterised by appallingly vicious and brutal episodes, of which the present offending was one. While I do not think that any complaint could be made about the effect of the sentence standing alone, that is, an effective head sentence of eight years with a non-parole period of five years, the observation by McHugh J in Postiglione v The Queen,[29] quoted above, is apposite. A total head sentence of in excess of 20 years is onerous in the extreme for a man in his early twenties.
[29] (1997) 189 CLR 295 at 308.
I am less concerned about the non-parole period as a proportion of the head sentence; a non-parole period of 12 years constitutes less than 60 per cent of the total. As it is, the applicant would be eligible for parole in mid-2029, before reaching his 34^th birthday.
The protection of the public, as well as personal and general deterrence, called for a relatively lengthy term of imprisonment. However, the progression of the various matters contributing to the total period of imprisonment, before different judges, called for vigilance in the final check on the imposition of the last of the sentences. The applicant adopted, with some force in the present context, the rhetorical question posed by counsel in R v Beck, recorded by Nettle JA (as his Honour then was):[30]
… of whether it is reasonable to suppose that the applicant would have received a head sentence of nine and a half years with a minimum of seven years if he had been sentenced by the one judge at the one time for all of the offences. In her submission it was inconceivable.
[30] [2005] VSCA 11 at [18].
To posit a single judge sentencing for all matters at once can provide some useful basis for reflection through the prism of the principle of totality. That cannot occur absent commensurate consideration of the principle of proportionality, which is equally mandated for consideration.[31] Thus in R v E, AD, Doyle CJ observed:[32]
In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
[31] Sentencing Act 2017 (SA) s 10(1)(a).
[32] (2005) 93 SASR 20 at [38].
In R v Smoker,[33] this Court grappled with the interaction between the principle of proportionality and that of totality, both of which are required to be applied in sentencing. As Lovell and Hinton JJ observed:[34]
… the principle of proportionality operates as a limit which a sentence for an offence or single episode of offending cannot exceed and serves to guide the court in arriving at the appropriate sentence in all the circumstances. Then, in the application of the totality principle, the proportionality principle is invoked a second time, but on the second occasion it is applied in considering whether the aggregation of sentences imposed for a series of offences or episodes of offending, which in isolation cannot be considered disproportionate, are nonetheless in aggregate disproportionate to the offender’s overall criminality.[35]
(Footnote in original)
[33] (2016) 126 SASR 201.
[34] R v Smoker (2016) 126 SASR 201 at [75].
[35] Postiglione v TheQueen (1997) 189 CLR 295 at 308 (McHugh J) citing R v Holder [1983] 3 NSWLR 245 at 260 (Street CJ) with approval.
In light of that description of the operation of the principle of proportionality, their Honours then asked when a sentence could be considered crushing. They considered Western Australian authority[36] and the authority of this Court in R v Cramp.[37] These authorities are to the effect that the principle of totality reflects the need to promote rehabilitation such that where there are reasonable prospects of this, a sentence should not be imposed such as would cause the offender to despair and abandon inclination to reform. The Court in R v Smoker concluded:[38]
However, the weight to be afforded an offender’s prospects of rehabilitation where that offender is to be sentenced for a series of offences constituting distinct episodes of offending, such prospects including his or her likely response to the sentence, is a factor relevant in the application of the first aspect of the totality principle. In our view, here all that the epithet, ‘crushing’, achieves is to bring more sharply into focus the impact of the punitive experience and the importance that fostering hope may have to attaining rehabilitation. In our view, if the second aspect to the totality principle referred to by Doyle CJ in R v E, AD is to be given any operation different to the application of the proportionality principle subject of the first aspect as explained above, it lies in the extension of mercy of a type beyond leniency that a judge may be moved to grant to an offender in the ordinary course of determining the appropriate sentence overall. If this is to occur it must be upon considerations which are supported by the evidence, which permit objective judgment and which amount to more than an appeal to sympathy. For a court to permit sympathy to cause it to divert from attaching due weight to the purposes of punishment, would be for the court to fail to discharge its duty.
[36] Jarvis v The Queen (1993) 20 WAR 201 at 205 (Ipp J); 212-214 (Murray J).
[37] (2010) 106 SASR 304 at [51], [61] (Kourakis J).
[38] (2016) 126 SASR 201 at [84] (Lovell and Hinton JJ).
Approaching the question through this prism, while the episodes of offending were distinct in the ordinary sense of that word, it remains relevant that they comprised the worst elements of an addiction-fuelled two years. Viewed separately, the individual periods of imprisonment are unremarkable. Nevertheless, while the approach taken by Tilmouth DCJ could in no sense govern that taken by the sentencing judge, the accepted aspiration to reform on which Tilmouth DCJ acted gives reason to consider whether a total sentence would cause the accused to abandon any such inclination. In this regard, it seems to me pertinent that Tilmouth DCJ was sentencing in respect of later offending.
This consideration bites having particular regard to the applicant’s age. As I have noted, he was 21 years of age at the time of the offending. I also note that his prospects of rehabilitation have not been assessed optimistically. This assessment was made on account of the complexity of his psychological profile in 2017, which indicated ‘that rehabilitation is likely to take considerable resources and time’.[39] The context in which that pessimism was expressed, when considered together with the accepted aspiration to rehabilitate, requires close regard to the risk of provoking the abandonment of that aspiration.
[39] Dr Jack White, Psychological Report, 13 November 2017, p15, AB 71.
For these reasons, I consider that, in holding that there was no sufficient reason to reduce any part of the sentence on account of the principle of totality, the sentencing judge erred. In my view, the principle of totality warranted reduction of the total sentence.
I would grant an extension of time to appeal, grant permission to appeal, allow the appeal, set aside the sentence and resentence the applicant.
Resentence
I am conscious that the applicant has had the benefit of a reduction of part of what would have been the total sentence on account of the totality principle already. While that does not constrain the discretion to reduce the new total on account of the principle, governed as it is by the motivation of mercy in the face of what is likely to amount to a crushing sentence, I consider it relevant to take into account the fact of that reduction already having been given.
I would not take a different approach from that taken by the sentencing judge when determining the sentence to be imposed for this offending, that is, in imposing a head sentence of eight years’ imprisonment and a non-parole period of five years.
Taking into account the conceded error in the antecedent report, that would create, in total, a head sentence of 20 years, five months and nine days, with a non-parole period of 12 years, commencing on 21 July 2017. In application of the principle of totality as I have discussed above, I would direct that the head sentence be served partially concurrently with the previous total head sentence such that the total combined sentence to be served is 16 years, representing a reduction of four years for the sentence on the present offending. I would review the non-parole period under s 47 of the Sentencing Act and set a new, relatively low non-parole period of nine years, commencing on 21 July 2017.