Police v YARWOOD
[2017] SASC 68
•5 May 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v YARWOOD
[2017] SASC 68
Judgment of The Honourable Justice Stanley
5 May 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against sentence from a decision of a magistrate.
The appellant was convicted of one count of aggravated assault cause harm, four counts of aggravated assault, two counts of assault, one count of carry an offensive weapon, one count of offensive language, one count of hinder police, one count of breach of bail, and breach of a suspended sentence bond. The respondent pleaded guilty to all but one aggravated assault charge, for which he was convicted following trial.
After fixing notional sentences for each of the individual offences, the magistrate purported to apply the totality principle to reduce what would have been an aggregated sentence of 41 months imprisonment to two years imprisonment. The magistrate then applied a 30 per cent reduction pursuant to s 10B of the Criminal Law (Sentencing Act) 1988 to take into account pleas of guilty. This was applied to all offences and produced a sentence of one year and five months. The sentence was then further reduced by three months to reflect two weeks spent in custody and eight months spent on home detention. The magistrate imposed a head sentence of one year and two months, with a non-parole period of eight months.
Held: The magistrate erred in applying the totality principle at the wrong stage of the sentencing process. The totality principle operates at the final step in the process of fixing sentence (at [22]). Further, the magistrate erred in reducing the notional sentence of nine months imprisonment pertaining to the aggravated assault charge to which the respondent pleaded not guilty. Section 10B of the Sentencing Act was not applicable to this sentence (at [23]). The respondent is resentenced to a term of imprisonment of two years, four months and two weeks, with a non-parole period of one year and three weeks (at [65]).
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Mill v The Queen (1988) 166 CLR 59; R v Osenkowski (1982) 30 SASR 212, applied.
R v E, AD (2005) 93 SASR 20; Veen v The Queen (No 2) (1988) 164 CLR 465; AB v The Queen (1999) 198 CLR 111; Jarvis v The Queen (1993) 20 WAR 201; R v Cramp (2010) 106 SASR 304; R v Blain (1984) 115 LSJS 270; R v Copeland (No 2) (2010) 108 SASR 398; Attorney-General v Tichy (1982) 30 SASR 84; Police v Dyke (Unreported, Supreme Court of South Australia, King AJ delivered 1 August 1997, no. S6290); Police v Van Boxtel [2013] SASC 82, discussed.
POLICE v YARWOOD
[2017] SASC 68Magistrates Appeal
STANLEY J:
Introduction
This is an appeal against sentence.
On 12 January 2017, a magistrate imposed a sentence of imprisonment for one year and two months, with a non-parole period of eight months in respect of the following offences:
·one count of aggravated assault, committed on 18 January 2015;
·one count of carrying an offensive weapon, committed on 10 February 2015;
·one count of aggravated assault, committed on 10 February 2015;
·one count of assault, committed on 28 March 2015;
·one count of breach of bail, committed on 25 January 2016;
·one count of aggravated assault causing harm, committed on 26 January 2016;
·one count of hinder police, committed on 26 January 2016;
·one count of aggravated assault, committed on 26 January 2016;
·one count of offensive language, committed on 26 January 2016;
·one count of aggravated assault, committed on 23 April 2016;
·one count of assault, committed on 23 April 2016; and
·an enforcement of a breach of a suspended sentence bond entered into on 11 December 2014 in respect of the offences committed on 18 January 2015, 10 February 2015 and 28 March 2015.
The respondent pleaded guilty to all but one of these offences. The respondent pleaded not guilty to the charge of aggravated assault, committed on 18 January 2015. The appellant was tried and found guilty on this charge.
This is a Crown appeal. There are two grounds of appeal. First, that the magistrate erred in applying s 10B of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to reduce by 30 per cent the notional head sentence she had imposed for the offence of aggravated assault committed on 18 January 2015 for a plea of guilty when the respondent had, in fact, pleaded not guilty to that offence. Second, that the magistrate erred in her application of the principle of totality.
In order to understand the grounds of appeal, it is necessary to refer in some detail to the sentencing process adopted by the magistrate.
I commence by setting out in tabular form the details of the offences for which the respondent fell to be sentenced.
TABLE OF OFFENCES
No
Court ref.
Offence
Legislation
Offence / Application date
Description
Plea / proven / confirmed
Sentence
1.
AMC-15-2476
Assault (aggravated)
CLCA s 20(3)
(max 3 yrs imp)
18.1.15
Assault of Panos Carrangis (victim kicked off a chair, appellant stood on his chest, pushed and punched him in the face, neck and elsewhere),[1] neighbour at Somerton Park. Aggravated, as defendant knew victim was over the age of 60.
13.5.16
Initial sentence of 9 months[2]
2.
AMC-15-2451
Carry offensive weapon
SOA s 21C(1)
(max $2,500 fine or 6 mths imp)
10.2.15
Carry offensive weapon (large carving knife) at Somerton Park without lawful excuse.
9.2.16
Convicted without penalty + forfeiture
3.
AMC-15-2451
Assault (aggravated)
CLCA s 20(3)
(max 4 yrs imp)
10.2.15
Assault of Peter Cole (appellant made verbal threats to victim whilst present an offensive weapon, thrusting it towards the victim), a man of frail health and an amputee at Somerton Park. Aggravated, as defendant used, or threatened to use, an offensive weapon to commit, or when committing the offence.
9.2.16
Initial sentence of 12 months[3]
4.
AMC-15-10007
Assault (basic)[4]
CLCA s 20(3)
(max 2 yrs imp)
28.3.15
Assault of Richard Marks (63 yo victim who was punched several times and later to the back of the head) at Somerton Park.
8.9.16
Initial sentence of 3 months[5]
5.
AMC-16-858
Breach of bail
Bail Act s 17
(max $10,000 fine or 2 yrs imp)
25.1.16
Breach of bail at Glenelg, in that the defendant breached curfew condition.
8.9.16
Convicted, without penalty
6.
AMC-16-858
Assault cause harm (aggravated)
CLCA s 20(4)
(max 4 yrs imp)
26.1.16
Assault of Loveen Sharma (punch to the nose), taxi driver at Glenelg. Aggravated because the defendant knew the victim was in a position of particular vulnerability at the time of the offence because of the nature of his occupation or employment.
8.9.16
Initial sentence of 5 months[6]
7.
AMC-16-858
Hinder police[7]
SOA s 6(2)
(max $2,500 fine or 6 mths imp)
26.1.16
Defendant hindered police officer by attempting to slam a wooden door on police when they attended his unit at Glenelg and violently struggling in an attempt to resist police attempts to handcuff him.
8.9.16
Convicted, without penalty
8.
AMC-16-858
Assault (aggravated)
CLCA s 20(3)
(max 3 yrs imp)
26.1.16
Assault to police officer Cameron Price (defendant spat blood in the face of Price) at Glenelg. Defendant was bleeding from a cut lip and mouth. Aggravated because the defendant knew the police officer was acting in the course of his official duty.
8.9.16
Initial sentence of 6 months[8]
9.
AMC-16-858
Offensive language
SOA s 7(1)(c)
(max $1,250 fine or 3 mths imp)
26.1.16
Offensive language in a public place, namely Flinders Medical Centre. Defendant loudly stated “typical fucking coon, kicking cunts when they are down.” Defendant made these comments after being repeatedly warned by doctors, nurses and police about his language in the hospital.
8.9.16
Convicted, without penalty
10.
AMC-16-5213
Assault (aggravated)[9]
CLCA s 20(3)
(max 3 yrs imp)
23.4.16
Assault against police officer Christos Kontoleon (kicked once to the upper torso) at Bedford Park. Aggravated because the defendant knew the victim police officer was acting in the course of his official duty.
5.10.16
Initial sentence of 6 months[10]
11.
AMC-16-5213
Assault (basic)[11]
CLCA s 20(3)
(max 2 yrs imp)
23.4.16
Assault against Luke Mason (defendant yelled to victim, “you’re fucking dead when I get back boy”), neighbour at Glenelg.
5.10.16
12.
AMC-16-12975
Application to enforce breached suspended sentence bond
CLSA s 57
For offences committed on:
18.1.15 10.2.15
28.3.15Suspended Sentence Bond (6 month) entered into by defendant on 11/12/14, the conditions having been breached.
12.1.17
6 weeks (concurrent on the consolidated sentence for AMC-16-5213)
13.
AMC-16-5111
Intervention order
IOA s 18
23.4.16
Police Interim Intervention Order against protected person, Luke Mason, neighbour. Confirmed by AMC on 12.1.17.
12.1.17
N/A
[1] Judgment of Magistrate O’Connor, dated 13 May 2016, at [55].
[2] The nominal, individual sentences are set out in the Remarks on Penalty of Magistrate O’Connor, dated 12 January 2017, at [10].
[3] Remarks on Penalty of Magistrate O’Connor, at [10].
[4] This offence was originally alleged to be aggravated, as the victim was believed to be over 60 years. However, this was later amended to basic assault on 8.9.16, as it could not be proved that the defendant knew the victim was over 60 years of age at the time of the offence.
[5] Remarks on Penalty of Magistrate O’Connor, at [10].
[6] Remarks on Penalty of Magistrate O’Connor, at [10].
[7] This offence was originally laid as resist police, however this was amended on 8.9.16 to hinder police.
[8] Remarks on Penalty of Magistrate O’Connor, at [10].
[9] Count 8 on Information 16/W14596. Initially, Police alleged further offences against the defendant (carry offensive weapon (Samurai sword), aggravated assault to Ms King (defendant's mother), property damage x2 (Ms King's vehicle and sunglasses), aggravated assault of Mr Mason (neighbour), asasult of Ms Newman (neighbour)), however, these charges were withdrawn on 5.10.16.
[10] Remarks on Penalty of Magistrate O’Connor, at [10].
[11] Count 6 on Information 16/W14596.
The magistrate commenced the sentencing process by fixing notional terms of imprisonment for the aggravated assault causing harm, aggravated assault and assault offences. As can be seen from the table, they were as follows:
·aggravated assault of Mr Carrangis, nine months imprisonment;
·aggravated assault of Mr Cole, 12 months imprisonment;
·assault of Mr Marks, three months imprisonment;
·aggravated assault causing harm of Mr Sharma, five months imprisonment;
·aggravated assault of Officer Price, six months imprisonment;
·aggravated assault of Officer Kontoleon; and
·assault of Mr Mason, six months imprisonment.
At this point, the magistrate purported to apply the totality principle to reduce what would have otherwise have been an aggregated sentence of 41 months imprisonment to two years imprisonment.
Next, the magistrate reduced that period of imprisonment by 30 per cent, pursuant to s 10B of the Sentencing Act, to take into account pleas of guilty. The magistrate’s remarks indicate that this discount included a reduction for the aggravated assault of Mr Carrangis. Section 10B did not apply to this offence, as the respondent had not pleaded guilty to this offence. This produced a sentence of one year and five months imprisonment.
The magistrate further reduced the sentence by three months to reflect two weeks spent in custody and eight months spent on home detention bail.
Ultimately, this resulted in the total head sentence of one year and two months imprisonment. The magistrate fixed a non-parole period of eight months.
The magistrate found that proper reason did not exist to suspend the period of imprisonment. She also found that the sentence should not be served on home detention, pursuant to Part 3, Division 3A of the Sentencing Act.
In relation to the other offending, the magistrate convicted the respondent with no further penalty. A forfeiture order was made in relation to the offensive weapon.
The magistrate revoked a suspended sentence bond entered into in 2014 and ordered that the respondent serve the sentence of six weeks imprisonment concurrent with the term of imprisonment of one year and two months.
Principles relevant to Crown sentence appeals
Where a Crown appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991 (SA) (Magistrates Court Act) raises the prospect of a sentence of imprisonment or a longer sentence of imprisonment, that appeal is governed by the principles set out by the High Court in Everett v The Queen[12] and the Full Court in Police v Cadd.[13]
[12] (1994) 181 CLR 295.
[13] (1997) 69 SASR 150.
In Everett, the majority (Brennan, Deane, Dawson and Gaudron JJ) said that Crown appeals against sentence should be exercised only in rare and exceptional cases. A Crown appeal against sentence cuts across time-honoured concepts of criminal administration by putting in jeopardy for a second time the liberty of the subject. A Crown appeal against sentence can only be justified to establish some matter of principle and to afford an opportunity for an appeal court to perform its proper function by laying down sentencing principles for the guidance of lower courts, including avoiding the kind of manifest inadequacy in sentencing standards which constitutes an error of principle.
In Police v Cadd,[14] a majority of this Court (Doyle CJ, Duggan and Mullighan JJ) held that on a Crown appeal against sentence pursuant to s 42 of the Magistrates Court Act, the Court should only interfere on a prosecution appeal where it is necessary to avoid manifest inadequacy or inconsistency in sentencing.[15] Doyle CJ, with whom Mullighan J agreed, said a Court of Criminal Appeal of a State is not concerned only with errors of principle, but also with maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences. The interests of the administration of justice include an interest in consistency of approach, and an interest in the courts imposing adequate punishment for offences.[16] Duggan J said:[17]
In R v Osenkowski (1982) 30 SASR 212 at 213 King CJ explained that the proper role for prosecution appeals "is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience".
It is the practice of appellate courts to exercise restraint when dealing with such appeals. This restraint is appropriate by reason of the purpose of prosecution appeals and "time honoured concepts of criminal administration": per Barwick CJ in R v Peel (1971) 125 CLR 447 at 452. The main concept has been described as "double jeopardy" in the sense that the respondent's liberty, in particular, might be put in jeopardy before the sentencing court and the appellate court: R v Hayes (1987) 29 A Crim R 452 at 469. In some cases it will also be relevant to have regard to delay in bringing the appeal and the respondent's changed circumstances, if any, since the hearing of the matter at first instance: see R v Carngham (1978) 140 CLR 487. These considerations would seem to apply with equal force in the case of prosecution appeals from courts of summary jurisdiction ...
[14] (1997) 69 SASR 150.
[15] (1997) 69 SASR 150 at 159, 172 and 173-174.
[16] (1997) 69 SASR 150 at 159.
[17] (1997) 69 SASR 150 at 172.
The task of this Court is to determine whether there was error made in sentencing the respondent, error being understood in the sense explained in House v The King:[18]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[18] (1936) 55 CLR 499 at 505.
These principles apply both to Crown appeals and offenders’ appeals against sentence.[19]
[19] Dinsdale v The Queen [2000] HCA 54 at [4], (2000) 202 CLR 321 at 325.
The magistrate’s approach to the sentencing process is in error
The appellant submits that the exercise of the magistrate’s sentencing discretion miscarried in two ways.
First, the magistrate, having fixed a series of notional sentences to be imposed in respect of one count of aggravated assault cause harm, four counts of aggravated assault and two counts of basic assault, purported to apply the totality principle and reduce those sentences which aggregated 41 months imprisonment to two years imprisonment. The totality principle was explained by the High Court in Mill v The Queen,[20] as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp.56-57, as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong['] ...
[20] [1988] HCA 70, (1988) 166 CLR 59 at 62-63.
In this matter, the magistrate erred in applying the totality principle at the wrong stage of the sentencing process. The totality principle operates at the final step in the process of fixing sentence. It involves the “last look” cited in Mill v The Queen. It is not to be applied, as the magistrate did in this case, at the outset of the sentencing process after the fixing of a series of notional sentences in respect of the multiplicity of offences for which the respondent fell to be sentenced. It should have been considered after all relevant discounts had been applied.
Second, the magistrate, having fixed notional sentences for these offences, applied a 30 per cent discount in respect of each notional sentence, pursuant to s 10B of the Sentencing Act. Section 10B did not apply to the notional sentence of nine months imprisonment imposed for one count of aggravated assault against Mr Carrangis. The magistrate erred in reducing this sentence by 30 per cent.
The appellant’s submission must be accepted. The respondent did not contend to the contrary.
The result is a sentence not arrived at according to law. The appellant submits that it warrants intervention by the Court. It submits that the Court should set aside the sentence of one year and two months imprisonment and either resentence the respondent or remit the matter for resentencing before a different magistrate. On the other hand, the respondent submits that appellate intervention on a Crown appeal is not warranted in this case, notwithstanding that the sentencing process miscarried, because he submits that if the proper sentencing process had been undertaken the discrepancy between the sentence arrived at in accordance with the proper process and the original sentence imposed is not so significant as to make this one of the rare and exceptional cases warranting a Crown appeal being allowed.
What is the effect of the sentencing error?
Consideration of the respondent’s submission effectively requires this Court to undertaken the exercise of resentencing the respondent according to law in order to evaluate the respondent’s submission as to the ultimate disposition of the appeal and in order to determine whether, as a result of the magistrate imposing a sentence that was not arrived at according to law, this Court should intervene and impose a different sentence. In these circumstances, I consider that if that exercise warrants this Court to resentence the respondent, it should do so. There would be no sense in remitting the matter for resentencing to another magistrate.
The respondent submits that if the court is to resentence him, in accordance with the principle referred to in Dinsdale v The Queen,[21] it should impose a substituted sentence towards the lower end of the range of available sentences to avoid the phenomenon of appellate tinkering.
[21] Dinsdale v The Queen [2000] HCA 54 at [62], (2000) 202 CLR 321 at 341.
There is no complaint in relation to the notional sentences fixed by the magistrate. In my view there is no reason for this Court to interfere with these notional sentences. There is no justification in interfering with those notional sentences to avoid the phenomenon of tinkering. The error in this case did not arise from any manifest inadequacy in the notional sentences imposed but in the erroneous application of s 10B and the principle of totality. Nonetheless the court must bear in mind the principle in Dinsdale when considering the appropriateness of any substituted sentence at which the court arrives in resentencing.
As the errors in the sentencing process in this case included an erroneous application of the principle of totality, in resentencing the respondent it is necessary to consider that principle.
Totality principle
I have referred to the explication of the totality principle undertaken by the High Court in Mill v The Queen.[22] Mill emphasises that, in fixing sentence, a court must look at the totality of the criminal behaviour for which the sentence is to be imposed and ask itself what is the appropriate sentence for all the offences. The principle acknowledges that in sentencing for more than one offence each representing separate incursions into criminality, the aggregation of such sentences consistent with principle carries with it the risk of the imposition of an overall sentence that is disproportionate to the overall offending and the circumstances of the offender. The role of the concept of proportionality in underpinning the totality principle is explained by Doyle CJ in R v E, AD, as follows:[23]
… 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.
[22] [1988] HCA 70, (1988) 166 CLR 59 at 62-63.
[23] [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.
The task of the sentencing court is to determine the appropriate proportionate sentence.[24] In AB v The Queen,[25] Hayne J said:[26]
If an offender is sentenced for a number of offences it is necessary to examine both the particular sentences imposed for each offence and the overall effective sentence reached as a result of orders for cumulation or concurrence. It is in both the individual sentences and the overall sentence that the considerations relevant to sentencing must find their reflection.
[24] Veen v The Queen(No 2) [1988] HCA 14, (1988) 164 CLR 465 at 474.
[25] [1999] HCA 46, (1999) 198 CLR 111.
[26] [1999] HCA 46 at [121], (1999) 198 CLR 111 at 157.
The dual concept of fixing a sentence which is proportionate to the degree of criminality for which sentence is to be passed and the concept of imposing a sentence which is in the circumstances not so crushing as to call for intervention on the grounds of mercy, evidences a focus both on the offending and the offender. The concept of “crushing” was addressed in Jarvis v The Queen,[27] where Ipp J said:[28]
It has often been said that where the overall sentence for two or more crimes is “crushing”, that overall sentence should be reduced, even though each of the terms when separately viewed is within an appropriate range. When is a sentence to be regarded as “crushing” and when is “enough” to be regarded as “enough”? It is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release ...
[27] (1993) 20 WAR 201.
[28] (1993) 20 WAR 201 at 205.
Ipp J concluded that the crushing effect of the term of imprisonment is merely one of the mitigating factors to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
In R v Cramp[29] Kourakis J, as he then was, followed this approach. He said:[30]
It does not follow, therefore, that a reduction will always be necessary where cumulative sentences are imposed. In some cases the persistent offending may require greater punishment and for that reason too no downward reduction will be necessary after conducting the overall review. The application of the totality principle cannot be allowed to lead to a position where, in effect, offenders receive a “bulk discount”. All that is required is that the sentencing judge considers whether the sum of the sentences imposed is disproportionate to the criminality of the underlying offences. If the individual sentences have been framed so that the accumulation does not result in any disproportion, there need not be any reduction.
[Footnotes omitted.]
[29] [2010] SASC 51, (2010) 106 SASR 304.
[30] [2010] SASC 51 at [61], (2010) 106 SASR 304 at 321.
This analysis, emphasising that the application of the totality principle is concerned with ensuring that any sentence imposed is proportionate to the circumstances of the offending and the offender was explained in the recent judgment of the Court of Criminal Appeal in R v Smoker,[31] in the joint reasons of Lovell and Hinton JJ. Their Honours conclude that the totality principle is concerned to ensure that where an offender is sentenced for more than one offence representing separate incursions into criminal offending, the aggregation of such sentences carries with it the risk of the imposition of an overall sentence that is disproportionate to the overall offending and the circumstances of the offender. But where the sentence to be imposed for more than one incursion into criminal conduct is proportionate to the nature of the offending overall and the circumstances of the offender, there is still room for a judge to extend mercy to an offender, but this would be a rare occurrence where the overall sentence is not disproportionate in the sense identified.[32]
[31] [2016] SASCFC 114.
[32] [2016] SASCFC 114 at [84]-[85].
However, before the court comes to consider the application of the totality principle where an offender is to be sentenced for a series of offences constituting distinct episodes of offending, the court must consider whether any of those individual sentences should be served concurrently or cumulatively. That is a separate aspect of the concept of proportionality. Where an offender engages in a course of criminal conduct involving the repeated commission of multiple crimes of the same nature, the total criminality will often be assessed differently to the sum of the criminality involved in each individual crime. If separate sentences are imposed this can be achieved by ordering a measure of concurrency or by reducing the individual sentences. In R v Blain[33] King CJ said:[34]
… generally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the Information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the Information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed…
[33] (1984) 115 LSJS 270.
[34] (1984) 115 LSJS 270 at 273.
There may also be scope to fix sentences with a degree of concurrency where the offences for which the offender is to be sentenced were committed within a very short space of time as a result of which the offender had limited time and capacity to reflect on whether or not to commit the subsequent offences thereby mitigating his or her moral culpability.[35] But the commission of multiple offences does not necessarily require a degree of concurrency between sentences. Whether and to what extent this is required depends on all the circumstances. In Attorney-General (SA) v Tichy[36] Wells J said:[37]
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…
[35] R v Copeland (No. 2) [2010] SASCFC 61 at [105], (2010) 108 SASR 398 at 426.
[36] (1982) 30 SASR 84.
[37] (1982) 30 SASR 84 at 92 – 93.
Accordingly, before considering the application of the totality principle it is necessary to consider whether, in resentencing the respondent, each of the notional sentences fixed by the magistrate should be made cumulative or concurrent, and if the latter, wholly or partially.
It is apparent that the magistrate considered there should be some concurrency in relation to the offending constituted by the aggravated assault of Officer Kontoleon and the assault of Mr Mason. In respect of each of these offences she imposed a single term of imprisonment of six months. In my view, there should also be a degree of concurrency in relation to the offending constituting the aggravated assault causing harm of Mr Sharma and the aggravated assault of Officer Price. These offences were committed on the same day. While they constitute separate incursions into criminal conduct, they were committed within a very short space of time providing the respondent with limited time and capacity to reflect on whether or not to commit the subsequent offence which to some extent mitigates his moral culpability. In my view it would be appropriate that two months of each of the sentences imposed should be served concurrently. Partial concurrency only is warranted given that there is nothing about the two offences that would constitute them being characterised as a single course of criminal conduct. They involve different victims, separate crimes and were committed on discretely different occasions. The only justification for partial concurrency is that they were committed within a very short space of time. In the circumstances, I consider the sentence of six months for aggravated assault should commence after the respondent has served three months of the sentence of five months imprisonment for the offence of aggravated assault cause harm.
Other considerations in resentencing relevant to the totality principle
It is necessary to address two matters in relation to the application of the totality principle. First, whether in resentencing the court should interfere with the approach taken by the magistrate that the sentence of six weeks imprisonment suspended on entry of the bond, once revoked for breach, should be served concurrently with the principal sentence of imprisonment imposed. I do not consider there are any proper grounds to excuse the breach. They are the offences committed during the term of the bond, namely, an array of assaults and a carry offensive weapon conviction. They are not trivial matters. The appellant submits that this term of six weeks should be served cumulatively upon any other sentence of imprisonment ordered as it represents entirely separate offending distinct from the breaching offences. It submits the failure to order that the suspended term of six weeks should be served cumulatively would make a mockery of the suspended sentence which would simply be absorbed into the sentence for the subsequent offending.
Ordinarily a sentence imposed for a breaching offence should be made cumulative upon the earlier suspended sentence. In Police v Dyke[38] King AJ said:
As a general principle, sentence for subsequent offences which give rise to the activation of an earlier suspended sentence should be made cumulative upon the activated sentence.
It makes a mockery of a suspended sentence if it is simply absorbed into the sentence for the subsequent offending.
[38] Unreported, Supreme Court of South Australia, King AJ delivered 1 August 1997, Judgment No. S6290.
Accordingly, it is usually appropriate for the sentence for a breaching offence to be made cumulative upon the previous sentence, however, there can be exceptions.[39]
[39] Police v Van Boxtel [2013] SASC 82 at [41].
In this case, apart from the fact it is a Crown appeal, there is nothing unusual which would suggest a departure from the principle. The fact of this being a Crown appeal, however, does not suggest to me that a departure from the established principle is warranted once resentencing occurs. Accordingly, I consider the six weeks suspended sentence which was revoked by reason of breach, should be added to the overall sentence which falls for consideration in accordance with the application of the totality principle.
Second, the parties are divided as to whether the totality principle should be applied before or after a deduction is made for time previously served. The appellant contends that it should; the respondent contends to the contrary. I consider the respondent’s contention should be accepted. The magistrate reduced the sentence she otherwise intended to impose by three months to account for two weeks spent in custody and eight months spent on home detention bail. There is no criticism of the period of reduction. I consider it appropriate. However, it is a reduction which should occur once the final sentence has been determined. It is not a “discount” as such. Rather, it is a recognition that a period of the sentence to be imposed has already been served. It is an adjustment that will frequently be achieved by backdating the sentence to reflect time served. In this case, however, that is not practical as the adjustment represents a period fixed to reflect both time spent in custody and time spent on home detention bail. It is appropriate that this adjustment occurs after the term of imprisonment has finally been fixed. The adjustment should be made both to the head sentence and the non-parole period.
Resentencing
It is within that context of legal principle that the court must undertake the process of resentencing. Resentencing requires consideration of the circumstances of the offending and the offender.
Circumstances of the offending
The subject offending spanned a period of approximately 15 months, during which the respondent committed offences against his victims including two people over the age of 60, one an amputee, one a taxi driver, police officers, and his mother and neighbour. The offending took place at unit housing in Somerton Park, and at Glenelg. At the time, the respondent resided at the Somerton Park units.
During the first incident of 18 January 2015, the respondent was sharing food and wine with another tenant, a retired teacher. The respondent requested multiple times that the victim drive him elsewhere. The victim was not ready to do so. The respondent pulled the victim’s chair from beneath him, causing him to fall backwards onto the ground. The respondent stood with his left foot pressed on the victim’s chest for one to two minutes, then pushed and punched him in the face, neck and elsewhere before being restrained by others. The victim suffered bruises to his upper mid-back, extensive bruising around the eyes and to his neck and chest. Later that evening, the respondent slashed the victim’s flyscreens and curtains. He was convicted of aggravated assault in relation to this conduct.
The respondent pleaded guilty to the other charges, the circumstances of which are as follows:
·On 10 February 2015, the respondent requested assistance from the victim, an amputee. Twice the victim said he was unable to assist. The respondent made verbal threats to the victim, and came to the victim’s gate armed with a large carving knife. He lunged at the victim with the knife, without inflicting injury. The accused stated to police that he had ceased taking relevant medication at the time, which influenced his conduct. He was charged with carrying an offensive weapon and aggravated assault in relation to this incident.
·On 25 January 2016, police attended a Glenelg address for the purpose of a bail curfew check. There was no response at the door and no signs that the respondent was at the address. He was charged with breach of bail.
·On 26 January 2016, the respondent punched a taxi driver in the nose. Shortly thereafter, he violently resisted police attempts to arrest him. He spat blood in the face of a police officer. He was taken to hospital, where he shouted profanities despite repeated warnings from hospital staff to mind his language. This course of conduct resulted in charges of aggravated assault causing harm, hinder police, aggravated assault and offensive language.
·On 28 March 2015, the respondent, the victim (over 60 years old at the time) and a female were at the respondent’s unit. The respondent began arguing with the female, and the victim attempted to intervene. The respondent elbowed the victim in the face, and punched him multiple times. The respondent was charged with assault for this incident.
·On 23 April 2016, following an altercation for which the respondent was arrested by police, he issued verbal threats to the attending officers. He was escorted to hospital, where he kicked one of the officers on the upper torso. He was charged with assault and aggravated assault.
Respondent’s personal circumstances
The respondent is 35 years old and has one child to a former partner. The child is 12 years old and is under the care of his mother. The respondent has unsuccessfully sought contact with his son via Family Court proceedings. The respondent claims to have had a troubled childhood himself as a result of family violence, having witnessed his mother and father’s regular and violent conflicts. He left home as an adolescent to live with friends.
The respondent left school after year 10. He has occupied various roles in the construction and transport industry since undertaking a diesel mechanic apprenticeship. He currently receives the Disability Support Pension.
The respondent has been diagnosed as suffering mental health problems, including bipolar disorder, depression and anxiety. He has suffered from mental health issues since he was an adolescent. He takes medication to manage these conditions.
He also has ongoing substance abuse problems (primarily with alcohol but also methamphetamine and marijuana), which originated in his adolescent years. He has undergone rehabilitation for his substance abuse problems in 2004 and 2005, but has since relapsed.
He has an extensive criminal record which includes offences for drink driving, driving whilst disqualified, aggravated theft, breach of bond, disorderly behaviour, damage to property, resisting police and assault. Much of his offending is associated with his abuse of drugs and alcohol.
Consideration
In my view, this violent offending warrants a substantial term of imprisonment. While the respondent’s mental health issues are a mitigating factor, the courts have extended considerable leniency to him in the past, without any sign of him refraining from violent, thuggish behaviour. A sentence of imprisonment is warranted for the purposes of specific and general deterrence. As I indicated earlier I would fix notional sentences consistent with the approach that was taken by the magistrate. That is to say:
·for the aggravated assault of Mr Carrangis, nine months imprisonment;
·for the aggravated assault of Mr Cole, 12 months imprisonment;
·for the assault of Mr Marks, three months imprisonment;
·for the aggravated assault causing harm of Mr Sharma, five months imprisonment;
·for the aggravated assault of Officer Price, six months imprisonment; and
·for the aggravated assault of Officer Kontoleon and assault of Mr Mason, six months imprisonment.
Those sentences when aggregated total 41 months. However, as there is a degree of partial concurrency in respect of two of those sentences, the actual period is 39 months.
Putting to one side the sentence of nine months imprisonment in respect of the aggravated assault of Mr Carrangis for which the respondent was found guilty after a trial, to which s 10B did not apply, the respondent was entitled to a 30 per cent discount of the balance of the notional terms of imprisonment imposed. That results in an aggregated sentence of 21 months imprisonment. To that term must be added the term of imprisonment of nine months in respect of the aggravated assault of Mr Carrangis and the further period of six weeks imprisonment as a result of the revocation of the suspended sentence for breach of bond. That results in an aggregated term of imprisonment of 31 months and two weeks.
It is at this point that the court must consider whether any reduction is required by reason of the application of the totality principle.
In my view, no such reduction is required. A term of imprisonment of 31 months and two weeks is not disproportionate to the seriousness of the offending conduct taken as a whole, such that the sentence could be considered so crushing as to call for intervention on the grounds of mercy. This was a series of repeated violent crimes committed over a period of 15 months involving seven different victims. In most cases they involved clear and separate incursions into criminal conduct with the exception of the aggravated assault causing harm committed against Mr Sharma and the aggravated assault of Officer Price on 26 January 2016 and the aggravated assault of Officer Kontoleon and the basic assault of Mr Mason on 23 April 2016. Many of the victims were frail, elderly and vulnerable. The respondent was a mature man of 35 years. While the offending was associated with an excessive consumption of alcohol, that does not mitigate the seriousness of the criminal conduct, particularly having regard to the number of occasions on which the respondent had previously come before the courts for offending associated with his abuse of alcohol.
As Doyle CJ said in R v E, AD:[40]
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.
[40] [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.
As I observed earlier in these reasons, the head sentence of 31 months and two weeks must be reduced by three months to reflect time served in custody and on home detention bail. This results in a term of imprisonment of 28 months and two weeks.
Outcome of the appeal
The process of resentencing results in a sentence of 28 months and two weeks imprisonment. This is to be contrasted with the sentence imposed by the magistrate of 14 months imprisonment. In my view, that discrepancy is so great that this Court is justified in intervening on appeal to maintain adequate standards of punishment and to correct the erroneous views of a magistrate as to sentencing for particular crimes.[41] This is one of those rare and exceptional cases where it is appropriate to allow a Crown appeal to correct a sentence which is wholly disproportionate to the seriousness of the offending for which the respondent fell to be sentenced. Accordingly I would allow the appeal, set aside the sentence imposed by the magistrate and substitute a sentence of imprisonment of two years, four months and two weeks. I consider that sentence to be at the lower end of the range of available sentences for this offending.
[41] R v Osenkowski (1982) 30 SASR 212 at 213.
Non-parole period
I would fix a non-parole period of 50 per cent of the head sentence. That is a period of one year, three months and three weeks. This represents a lower proportion of the head sentence than the non-parole period fixed by the magistrate. Of course, it is a longer non-parole period than that fixed by the magistrate because the head sentence is longer. I have fixed the non-parole period at 50 per cent of the head sentence for two reasons. First, to reflect the principle in Dinsdale referred to above. Second, in recognition of the fact that this is the first sentence of imprisonment that the respondent has actually served. I trust it will promote his rehabilitation.
That non-parole period must also be reduced by three months to reflect time spent in custody and on home detention bail. That results in a non-parole period of one year and three weeks.
Good reason to suspend?
I agree with the magistrate that no good reason exists to suspend the period of imprisonment given his prior record and the nature of this offending.
On appeal no submission was made that it would be appropriate on resentencing to order that any sentence of imprisonment should be served on home detention. It is sufficient to observe that, like the magistrate, I do not consider that it would be appropriate to make such an order in this case.
Conclusion
I would allow the appeal. I would set aside the sentence imposed. I would impose a sentence of imprisonment of two years, four months and two weeks. I would fix a non-parole period of one year and three weeks. I would backdate the sentence and the non-parole period to 12 January 2017. I would confirm the interim intervention order. I also would confirm the forfeiture order made by the magistrate in relation to the offensive weapon and the orders for payment of the Victims of Crime levies and the prosecution costs.
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