R, JM v Police - [2012] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
R, JM v POLICE
[2012] SASCFC 58
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Blue)
29 May 2012
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OTHER PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Appeals against three sentences imposed by the Youth Court – the first appeal was against a sentence imposed in August 2010 by a Magistrate of the Youth Court who sentenced the appellant to detention (suspended) for a period of 10 months for some 38 offences – the Magistrate arrived at the sentence by accumulating a number of notional sentences but imposed a single sentence of imprisonment using the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) – the second and third appeals related to the sentence by a Judge of the Youth Court when sentencing the appellant for offences committed in December 2010.
The issues on appeal were: (1) whether the Youth Court can impose a single sentence of detention, exercising the power conferred by s 18A of the Sentencing Act, which sentence is arrived at by, in effect, accumulating sentences notionally attributable to the separate offences in respect of which the single sentence is imposed, whether s 31(4) of the Sentencing Act prohibits the accumulation of sentences when sentencing youths; (2) whether the Judge of the Youth Court should have reduced the term of detention, when the Judge revoked the suspension of the sentence in the course of sentencing the appellant in respect of the further offences; and (3) whether the Judge’s reasons were inadequate in considering whether the sentence, suspension of which had been revoked, should have been reduced.
Held: (1) Doyle CJ with David J concurring: the Magistrate had power to use s 18A as he did – s 18A and s 31(2) are procedural in nature, providing the court with the machinery to structure a sentence in a specified manner – neither provision is dependent upon the other – the exercise of each power is grounded in s 10 of the Sentencing Act and common law – the substantive principles relating to the imposition of concurrent and cumulative sentences are found in the common law – the limits imposed by s 23 of the Young Offenders Act 1993 (SA) on a court sentencing a youth as a youth, and the policy set out in s 3, make the process of accumulation of sentences under s 31 of the Sentencing Act inappropriate in most cases, when a court sentences a youth as a youth.
Blue J: the Youth Court has the power, quite independently of s 31 of the Sentencing Act, to impose cumulative sentences – subject to this, concurrence with Doyle CJ.
(2) Doyle CJ with David and Blue JJ concurring: the judge did not err in not reducing the term of imprisonment when the suspension of that sentence was revoked during the sentencing of subsequent offending;
(3) Doyle CJ with David and Blue JJ concurring: as a matter of sound practice, the Judge should have dealt in his reasons with the main submission advanced to him – however, this argument had no reasonable prospect of success.
Appeals dismissed.
Children's Protection and Young Offenders Act 1979 (SA) s 46, s 47, s 51; Criminal Law Act 1827 (UK) s 4, s 7, s 10; Criminal Law Consolidation Act 1935 (SA) s 5D, s 310; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 3A, s 3A(1), s 3A(2), s 10, s 10(1)(o), s 18A, s 30, s 31, s 31(1), s 31(4), s 31A, s 32, s 32A, s 47, s 58(4)(a), s 61; Juvenile Courts Act 1971 (SA) s 42, s 43; Maintenance Act 1926 (SA) s 113; The State Children Act 1895 (SA) s 36; Young Offenders Act 1993 (SA) s 3, s 3(1), s 3(2), s 3(2a), s 16, s 17, s 22, s 23, s 23(2), s 23(3), s 29, s 39A, s 41, s 42, s 61AA, referred to.
R v Buckman (1998) 47 SASR 303, discussed.
Gregory v The Queen (1850) 15 QB 974; Hayes v The Queen (1967) 116 CLR 459; Hemming v The King (1912) 7 Cr App R 236; Reynolds v Stacy (1957) 96 CLR 454; R v Betteridge [1965] SASR 76; R v Blake [1962] 2 QB 377; R v Byron (1992) 59 SASR 132; R v Castro (1880) 5 QB 490; R v Cutbush (1867) 2 LRQB 379; R v Greenberg [1943] 1 KB 381; R v Major (1998) 70 SASR 488; (1998) 100 A Crim R 66; R v Martin [1911] 2 KB 450; R v Rhenwick Williams (1790) 1 Leach 529; R v Rowland [1971] SASR 392; R v Waugh [2005] SASC 470; (2005) 93 SASR 274; R v Wilkes (1769) 19 St Tr 1075, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"cumulative sentences"

R, JM v POLICE
[2012] SASCFC 58
Full Court: Doyle CJ, David and Blue JJ

DOYLE CJ: The Court has before it three appeals by Mr R against sentences imposed on him by the Youth Court. Mr R is a youth for the purposes of the Young Offenders Act 1993 (SA) (the YOA).
The appeals raise two issues. First, whether the Youth Court can impose a single sentence of detention, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act), which sentence is arrived at by, in effect, accumulating sentences notionally attributable to the separate offences in respect of which the sentence is imposed, resulting in the imposition of a single sentence greater than the sentence that could have been imposed for any one of the offences. This is an issue of statutory interpretation, involving the interaction between the Sentencing Act and the YOA. The second issue is whether a Judge of the Youth Court should have reduced the term of a sentence of detention, when the Judge revoked the suspension of the sentence in the course of sentencing Mr R in respect of further offences, these further offences giving rise to the breach of an obligation imposed on Mr R and resulting in the Judge revoking the suspension of the sentence. This is, in substance, the only issue raised by the second and third appeals, and gives rise to a routine question of sentencing practice.
The first appeal, as I will call it, is against a sentence imposed by a Magistrate of the Youth Court in August 2010. The Magistrate sentenced Mr R to detention for a period of ten months. The Magistrate was sentencing Mr R for no less than 38 offences. The Magistrate imposed a single sentence of detention, exercising powers conferred by s 18A of the Sentencing Act. The Magistrate’s reasons make it clear that the Magistrate accumulated a number of notional sentences that he attributed to particular offences, to arrive at the single sentence that he ultimately imposed. The single sentence was for a period greater than the sentence that could properly have been imposed in respect of any one of the offences. When acting as he did, the Magistrate engaged in a routine application of s 18A of the Sentencing Act, subject of course to the impact of the provisions of the YOA on that process. It is not necessary for the purposes of this appeal to go into the details of the manner in which s 18A is exercised. I refer to the decisions in R v Major (1998) 70 SASR 488; (1998) 100 A Crim R 66, and R v Waugh [2005] SASC 470; (2005) 93 SASR 274 at [42].
The issue was whether the Magistrate had power to sentence Mr R in this manner.
There is one point that should be mentioned at the outset. The Magistrate said that he “attached” the sentence of detention to a particular charge that he identified. In relation to the other charges the Magistrate ordered that Mr R be convicted without penalty. That order was erroneous. If s 18A is used, it results in one sentence for all of the relevant offences. The sentence “attaches” to, or is in respect of, each of the relevant offences. It is not permissible to make an order in respect of those offences that there be a conviction without penalty. The reason is that the single sentence imposed is the sentence imposed in respect of each of the relevant offences. There is no scope for a further order. This is an error that can be corrected by the Youth Court using the power conferred on it by s 9A of the Sentencing Act.
Mr Muscat SC, counsel for Mr R on appeal, submits as follows.
The Sentencing Act was amended in 1996 to provide that it applied to the sentencing of youths, subject to specific provision to the contrary. Section 3A(1) of the Sentencing Act provides:
3A—Application of Act to youths
(1) Subject to any provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
However, s 3A(2) further provides:
…
(2) However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.
The approach to the sentencing of youths under the YOA differs in substantial respect from the approach to the sentencing of adults. It is not necessary for the purpose of this appeal to explore those differences. It suffices to refer to s 3 of the YOA, which relevantly provides:
3—Objects and statutory policies
(1)     The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2)     The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a)a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(c)the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a)   In imposing sanctions on a youth for illegal conduct—
(a)regard should be had to the deterrent effect any proposed sanction may have on the youth; and
(b)if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern o f repeated illegal conduct or for some other reason), regard should be had to—
(i)the deterrent effect any proposed sanction may have on other youths; and
(ii)the balance to be achieved between—
(A)     the protection of the community; and
(B)     the need to rehabilitate the youth.
These provisions have been treated as fundamental to the sentencing of youths, notwithstanding the general application of the Sentencing Act to the sentencing of youths. Also relevant in this context are provisions of s 23 of the YOA, which relevantly provides:
23—Limitation on power to impose custodial sentence
…
(2)     If an offence of which a youth is convicted, or found guilty, is punishable by imprisonment where committed by an adult, the Court may sentence the youth to—
(a)detention in a training centre for a period not exceeding three years; or
(b)home detention for a period not exceeding six months, or for periods not exceeding 6 months in aggregate over one year or less; or
(c)detention in a training centre for a period not exceeding two years to be followed by home detention for a period not exceeding six months or for periods not exceeding 6 months in aggregate over one year or less.
(3)     If, however, the maximum term of imprisonment prescribed for the offence is less than three years, the period of detention to which the youth is sentenced cannot exceed that maximum.
Once again, it is unnecessary to go into the details of these provisions. It suffices to say that they also reflect the difference in approach to the sentencing of a youth and the sentencing of an adult.
The power of courts to impose cumulative sentences of imprisonment, as distinct from concurrent sentences, has a lengthy history. In his written submissions Mr Muscat helpfully outlined that history. Today the power to impose cumulative sentences of imprisonment is found in s 31(1) of the Sentencing Act which provides:
31—Cumulative sentences
(1) Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
But this power is not available when a court is sentencing a youth, as a youth, to detention. Section 31(4) provides:
…
(4) This section does not apply in relation to a youth unless the youth is sentenced as an adult.
Mr Muscat argues that when a court sentences a youth as a youth, exercising the power conferred by s 18A, the court cannot impose a single sentence that, in substance, reflects the accumulation of two or more notional sentences attributable to some or all of the “number of offences” for which the court is imposing sentence. The court cannot impose a single sentence greater than the sentence that could be imposed for any one of the offences in respect of which the court is imposing sentence. This is the case because s 31(4) of the Sentencing Act does not permit the accumulation of sentences when a youth is sentenced as a youth.
Mr Muscat further submits that as a matter of sentencing practice and principle, it is inconsistent to say that s 31(4) of the Sentencing Act does not permit the imposition of cumulative sentences on a youth, when sentenced as a youth, but that the same result in substance can be reached using s 18A of the Sentencing Act. It could not be open to the sentencing court, Mr Muscat submits, to make a substantial change to the sentencing regime merely by choosing to use s 18A of the Sentencing Act, to avoid the limit imposed by s 31(4) of the Sentencing Act.
I do not accept this submission.
Each of s 18A and s 31(1) of the Sentencing Act is a machinery or procedural provision. Each enables a sentencing court to impose a certain kind of sentence. The former provision empowers a sentencing court to impose a single sentence in respect of each of two or more offences in respect of which the court is imposing sentence. As a matter of substance, if that is the right expression, that single sentence might involve concurrent notional sentences, cumulative notional sentences, or a mix of concurrent and cumulative notional sentences. But the point is that s 18A enables a court to identify a single sentence as the sentence imposed in respect of a number of offences. This is a procedural or machinery power that the court did not previously have. The latter provision empowers a court to impose a number of separate and cumulative sentences, when sentencing an offender in respect of more than one offence. Evidently it was thought there was no need to refer to a power to impose concurrent sentences. Mr Muscat’s submission, in my opinion, overlooks the fact that the exercise of each power is grounded on substantive principles of sentencing, principles not found in s 18A or s 31(1). These principles are found in particular in s 10 of the Sentencing Act, and in common law principles that continue to apply to the sentencing of offenders. In particular, the principles relating to the imposition of concurrent and cumulative sentences are found in the common law. They are not found in s 10 of the Sentencing Act (which sets out most of the relevant sentencing principles). If necessary, their application is warranted by s 10(1)(o), which provides that the court can have regard to:
…
(o) any other relevant matter.
Neither s 18A nor s 31(1) affects or supports the other. In particular, contrary to the submission by Mr Muscat, a court that sentences an adult offender to a single sentence of imprisonment under s 18A does not draw on the power conferred by s 31(1), if the court imposes a sentence that reflects a notional accumulation of sentences in respect of each of the offences being dealt with. To the contrary, in that situation s 18A provides an alternative process or method to that provided by s 31(1). The exercise of the power conferred by s 18A is governed by the sentencing principles to which I have just referred.
Accordingly, the circumstance that a court sentencing a youth as a youth cannot impose cumulative sentences, having regard to the provisions of s 31(4) of the Sentencing Act, does not mean that when the court draws upon the power conferred by s 18A of the Sentencing Act, it lacks the power to impose a sentence which is, in substance, equivalent to a cumulative sentence in respect of some or all of the offences with which the court is dealing. I emphasise that the sentence imposed in exercise of the power conferred by s 18A is not a cumulative sentence. It is a single sentence. Relevant sentencing principles guide the court in determining the amount of the punishment to be imposed under s 18A. The court does not in any way draw on the power conferred by s 31(1), or run counter to the provision made by s 31(4), in sentencing in the manner indicated.
In short, s 18A and s 31(1) of the Sentencing Act amount to machinery or procedural provisions enabling the court to structure the sentence in a specified manner. Neither provision is dependent on the other. Neither is subordinate to the other. In principle, the circumstance that one such power is available to a sentencing court dealing with a youth, but the other is not, is neither here nor there.
Mr Muscat challenges this latter point in particular. He submits that Parliament has deprived a court sentencing a youth as a youth of the power to impose cumulative sentences. But, on my approach, Parliament has allowed the court to do in substance the same thing by exercising the power conferred by s 18A of the Sentencing Act. He submits that the absence of any good explanation for this outcome points to a conclusion that s 18A should not be interpreted as allowing, when a court sentences a youth as a youth, the imposition of a sentence that is in substance the reflection of the process of accumulation, or, to be a little more precise, the imposition of a sentence that is greater than a sentence that could properly have been imposed in respect of any one of the offences with which the court is dealing.
The likely explanation for the difference lies in the provisions of s 3 and s 23 of the YOA, that I have set out above. The limits imposed by s 23 on a court sentencing a youth as a youth, and the policy set out in s 3, make the process of accumulation of sentences under s 31 of the Sentencing Act inappropriate in most cases, when a court sentences a youth as a youth. Those limits and policies call for a more flexible approach to the sentencing of youths than the approach taken to the sentencing of adults.
But even if that explanation is rejected, it remains the case that s 18A operates independently of, and draws nothing from, s 31(1). The circumstance that s 31(1) is not applicable to the sentencing of a youth as a youth, is no reason to treat s 18A as not permitting the imposition of a sentence on a youth that is greater or more severe than any one sentence that could have been imposed on the relevant youth. Mr Muscat’s submission on this point overlooks the independent operation of each of the two provisions. The circumstance that a court sentencing an adult can resort to a s 18A or to s 31(1) (or indeed to a combination of those provisions), gives rise to no inference that a court sentencing a youth as a youth should not be able to resort to one only of those provisions, namely, s 18A of the Sentencing Act.

Accordingly, subject to the error earlier identified, the Magistrate had power to make use of s 18A in the manner in which he did. The appeal against the sentence imposed by the Magistrate should be dismissed.
The second and third appeals turn on the one point. The Magistrate sentenced Mr R in August 2010. In December 2011 a Judge of the Youth Court sentenced Mr R for offences committed in December 2010. These further offences breached a condition of the obligation on the basis of which the Magistrate had suspended a sentence of ten months’ detention. Before the Judge, counsel for Mr R accepted that revocation of the suspended sentence was appropriate, indeed inevitable. But counsel pointed to s 58(4)(a) of the Sentencing Act, which provides:
58—Orders that court may make on breach of bond
…
(4) Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
…
By operation of s 3A of the Sentencing Act, the reference to imprisonment is to be read as a reference to detention. Counsel submitted to the Judge that after being sentenced by the Magistrate, Mr R had obtained stable accommodation, and that this had led to a change of attitude on his part. Mr R had performed voluntary work, and had shown himself to be reliable. He was responding to programs aimed at reducing the risk of reoffending. Counsel submitted that these changes in circumstances justified a reduction in the term of the suspended sentence. The application of s 58(4)(a) was summarised by King CJ in R v Buckman (1988) 47 SASR 303 at 304 where he said:
It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper.
The first comment that can be made on this submission is that the commission of the further offences undermines the submission, although it has to be acknowledged that the further offences were committed at the end of December 2010, relatively early in the period that had elapsed between the sentencing by the Magistrate and the sentencing by the Judge. A further difficulty is found in the reports available to the Judge. One of the report writers stated:
It is the writer’s assessment that the factors influencing [Mr R’s] offending behaviour have not changed from previous identified factors and reflect a seeming inability to develop new skills and learn from mistakes.
That report was written in August 2011. Another report, written in September 2011, stated:
Interestingly, despite the many positive comments and his strong participation in many activities (including employment), nothing has lasted for one reason or another. He could be categorised as a butterfly moving from flower to flower.
These reports are not at all encouraging. I cannot agree that in these circumstances it was encumbent on the Judge to reduce the length of the sentence that he brought into effect. I am not persuaded that the Judge of the Youth Court erred.
There is a further complaint that the Judge’s reasons are inadequate. They do not deal with this particular submission. The reasons are brief, and to the point. However, I agree that as a matter of sound sentencing practice the Judge should have dealt with what was the main submission advanced to him. However, as the argument that the Judge erred has no reasonable prospect of success, it is not appropriate to set aside the sentence imposed, with a view to resentencing.
Accordingly, the second and third appeals should be dismissed. One of those appeals is the appeal against the decision by the Judge not to exercise the power conferred by s 58(4)(a). The other appeal is consequential upon that, because it relates to the sentence of the Judge imposed for the offences before him, but the only complaint that is made is that the failure to reduce the length of the suspended sentence has resulted in a sentence that is, overall, manifestly excessive.
Conclusion
For those reasons all three appeals should be dismissed.
It is appropriate that I acknowledge the assistance that I have derived from the Outlines provided to the Court. They reflect very detailed research on the background to the state of the relevant legislation, and on the issues which the Court has had to consider.
DAVID J: I would dismiss all three appeals. I agree with the reasons of the Chief Justice.
BLUE J: The facts and issues in these appeals are set out in the judgment of Doyle CJ.
First appeal
The contention of the appellant and defendant relies upon three propositions:
1.subsection 31(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) manifests a clear legislative intention that sentences of imprisonment imposed on a youth by the Youth Court must not be cumulative or reflect a cumulative approach;
2.the sole source of power to impose a cumulative sentence is section 31 of the Sentencing Act; and
3.section 18A of the Sentencing Act cannot be used to achieve by the “back door” what subsection 31(4) prohibits by the “front door”.
A consideration of the history of and policy behind the common law and relevant legislative provisions shows that the first two propositions cannot be sustained.
Cumulative sentences
At common law, all offences were classified as either misdemeanours or felonies.[1] Misdemeanours were punishable by imprisonment (without limit) and/or fine (without limit).[2] A court sentencing an offender for a misdemeanour had power to direct that a sentence of imprisonment commence upon the expiration of another sentence of imprisonment being served or imposed at the same time for another misdemeanour and multiple cumulative sentences were permissible.[3]
[1]    Reynolds v Stacy [1957] HCA 9; (1957) 96 CLR 454 at 459-460 per Dixon CJ and McTiernan J (Fullaghar, Kitto & Taylor JJ agreeing). Treason was sometimes regarded as separate to, and higher than, felony, but treason can be disregarded for present purposes.
[2]    Although a sentence could not be inordinate in all of the circumstances: R v Castro (1880) 5 QB 490 at 509 per Bramwell LJ.
[3]    R v Wilkes (1769) 19 St Tr 1075 at 1133-1135; R v Rhenwick Williams (1790) 1 Leach 529; 168 ER 366; Gregory v The Queen (1850) 15 QB 974; 117 ER 726; R v Rowland [1971] SASR 392 at 394 per Bray CJ, Hogarth J and Sangster AJ.
There were obvious policy reasons for this approach. In R v Wilkes,[4] Wilkes had been sentenced to ten months imprisonment for a treasonable libel and twelve months imprisonment for a separate blasphemous libel. It was ordered that the term of imprisonment for the blasphemous libel commence upon the expiration of the term of imprisonment for the treasonable libel. The House of Lords upheld the sentences. Sir John Wilmott CJ (delivering the opinion on behalf of the House of Lords) said:[5]
We are of opinion that the defendant being convicted of two offences, it was necessary that two judgments should be pronounced, one upon each information …
We cannot explore any mode of sentencing a man to imprisonment, who is imprisoned already, but by tacking one imprisonment to the other, as is done in the present case.
It is not letting the judgment for the first offence vary the punishment, or influence the quantum of it in the other; but only providing, from the situation of the delinquent, to effectuate the punishment the Court thought his crime deserved. It is shaping the judgment to the peculiar circumstances of the case; and the necessity of postponing the commencement of the imprisonment, under the second judgment, arises from the party’s own guilt, which had subjected him to a present imprisonment; and therefore the question really is, Whether a man under a sentence of imprisonment for one offence, can be sentenced to be imprisoned again for another offence? If he can, this is the only form by which it can be done consistent with justice. If it cannot be done, then in all offences which are punishable only by fine and imprisonment, if a man has committed twenty, and has been sentenced to imprisonment for one of them, he must be fined for all the rest … or an imprisonment must be directed for every offence after the first, inadequate and disproportionate to it.
[4] R v Wilkes (1769) 19 St Tr 1075.
[5] R v Wilkes (1769) 19 St Tr 1075 at 1132-1134.
In R v Cutbush,[6] Cockburn CJ said:
… right and justice require, when a man has been guilty of separate offences, for each of which a separate term of imprisonment is a proper form of punishment, that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence, and as it would be contrary to public policy and expediency that he should so escape with but one punishment.
[6] (1867) 2 LRQB 379 at 382 per Cockburn CJ, Blackburn and Lush JJ.
In the case of felonies, because the punishment was death, a convicted felon could plead autrefois attaint to a charge for a different felony. A convicted felon could not be convicted, let alone sentenced, for a different felony. It followed that the imposition of a cumulative sentence was inapplicable in the case of a felony.[7] The position is analogous to a person already sentenced to imprisonment for life on whom an additional sentence of imprisonment cannot be imposed: the latter sentence is simply meaningless.[8]
[7] Chitty, J, A practical treatise on the criminal law (1816) vol I, 464; R v Greenberg [1943] 1 KB 381 at 384 per Viscount Caldecote CJ, Lewis & Croom-Johnson JJ; R v Rowland [1971] SASR 392 at 394 per Bray CJ, Hogarth J, & Sangster AJ.
[8] R v Byron (1992) 59 SASR 132 at 133 per King CJ (Cox & Matheson JJ agreeing).
In 1827, the Criminal Law Act 1827 (UK)[9] reformed the law for the punishment of felonies. Section 7 provided that no person convicted of a felony should suffer death, unless the statute expressly provided for punishment with death. Section 4 abolished pleas of autrefois attaint.[10] The enactment of sections 4 and 7 alone destroyed the rationale for the common law principle that cumulative sentences for felonies were inapplicable. If the Act had stopped there, the common law would probably have applied to felonies the principles which applied to misdemeanours in relation to cumulative sentences.[11]
[9] 7 & 8 Geo IV c 28.
[10] Preserving the plea (ie autrefois convict or autrefois acquit) in respect only of the same offence.
[11] See argument of FW Sherwood for the Crown in Hemming v The King (1912) 7 Cr. App. R. 236 at 237 referred to in R v Greenberg [1943] 1 KB 381 at 384 by Viscount Caldecote CJ, Lewis & Croom‑Johnson JJ.
The 1827 Act went on to provide by section 10:
That wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the Court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced.
In the nineteenth century, the view was taken that the 1827 Act put felonies on the same footing as misdemeanours for the purpose of cumulative sentences.[12] The 1827 Act was construed from the outset as permitting the imposition at the same time of two cumulative sentences for felony.[13]
[12] See R v Cutbush (1867) 2 LRQB 379 at 381 per Blackburn J; R v Castro (1880) 5 QB 490 at 516 per Brett LJ.
[13] Ie the defendant did not need to be already serving a first sentence: R v Cutbush (1867) 2 LRQB 379 at 381 per Blackburn J; R v Martin [1911] 2 KB 450 at 457 per Pickford J; R v Blake [1962] 2 QB 377 at 380 per Hilbury, Ashworth and Paull JJ; R v Betteridge [1965] SASR 76 at 77-79 per Napier CJ, Mayo and Chamberlain JJ.
The 1827 Act became part of the law of South Australia upon the State’s inception in 1836. Section 10 of the 1827 Act was re-enacted by section 388 of the Criminal Law Consolidation Act 1876 (SA) and in turn by section 310 of the Criminal Law Consolidation Act 1935 (SA) (“the Consolidation Act”). In Hayes v The Queen,[14] it was held by the High Court in relation to identical Northern Territory legislation that the section permits two cumulative sentences but not more.[15] This judicial limitation was removed by Parliament in 1980 by the enactment of a new section 310 expressly providing for multiple cumulative sentences.
[14] [1967] HCA 29; (1967) 116 CLR 459 at 461-462 per Barwick CJ, Taylor and Owen JJ.
[15] Followed in South Australia in R v Rowland [1971] SASR 392.
In 1988, section 310 of the Consolidation Act was re-enacted as section 31 of the Sentencing Act.
In 1994, the classification of offences as misdemeanours and felonies was abolished.[16] This destroyed any remaining vestige of the common law rationale precluding cumulative sentences for felonies. Since the abolition, there has been no reason at common law why cumulative sentences cannot be imposed for all offences. Since 1994, the reason for the enactment of section 10 of the 1827 Act, which in turn became section 310 of the Consolidation Act and section 31 of the Sentencing Act, has ceased to exist.
[16] Criminal Law Consolidation (Felonies & Misdemeanours) Amendment Act 1994 (SA) introducing a new section 5D into the Criminal Law Consolidation Act 1935 (SA).
Sentencing of children
Prior to 1895, there was no distinction between the sentencing of adults and children. Children were therefore liable to the imposition of cumulative sentences.
The State Children Act 1895 (SA) enacted a new and separate regime for sentencing children. Children found guilty of an offence punishable by imprisonment were to be sentenced to detention at a reformatory school until 18 years of age (if they were to be detained at all).[17] This regime was maintained until 1971.[18] Under this regime, cumulative sentences were inapplicable.
[17] The State Children Act 1895 (SA) section 36(a).
[18] Maintenance Act 1926 (later renamed Social Welfare Act 1926 (SA)) section 113. See also the Juvenile Courts Act 1965-1966 (SA) sections 35-36.
The Juvenile Courts Act 1971 (SA) took a different approach. The Juvenile Court was to determine whether a child who had committed an offence or offences was in need of care and control. The Court generally was empowered to place the child under the care and control of the Minister for not less than one year and not more than until the child attained 18 years of age.[19] There was nothing in those provisions which precluded the Court from taking into account two or more offences in determining the period of care and control.
[19] Or not more than two years if the child had already attained the age of 16 years: Juvenile Courts Act 1971 (SA) sections 42-43. Homicide was an exception which is not presently relevant.
The Children’s Protection and Young Offenders Act 1979 (SA) took a different approach again. It provided that, in certain circumstances,[20] a child might be tried and sentenced in the District Court or Supreme Court,[21] in which event the child was to be sentenced as if an adult and hence was potentially subject to cumulative sentences. Otherwise, a child was to be tried and sentenced by the new Children’s Court. The Children’s Court was given power to sentence a child to detention. Subsection 51(1)(a) provided:
Subject to this Act, where the Children’s Court finds a charge … proved against a child, the Court may, by order –
(a)upon convicting the child, sentence him to a period of detention of not less than two months nor more than two years in a training centre…
[20] Either upon application by the Attorney-General or at the election of the child.
[21] Children’s Protection & Young Offenders Act 1979 (SA) sections 46-47.
There was nothing in these provisions which precluded the Children’s Court from taking into account two or more offences in determining the period of detention or from directing that a period of detention commence upon the expiration of an earlier period. In particular, subsection 31(4) of the Sentencing Act did not then exist to manifest a contrary intention. If the Children’s Court had power to impose cumulative sentences between 1979 and 1993, it is unlikely that Parliament intended to take away that power in 1993.
The Young Offenders Act 1993 (SA) (“the Young Offenders Act”) enacted a similar regime to the 1979 Act. It provided that, in certain circumstances, a youth might be tried and sentenced in the District Court or Supreme Court,[22] in which event the Court could either sentence the youth as an adult or as if it were the Youth Court.[23] Otherwise, a youth was to be tried and sentenced by the new Youth Court. The Youth Court was given power to sentence a youth to detention. The relevant provisions were and are as follows:
22(1)Subject to this Division, the Court has the same powers to sentence a youth for an offence –
(a)     if the offence is a summary offence – as the Magistrates Court; or
(b)     if the offence is an indictable offence – as the District Court.
23(1)Subject to subsection (6), the Court cannot sentence a youth to imprisonment.
(2)If an offence of which a youth is convicted, or found guilty, is punishable by imprisonment where committed by an adult, the Court may sentence the youth to –
(a)     detention in a training centre for a period not exceeding three years …
(3)If, however, the maximum term of imprisonment prescribed for the offence is less than three years, the period of detention to which the youth is sentenced cannot exceed that maximum.
[22] Young Offenders Act 1993 (SA) sections 16-17.
[23] Young Offenders Act 1993 (SA) section 29.
There is nothing in these provisions which precludes the Youth Court from taking into account two or more offences in determining the period of detention or ordering that a period of detention commence upon the expiration of an earlier period of detention. In particular, subsection 31(4) of the Sentencing Act did not then exist to manifest a contrary intention. Indeed, subsection 22(1) gives to the Youth Court the same sentencing powers as the Magistrate’s Court or District Court (as the case may be), and those Courts possess the power to sentence on those bases. If the Youth Court had power to impose cumulative sentences between 1993 and 1996, it is unlikely that Parliament intended to take away that power in 1996.
The Sentencing Act
In 1988, when the Sentencing Act was enacted, its provisions were expressed to apply to a “court”. By subsection 3(1), a “court” was defined to mean:
any court of criminal jurisdiction (other than the Children’s Court).
The Act therefore had no application to the Children’s Court constituted under the Children’s Protection and Young Offenders Act 1979.
Section 30 of the Act provided that a court is to specify the date on which a sentence of imprisonment is to commence or is to be taken to have commenced.
Section 31 re-enacted section 310 of the Consolidation Act.[24]
[24] By the Statutes Amendment & Repeal (Sentencing) Act 1988 (SA) section 35, section 310 of the Criminal Law Consolidation Act 1935 was repealed.
In 1992, section 18A was inserted into the Sentencing Act. The section provided that, if a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences.

In 1993, coinciding with the enactment of the Young Offenders Act, the Sentencing Act was amended by deleting from the definition of “court” the words “other than the Children’s Court”.[25] The new Youth Court was not excepted from the definition of “court” and hence the Sentencing Act became applicable generally to the Youth Court. However, provisions referring to “imprisonment” were not applicable on their own terms because the Youth Court imposed detention instead. For example, Part III (including sections 30 and 31) applied to a “sentence of imprisonment” and accordingly was inapplicable to sentences of detention imposed by the Youth Court.
[25] Statutes Repeal & Amendment (Children’s Protection and Young Offenders Act) 1993 (SA) section 7(c).
In 1996, the Young Offenders Act and the Sentencing Act were both amended by the Statutes Amendment (Sentencing of Young Offenders) Act 1996 (SA). A new section 3A of the Sentencing Act now provided that a reference in the Act to “imprisonment” was to be read as a reference to “detention” (and confirmed that the Act applied to the sentencing of a youth as a youth). There were four specific exceptions to provisions of the Act applying to the sentencing of a youth as a youth. One of these was effected by subsection 31(4). I address this and the other three exceptions later.
Legislative intention to preclude accumulation?
The defendant’s first contention is that subsection 31(4) of the Sentencing Act manifests a clear legislative intention that sentences of imprisonment imposed by the Youth Court are not to be cumulative.
Section 31 of the Sentencing Act provides as follows:
(1)Subject to subsection (2), the Court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
(2)Where a sentence of imprisonment is imposed for an offence committed by the defendant –
(a) during a period of release on parole or conditional release; or
(b) while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,
the sentence will (except where one of the sentences to which the defendant is subject is life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.
(3)A direction may be given under subsection (1) irrespective of the number of cumulative sentences that the defendant is already serving or will, in consequence of the direction, be liable to serve.
(4)This section does not apply in relation to a youth unless the youth is sentenced as an adult.
As observed above, subsection 31(4) was inserted into the Sentencing Act in 1996 and was one of four provisions which expressly excepted the application of a provision of the Act to a youth when sentenced as a youth. It is significant that, in the case of each of the other three provisions, there were provisions in the Young Offenders Act (or in one case the Sentencing Act) which covered the same subject matter as the provision in the Sentencing Act which was excluded.
The other three provisions were as follows:
(1)sections 31A-32A which provide for the fixing of non-parole periods (covered by a specific regime under the Young Offenders Act in sections 41‑42);
(2)section 47 which provides for community service (covered by a specific regime under the Young Offenders Act in section 39A); and
(3)section 61 which provides for imprisonment in default of payment of a fine (covered by a specific regime under the Sentencing Act in section 61AA).
This gives rise to the possibility that Parliament excluded the application of section 31 to youths sentenced as youths likewise because it was considered that cumulative sentences were covered by the regime under the Young Offenders Act in sections 22‑23.
On the hearing of the appeal, both parties referred to the second reading explanation of the Bill which became the Statutes Amendments (Sentencing of Young Offenders) Act 1996 (SA). It was expressly stated in the second reading explanation that “the amendments to the [Sentencing Act] do not change policy”. There was no suggestion in the second reading explanation that a policy had been, or was being, adopted that cumulative sentences should be available to courts sentencing adults or youths as adults but should not be available to courts sentencing youths as youths. If such an unlikely policy were being adopted, it might have been expected that it would have been identified in explicit terms.
The second reading explanation lists the four provisions of the Sentencing Act which were to be excluded by the Act from applying to sentencing youths as youths. In the case of the provisions relating to community service and imprisonment in default of payment of a fine, it was identified in the second reading explanation that special provisions applying to youths covering those subject matters were contained in the Young Offenders Act and the Sentencing Act respectively. It might be implied that similar reasons applied also in respect of non-parole periods and cumulative sentences. There is no suggestion in the second reading explanation that there was any reason for any of the four exclusions other than that the matter was covered by specific provisions applying to youths.
It is also noteworthy that the 1996 amendments did not exclude section 30 of the Sentencing Act from applying to youths. That section recognises the general power of courts to antedate or postdate the commencement of a sentence. If Parliament had been adopting a policy that cumulative sentences must not be imposed on youths sentenced as youths, it might have been expected to exclude, or at least limit, section 30 as well as section 31. It might also have been expected to exclude or limit section 18A.
There is no basis to discern any legislative intention that by inserting subsection 31(4) Parliament intended to deprive the Youth Court of the power to impose cumulative sentences.
It is appropriate to construe section 31 by reference to the legislative policy which has been adopted generally in relation to cumulative sentences. Ever since 1836, the common law principle that a court has power to impose cumulative sentences in respect of misdemeanours has remained undisturbed by Parliament and legislation has existed which ensures that a court has power to impose cumulative sentences in respect of felonies as well (to the extent that the common law might otherwise have been regarded as precluding that). Before and after the abolition of the classification of offences into misdemeanours and felonies in 1994, Parliament has manifested a clear intention that courts should be able to impose cumulative sentences in appropriate circumstances.
The reason for the adoption of this legislative policy is clear. If courts had no power to impose cumulative sentences, there would be very little discouragement to a person who has committed an offence likely to result in imprisonment committing a second lesser offence, on the basis that the sentence for the subsequent offence could not be made cumulative upon the sentence for the first.
Since 1979, Parliament has provided for youths to be sentenced, in certain circumstances, by the District Court or Supreme Court. In those cases, it is clear that the Court has power to impose cumulative sentences. It is unlikely that Parliament intended to differentiate such that the District and Supreme Courts may impose cumulative sentences upon youths but the Youth Court may not.
I conclude that subsection 31(4) does not manifest any legislative intention that cumulative sentences of detention must not be imposed by the Youth Court.
Is section 31 the sole source of power?
The defendant’s second proposition is that section 31 is the sole source of the power of courts to impose a cumulative sentence.
It is significant that section 31 of the Sentencing Act had its origin in section 310 of the Consolidation Act (and its predecessors going back to section 10 of the 1827 Act), which left the common law power of courts to impose cumulative sentences in respect of misdemeanours undisturbed and ensured that courts had similar powers in sentencing for felonies. In those circumstances, section 31 should be construed as being supplementary to the powers of courts under the common law or other statutes to impose cumulative sentences.
Section 22 of the Young Offenders Act explicitly gives to the Youth Court the same sentencing powers as are possessed by the District Court and Magistrates Court (as the case may be). Those powers include the power to impose cumulative sentences in appropriate circumstances.
There is nothing in subsection 23(2) which limits, or evinces any intention to limit, the power of the Youth Court to impose cumulative sentences of detention or to impose a single sentence of detention in respect of two or more offences.
I conclude that the Youth Court has power, quite independently of section 31 of the Sentencing Act, to impose cumulative sentences or a single sentence in respect of multiple offences.
Section 18A of the Sentencing Act
It follows that there was no impediment to the utilisation by the Magistrate of section 18A of the Sentencing Act to impose a single sentence in respect of multiple offences.
Subject to the above, I agree with Doyle CJ in relation to the first appeal.
Second and third appeals
In relation to these appeals, I agree with Doyle CJ.
Conclusion
I would dismiss each of the appeals.