R v ANDERSON - [2008] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ANDERSON
[2008] SASC 106
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
23 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appellant appealed against sentences imposed on him in the District Court after pleas of guilty to various dishonesty offences - sentences made cumulative - total head sentence of imprisonment for nine years and six months with a non-parole period of imprisonment for five years - sentencing judge stated that he had considered the principle of totality and taken it into account - whether total head sentence and non-parole period manifestly excessive - whether the judge failed to take into account each of the pleas of guilty - whether sufficient effect given to the principle of totality.
Held: The sentencing judge's comments suggest that allowance was made for the pleas - when considered individually, none of the sentences were manifestly excessive - the circumstances justify the application of the totality principle - doubt whether all considerations relevant to the totality principle were taken into account - appeal allowed - substituted total head sentence of imprisonment for seven years and non-parole period of imprisonment for four years.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Place (2002) 81 SASR 395; R v Rossi (1988) 142 LSJS 451; Herbert v The Queen (2003) 27 WAR 330; R v Bennett [2005] SASC 55, discussed.

R v ANDERSON
[2008] SASC 106
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: I would allow the appeal. I agree with the orders proposed by Duggan J. I agree with his reasons. There is nothing that I wish to add.
DUGGAN J. The appellant has appealed against sentences imposed on him in the District Court.
The District Court information alleged that the appellant and an accomplice committed the offences of serious criminal trespass in a non-residential building, attempted theft and theft. The theft took place on 14 September 2006 when the appellant and his accomplice stole a utility. Then, on 3 November 2006, the appellant and his accomplice used the vehicle in an attempt to steal an automatic teller machine which contained approximately $35,000. The vehicle was reversed through the doors of the restaurant and gaming room of the St Francis Winery at Old Reynella. A chain fixed to the utility was attached to the teller machine in an attempt to dislodge it. The attempt was unsuccessful and it was abandoned. The appellant pleaded guilty to these offences.
When the appellant was dealt with in relation to the above offences, he requested that various matters pending in the Magistrates Court be brought up to the District Court so that he could be sentenced on them. He pleaded guilty to these charges, which consisted of a number of receiving offences and offences of possessing modified firearms and ammunition committed in early April 2003; three assaults and an offence of trespassing which took place on 21 June 2003; two offences of unlawful possession and possession of a prescription drug committed on 1 February 2004; a number of breaches of bail committed in 2005; and a serious criminal trespass and possessing implements of breaking and entering committed on 25 July 2005.
The appellant was sentenced to imprisonment for three years for the theft of the utility and the offences committed at the premises of the St Francis Winery. A sentence of two years was imposed for the receiving offences and the possession of the modified firearms and ammunition, the sentence to be served cumulatively on the sentence of three years. A cumulative sentence of imprisonment for two years was imposed for the trespass and the assaults and a further cumulative sentence of imprisonment for six months was imposed for the offences of unlawful possession and possession of a prescription drug. A further cumulative sentence of imprisonment for six months was imposed for the breach of bail offences. Finally, the appellant was sentenced to imprisonment for 18 months for the serious criminal trespass and possessing implements of breaking and entering. Again, this sentence was made cumulative on the other sentences.
The total head sentence was imprisonment for nine years and six months. The sentencing judge imposed a non-parole period of imprisonment for five years.
Counsel for the appellant submitted that the total head sentence and the non-parole period were manifestly excessive. It was argued that the learned sentencing judge failed to allow a discount for the pleas of guilty to the offences brought up from the Magistrates Court and that insufficient regard was had to the age of the appellant, his remorse and his prospects of rehabilitation. According to the argument, the sentencing judge gave insufficient effect to the principle of totality.
The appellant was 18 years of age at the time of the offending in 2003. I have pointed out that some of the offences were committed in 2004 and 2005. He was 22 years of age at the time he was sentenced. He has an extensive history of offending, although he had not served a term of imprisonment prior to the present sentence.
Psychological reports dated 29 January 2003 and 24 September 2007 prepared by Dr J White were tendered at the sentencing hearing. Dr White said that the appellant’s parents separated when he was five years old. The appellant told Dr White that he had experienced an unstable childhood. As a child he lived alternately with his mother and father. Dr White was of the view that the appellant was a person of average intelligence. He concluded the appellant was likely to satisfy the diagnostic criteria for alcohol abuse and antisocial personality disorder.
In my view it cannot be said that any of the individual sentences imposed were manifestly excessive.
The theft of the utility and the offences committed at the winery justified the penalty of imprisonment for three years. The property the subject of the receiving offences had been taken from a number of different premises. There were seven counts of receiving and they merited the sentence of two years imprisonment.
The assault and trespass charges of 2003 arose from an incident that occurred after a car in which the appellant had been travelling as a passenger crashed into the front yard of a house. The appellant went inside the house with the other two occupants of the vehicle to intimidate those inside in order to prevent them from calling the police. One of the victims who was assaulted was an elderly man who required hospital treatment. The sentence of imprisonment for two years for these offences was well within the appropriate sentencing range.
The sentences of imprisonment for six months for the offences of unlawful possession and possession of a prescription drug and 18 months imprisonment for the offences of serious criminal trespass and possession of implements of breaking and entering, were also appropriate. The series of offences of failing to comply with the conditions of a bail agreement were appropriately dealt with by a sentence of six months.
Finally, no criticism could be made of the directions that the sentences for the groups of offending should be served cumulatively.
I have referred to the appellant’s contention that the sentencing judge made no reduction, when fixing penalty, by reason of the pleas of guilty to the matters brought up from the Magistrates Court.
The appellant and his accomplice were sentenced together. In the course of his sentencing remarks the sentencing judge said:
Each of you has pleaded guilty to these offences.
This was in reference to the three offences charged on the information.
Later in his remarks the judge addressed the accomplice as follows:
You pleaded guilty before the matter was set for trial and it is appropriate to discount your sentence by about 20 per cent to reflect the pleas and genuine remorse.
When his Honour sentenced the appellant for the theft of the utility and the offences at the winery he said:
I note you both pleaded guilty at the same time.
However, his Honour did not say that he made a reduction for the appellant’s pleas of guilty to these offences or to the offences which resulted in the charges laid in the Magistrates Court.
I think it is likely that the sentencing judge reduced the appellant’s sentences on all of the offences by reason of his pleas of guilty. In my view, the judge’s comments about pleas of guilty and the sentences actually passed, support the conclusion that allowance was made for the pleas. I do not think it would have been appropriate to reduce the individual sentences below the levels fixed by the judge. However as I have commented, the judge did not say that he took into account the pleas of guilty, nor did he refer to the extent of any reduction on this account.
In sentencing it is important to record the fact that allowance is made for a plea of guilty and to identify the specific reduction.[1] It is desirable that offenders be made aware of the discount and its extent and that the information is available to appellate courts. However, as I have said, I do not think these sentences could have been reduced below the level fixed by the judge.
[1] R v Place (2002) 81 SASR 395 at [42].
The next issue for consideration is whether the circumstances called for the application of the principle of totality and, if so, whether sufficient effect was given to it.
The nature and purpose of the totality principle has been explained in a number of cases and only a brief summary is necessary for present purposes.
In R v Rossi[2] King CJ said:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
[2] (1988) 142 LSJS 451 at 453.
The following passage in DA Thomas, Principles of Sentencing[3] is frequently quoted to explain the principle:
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 sentence is “just and appropriate”.
[3] (2^nd ed, (1979) at 56).
The principle of totality can operate despite the fact that, as in the present case, the individual sentences and the direction that they be served cumulatively are appropriate. This is because the combined effect of the individual sentences can, in the circumstances of the particular case, amount to a crushing sentence. The severity of the sentence increases exponentially as the accumulation occurs so that, at the end of the process, the overall period can become excessive.[4]
[4] Herbert v The Queen (2003) 27 WAR 330 at [45].
The principle is not to be considered as a routine step for consideration in every case.[5] However, it is my view that in the circumstances of the present case, it was appropriate to stand back “at the end of the day” and consider the overall effect of the sentence. This exercise is not to be carried out in a vacuum. The assessment takes into account matters such as the youth of the offender and the prospects of rehabilitation.
[5] R v Bennett [2005] SASC 55 at [15].
The sentencing judge did consider the application of the principle to the present case. Towards the end of his sentencing remarks he said:
I also indicate that, in determining these sentences, I have already taken into account, and factored into my consideration, the principle of totality.
It appears from these remarks that his Honour considered the principle of totality in relation to the individual series of offences. While the procedure which he adopted is not altogether clear, his Honour may have totalled up the individual sentences he considered appropriate, considered the principle of totality in relation to the total, and then revisited the individual sentences so as to make some adjustment by way of application of the principle.
However, the remarks on sentencing are inadequate in this respect and it cannot be said with confidence that all considerations relevant to the totality principle were taken into account. After considering the circumstances, I am satisfied that a reduction in the total of the individual sentences is required.
The offending was extensive and it had some serious features. However, the appellant’s age at the time of the offences is a matter of considerable importance in this assessment. The appellant had only just turned 18 at the time of the earliest offending and the subsequent offending took place up until he was 21. The appellant’s youth must be considered in conjunction with his prospects of rehabilitation. His previous convictions do not invite optimism in this respect, but there are some favourable signs in his pursuit of further education at Year 11 level.
I am of the view that the circumstances justify the application of the totality principle so as to reduce the total head sentence to imprisonment for seven years. I would substitute a non-parole period of four years. The most appropriate way to achieve this reduction is to impose one sentence for all offences punishable by imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. In respect of the offences which are not punishable by imprisonment, convictions without penalty can be recorded.
I would allow the appeal against sentence, set aside the sentences imposed by the sentencing judge and, in lieu thereof, sentence the appellant pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 to imprisonment for seven years for all offences punishable by imprisonment, the sentence to commence on 3 November 2006. I would fix the non-parole period at four years. I would record convictions without penalty for the offences against the Firearms Regulations 1993. I would confirm the other orders made by the sentencing judge.
VANSTONE J: I agree with the orders proposed by Duggan J and with the substance of the reasons he has given.