R v BACHRA - [2012] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BACHRA
[2012] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice White)
4 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
The appellant was sentenced for 20 offences, including offences of violence, theft and blackmail committed over a six week period and involving six victims - the Judge imposed a single sentence of imprisonment for 15 years and seven months and fixed a non-parole period of eight years.
Appeal against sentence - whether sentence is manifestly excessive - whether the sentence is crushing and should have been reduced in accordance with the totality principle.
Held (dismissing the appeal): the appellant's offending warranted a severe sentence - the Judge did not overlook the possible application of the principle of totality - the sentence is not so severe as to have a crushing effect on the appellant - the principle of totality did not require a reduction of the sentence.
R v Rossi (1988) 142 LSJS 451, applied.
Postiglione v The Queen (1997) 189 CLR 295; R v B, RWK (2005) 91 SASR 200; R v E, AD (2005) 93 SASR 20, discussed.

R v BACHRA
[2012] SASCFC 31
R v BACHRA
Court of Criminal Appeal: Vanstone, Anderson and White JJ

VANSTONE J: I have had the advantage of reading the draft reasons of White J.
I agree that the appeal should be dismissed. The sentence imposed was a long one, but that was dictated by the number and seriousness of the offences committed by the appellant. I would not describe the sentence as severe. I would say only that it was within the range of sentences available to the judge and did not call for a reduction by reference to the totality principle.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by White J.
WHITE J. The appellant was sentenced in the District Court for 20 offences, including offences of violence, theft and blackmail. The Judge imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) of imprisonment for 15 years and seven months and fixed a non‑parole period of eight years.
The appellant appeals against that sentence, contending that it is manifestly excessive. His complaint is that the sentence is crushing, and should have been reduced in accordance with the totality principle.
The offences were committed over a six week period in September and October 2006. They comprised three groups of offences and involved six victims.
At the time, the appellant was 25 years old. His parents had emigrated to Australia from India but the appellant himself was born and educated in the Riverland. His employment before committing the offences had generally been of an unskilled and semi‑skilled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BACHRA

Details

AGLC: R v Bachra [2012] SASCFC 31
Case: [2012] SASCFC 31
Decision Date: 4 April 2012

CaseChat Overview and Summary

The appeal in *R v Bachra* concerned a sentence imposed on the appellant for 20 offences, including violence, theft, and blackmail, committed over a six-week period and involving six victims. The sentencing judge imposed a single sentence of 15 years and seven months imprisonment, with a non-parole period of eight years. The appellant sought to appeal this sentence, arguing it was manifestly excessive and that the totality principle should have led to a reduction.

The central legal issues before the appellate court were whether the imposed sentence was manifestly excessive and whether the sentencing judge had erred in failing to apply the totality principle to reduce the sentence, which the appellant argued had a "crushing" effect. The appellant's counsel accepted that the notional sentences for each group of offences were appropriate and that the judge was correct to treat the distinct groups of offending as cumulative. However, the argument focused on the cumulative effect of the notional sentences before any reduction for time served.

The court dismissed the appeal, finding that the appellant's offending warranted a severe sentence. The judges reasoned that the sentencing judge had properly considered the totality principle and had not overlooked its potential application. They concluded that the sentence, while severe, was not so crushing as to necessitate a reduction under the totality principle. The court affirmed that the principle of totality is applied in confined circumstances and does not require a reduction of an otherwise just sentence simply because it may be crushing to the offender. The court found that the sentence imposed was not so severe as to have a crushing effect or be manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J WHITE J

As I have indicated, I consider that the sentence in this case is severe. However, I do not consider that the sentence should be regarded as so severe as to have a crushing effect on the appellant or as being manifestly excessive. I do not consider that the principle of totality requires a reduction in the sentence fixed by the Judge.Conclusion For the reasons given above, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, WHITE J

The Judge considered that each of the three groups of offences involved distinct and separate acts of offending and therefore considered it appropriate that the notional sentences should be made cumulative. By this means the Judge reached a sentence of imprisonment for 17 years. The Judge reduced that period by 17 months on account of the time which the appellant had spent in custody and on home detention bail. This led to the imposition of a single sentence under s 18A of 15 years and seven months. The Judge considered that the appellant did have good prospects of rehabilitation and so fixed “a relatively low” non‑parole period of eight years imprisonment. Both the head sentence and the non‑parole period commenced on 19 April 2010, when the appellant’s bail had been revoked following his convictions on the third group of offences.Consideration Counsel for the appellant accepted that the notional sentences fixed by the Judge for each group of offences were within an appropriate range for those offences. Counsel also accepted that it was appropriate for the Judge to have regarded each group of offences as a separate incursion into criminal conduct so as to warrant the accumulation of the notional sentences. Counsel submitted, however, that the Judge had erred in failing to regard a starting point of imprisonment for 17 years before reduction for time served as so crushing so as to warrant reduction under the principle of totality. Counsel emphasised the aspects of the appellant’s personal circumstances to which I referred earlier. These included the appellant’s expression of remorse and contrition, the fact that he had come from a good and stable family, that he had demonstrated the ability to engage in hard work, that he was a responsible and dutiful son, that he was of considerable assistance to his disabled parents, that he was generally well regarded in his community, and that since going into custody he has made considerable attempts to improve himself and to assist in the education of other prisoners. The principle of totality is well established. King CJ in R v Rossi[12] 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 become so crushing as to call for the merciful intervention by the court by way of reducing the total effect …[13]In Postiglione v The Queen[14] Kirby J indicated that a sentence may be regarded as crushing if it “would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”.[15][12] (1988) 142 LSJS 451.[13] Ibid at 453.[14] (1997) 189 CLR 295.[15] Ibid at 341. The circumstances in which it will be appropriate for a court to apply the totality principle are confined. Doyle CJ made this point in R v B, RWK[16] when he said:The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.[17]Further, the totality principle does not always require a sentence which is otherwise just to be reduced on the ground that it may be crushing to the offender involved. Doyle CJ made this point in R v E, AD[18] when he said: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.[19][16] [2005] SASC 84; (2005) 91 SASR 200.[17] Ibid at [16]; 203.[18] [2005] SASC 332; (2005) 93 SASR 20.[19] Ibid at [38]; 30.