R v Bagnato - [2011] SASCFC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAGNATO
[2011] SASCFC 161
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
21 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appellant pleaded guilty to the offences of aggravated causing serious harm by dangerous driving, assault causing harm, aggravated assault and two further counts of assault – appellant sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) to one term of imprisonment for all offending of 10 years with a non-parole period of eight years – sentencing Judge disqualified the appellant from holding or obtaining a driver’s licence for ten years – whether the sentencing Judge erred by applying notional sentences to each of the offences but not giving consideration to the question of the concurrency in whole or in part of the notional sentences – whether the principle of totality required a lesser sentence – whether the sentence was manifestly excessive.
Whether the failure of the sentencing Judge to address the question of partial concurrency for sentences for successive assaults on a number of persons over a short period of time raises the need for re-sentencing. Whether, and to what extent, such sentences should be notionally formulated and partial concurrency be ordered.
Held: (Gray and Sulan JJ): Appeal dismissed - the fact that the Judge chose to impose individual notional sentences in respect of each offence provided a degree of transparency but the sentence must be looked at as an overall sentence – whether notional sentences imposed should have been concurrent rather than cumulative is not a question for the Court as the question to be asked is whether the overall sentence is manifestly excessive – sentencing Judge gave express consideration to the principle of totality and was correct in finding that the sentence for the offending was not crushing - sentence imposed by the Judge was well within his sentencing discretion.
Held: (Peek J, in dissent): The appeal should be allowed - the sentencing Judge had erred in failing to consider partial concurrency for the assault sentences - separate notional sentences for the assaults should be partially concurrent as between themselves but cumulative upon the sentence for the driving offence.
Section 18A Criminal Law (Sentencing) Act 1988 (SA) does not replace the previously existing law and practice relating to sentencing for multiple offences - the role of concurrency and partial concurrency of sentence considered - the doctrine of totality considered - desirability of transparency in sentencing.
Upon re-sentencing: appropriate notional sentences for each of the assaults quantified and then reduced by way of partial concurrency as between themselves to a notional sentence of four years for all the assault charges - the appropriate notional sentence for the driving offence is five years and six months - total notional sentence of nine years and six months - reduced to eight years for guilty pleas - no further deduction for totality - non-parole period of six years and four months fixed - both periods backdated to original sentence date.
Criminal Law (Sentencing) Act 1988 (SA) s 9(1), s 10(1)(b), s 10(1)(c), s 10(1)(k), s 18A, s 31; Crimes Act 1900 (NSW) s 33, s 110; Fisheries Act 1982 (SA); Road Traffic Act 1961 (SA) s 45A, referred to.
R v Copeland (No 2) (2010) 108 SASR 398; R v Ravet [2011] SASCFC 67; R v Place (2002) 81 SASR 395; Attorney-General v Tichy (1982) 30 SASR 84; R v Major (1998) 70 SASR 488; R v Nylander (2003) 228 LSJS 24; Veen v The Queen [No 2] (1988) 164 CLR 465; AB v The Queen (1999) 198 CLR 111; Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 85 ALJR 1154; R v Melville (1956) 73 WN (NSW) 579; Dicker v Ashton (1974) 65 LSJS 150; R v Dorning (1981) 27 SASR 481; R v Brown (1982) 5 A Crim R 404; R v Capalbo [2005] SASC 47; Mill v The Queen (1988) 166 CLR 59; Johnson v The Queen (2004) 205 ALR 346; R v Gale (1999) 74 SASR 235; R v Waugh (2005) 93 SASR 274; Bendikov & Hoklas v Parkes [2008] SASC 248; R v Caplikas [2002] SASC 258; Hayes v The Queen (1967) 116 CLR 459; R v Singh [2011] SASCFC 128, discussed.
House v The King (1936) 55 CLR 499; Wong v The Queen (2001) 207 CLR 584; Cameron v The Queen (2002) 209 CLR 339; Pearce v The Queen (1998) 194 CLR 610; Ryan v The Queen (2001) 206 CLR 267; R v Van der Horst [2006] SASC 243; R v Power [2003] SASC 288; R v Gibbs (2004) 89 SASR 30; Dinsdale v The Queen (2000) 202 CLR 321; R v Williscroft [1975] VR 292; R v Kastercum (1972) 56 Cr App R 298; Mackenzie v Betts (1980) 23 SASR 307; Postiglione v The Queen (1997) 189 CLR 295; R v Hoar (1981) 148 CLR 32; R v Nixon (1993) 66 A Crim R 83; R v Skrjanc (1994) 71 A Crim R 347; R v Tu (2001) 216 LSJS 297; R v LLK (2003) 231 LSJS 458; R v B, RWK (2005) 91 SASR 200; R v McNamara (2009) 105 SASR 38, considered.

R v BAGNATO
[2011] SASCFC 161
Court of Criminal Appeal: Gray, Sulan & Peek JJ
GRAY and SULAN JJ

This is an appeal against sentence.
Introduction
The defendant and appellant, Rosario Bagnato, pleaded guilty in the District Court to the offences of aggravated causing serious harm by dangerous driving, assault causing harm, aggravated assault and to two further counts of assault. The offending occurred on 8 February 2010.
On 4 August 2011, the defendant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment for all offending of ten years. A non-parole period of eight years was fixed. The sentence commenced on 20 July 2011, when the appellant was taken into custody. The Judge ordered that the defendant be disqualified from holding or obtaining a driver’s licence for ten years. By operation of law, that period of suspension commences at the time of his eventual release.
On appeal the defendant complained that in arriving at the final sentence of ten years imprisonment, the Judge had applied notional sentences to each of the offences and then utilised the powers contained in section 18A of the Sentencing Act, without giving sufficient consideration to the question of the concurrency in whole or in part of the notional sentences. Further, it was contended that the Judge failed to consider whether the overall sentence was so great that the principle of totality required a lesser sentence. Finally, it was contended that the sentence imposed was manifestly excessive.
The Facts
At about 6.00 pm on Monday 8 February 2010, the defendant was driving north on Morphett Road, Glengowrie in a 60 kilometre per hour zone at a speed of between 105 and 117 kilometres per hour. The defendant drove into the rear of a stationary motor vehicle that was proposing to turn right. The driver of the other vehicle was complying with all relevant road traffic rules. The impact was severe and the driver of the other vehicle sustained a fractured neck.
It was probable that alcohol had some part to play as the defendant admitted having consumed several beers earlier that day. However, the extent of the influence of alcohol was unknown as the defendant refused breath and blood testing.
Following the collision, airbags in the defendant’s vehicle were activated and he was able to leave his vehicle virtually uninjured. The driver of the other vehicle was trapped and the engine caught fire while he remained trapped in the vehicle. A motorcyclist stopped and, with others, went to extinguish the fire. The defendant confronted the motorcyclist, informed him that he was a member of the Rebels, a motorcycle gang, and kicked the motorcyclist in the thigh. The motorcyclist did nothing to provoke the assault.
The defendant was apparently of the view that the driver of the other car was at fault. While the other driver was trapped in his vehicle semiconscious, the defendant abused him and then punched him in the face.
The defendant abused others at the scene. A person who lived nearby was attempting to take photographs of what had occurred. The defendant grabbed him and hit him and then kicked him while he was on the ground. The victim sustained a broken collarbone. He was unconscious for a short time.
The fire service and an ambulance arrived at the scene. The defendant obstructed the ambulance officers. The defendant at this time threatened to kill the other driver. The ambulance officers were eventually able to remove the other driver from his vehicle. While the ambulance officers were moving the other driver by stretcher, the defendant again assaulted the other driver by striking him in the face.
The defendant resisted police officers in their attempt to effect his arrest until eventually he was subdued by capsicum spray.
The defendant claimed loss of memory. However, the evidence disclosed that he had not sustained a head injury. There is no other reason arising from the incident that could have caused any loss of memory. The psychologist report tendered at the sentencing hearing was of limited use as it was established that the defendant had lied to the psychologist on a number of material matters.
Investigations were made as to whether the defendant was mentally impaired. A neuropsychologist considered that the defendant did not meet the requirements for a declaration of mental incompetence. The defendant did not plead guilty until 16 May 2011.
Antecedents of the Defendant
The defendant, aged in his early thirties, has a long history of offending. That history commenced in 1991 when the defendant committed the offences of break and enter, larceny and damage property. Over the ensuing two decades a review of his record discloses nine convictions for assault, convictions for hindering police, convictions for driving offences including for driving whilst disqualified and whilst unlicensed.
The defendant’s record discloses that he was convicted on 10 April 2000 of two counts of causing bodily harm by dangerous driving and of failing to stop after an accident. He was sentenced for this offending to a suspended term of imprisonment of 15 months.
In March 2004, the defendant was convicted of numerous offences, including disorderly behaviour, driving at a dangerous speed, driving whilst under disqualification, failing to stop and driving with excessive alcohol in his blood. These offences constituted a breach of his suspended sentence bond. On this occasion he was sentenced to a total of 21 months’ imprisonment, with a non‑parole period of six months’ imprisonment. This included the revoked suspended sentence.
The Judge who sentenced the defendant for the present offending remarked:
… The event giving rise to those convictions occurred on 12 September 1998. On that occasion you were driving on Rose Terrace, Wayville at about 11.30 p.m. when people were coming out of the final day of the Royal Adelaide Show. You were driving first in an easterly direction but you suddenly turned right and mounted the central plantation where you struck two female pedestrians. You stopped for a moment and then drove off, leaving them where they were. They were treated at hospital for minor injuries. You were caught in the early hours of the next morning and provided a blood alcohol reading of .167 percent. You variously admitted and denied being the driver of the car. You eventually pleaded guilty to the offences. You were sentenced to 15 months imprisonment with a non-parole period of seven months. The sentence was suspended upon your entering into a bond for two years. You breached that bond and had to serve the sentence on top of other sentences of imprisonment for some of the breaching offences.
On any view, the defendant has a history of serious driving offences.
The Sentence
The sentencing Judge noted that, at the time of the collision, the defendant was driving at a speed grossly in excess of the 60 kilometre per hour speed limit in peak-hour traffic. The defendant was driving at a speed that was reckless in the extreme and in a manner that was dangerous in circumstances of a gross failure to keep a proper look out. The other driver did nothing to contribute to the collision. The defendant’s manner of driving was the sole cause of the collision.
The assaults on the other driver whilst trapped in his vehicle and then, later, whilst he was being carried injured on a stretcher are difficult to comprehend and extremely serious. The other driver was defenceless, badly injured and trapped in his vehicle when first assaulted. He remained defenceless when on the stretcher being conveyed to the ambulance for transport to hospital when the defendant attacked again. The Judge was correct to observe that these assault charges were extremely serious.
The assaults on the other two complainants were unprovoked. The person taking photographs received significant injuries.
The Judge commented that the defendant had shown no genuine remorse. There had only been a belated apology from his counsel.
The Judge commenced his remarks by indicating that he intended to impose the one sentence for all five offences, but that he would indicate a notional sentence for each offence to explain how he arrived at the one sentence. The Judge said he would make a deduction for the guilty pleas and finally review the sentence, having regard to the principle of totality.
It was unnecessary for the Judge to indicate notional sentences. A failure to do so would not have constituted an error.[1]
[1] See R v Copeland (No 2) (2010) 108 SASR 398 per Gray and Kourakis JJ, R v Ravet [2011] SASCFC 67 per Duggan, Sulan and David JJ.
The Judge referred to the aggravated dangerous driving as a serious example of the offence. The speed at which the defendant was travelling in peak‑hour traffic was reckless. It resulted in a collision which caused the other driver extensive injury. The Judge regarded five and a half years’ imprisonment as appropriate as a notional head sentence for this offence.
As to the first assault on the other driver, the Judge set a notional sentence of two years’ imprisonment. In respect of the assault while the other driver was on the stretcher, the Judge identified a notional head sentence of two years and four months’ imprisonment. As to the assault upon the person who was photographing the incident, the Judge set a notional head sentence of one year and two months’ imprisonment. In respect of the assault upon the motorcyclist, the Judge set a notional head sentence of imprisonment for one year.
The total of the five notional head sentences came to 12 years’ imprisonment, which the Judge reduced to ten years’ imprisonment, having regard to the pleas of guilty. The approach of the sentencing Judge in respect of totality was in accord with that referred to in Place.[2] The Judge set a non-parole period of eight years’ imprisonment and disqualified the defendant from driving for ten years.
The Appeal
[2] R v Place (2002) 81 SASR 395.
Section 18A
Counsel for the defendant accepted that the Judge had imposed one sentence pursuant to section 18A of the Sentencing Act. It was contended that the Judge was entitled to arrive at the sentence by having regard to each individual offence, applying a notional sentence, and then considering the overall effect, as he did. Counsel submitted however, that the Judge erred in not considering whether the notional sentences should have been concurrent or partially concurrent. Counsel emphasised that the offending occurred over a very short period and could be described as the one overall incident. Finally, it was said in failing to determine that the sentences, and in particular those relating to the various assaults after the accident, should be concurrent, the Judge ultimately determined a sentence which was manifestly excessive.
The Director of Public Prosecutions submitted that the approach followed by the Judge was a legitimate approach. Although the Judge was not required to identify notional sentences for each offence, his decision to do so did not amount to an error. It was contended that the assaults were separate offences involving three victims, and that it was open to the Judge to treat them as such and to ascribe notional cumulative sentences.
It was pointed out however that, when considering the appeal, the question to be answered by this Court is whether the ultimate sentence imposed adequately reflected the criminal conduct of the defendant, and whether the sentence was manifestly excessive. In that regard the Director submitted that the Judge had not made any error of sentencing principle, that all relevant circumstances had been considered and that the sentence was not manifestly excessive.
The Judge imposed one overall sentence of ten years’ imprisonment, with a non-parole period of eight years’ imprisonment. It is clear that the Judge applied section 18A. That section provides:
Sentencing for multiple offences
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, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
Prior to the enactment of section 18A, the issue of concurrent and cumulative sentences had been the subject of consideration by courts. The leading judgment approved both in the High Court and this Court is Tichy.[3] Wells J discussed the difficulties confronting a judge when sentencing for multiple offending and observed:[4]
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. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[3] Attorney-General v Tichy (1982) 30 SASR 84.
[4] Attorney-General v Tichy (1982) 30 SASR 84 at 92-93.

At the time of its introduction in 1992, the then Deputy Premier, in the second reading speech, stated:[5]
The Bill has been amended to follow the provision contained in section 4K (4) of the Commonwealth Crimes Act 1914 which empowers a court convicting a person of multiple offences against the same provision of the law of the Commonwealth to impose one penalty in respect of all of those offences. This provision was originally raised by the Senior Judge for consideration as providing a useful sentencing tool, especially in cases involving multiple acts of dishonesty. The amendment has been approved by the Chief Justice and the Department of Correctional Services. The amendment will simplify the task of the sentencer in establishing an appropriate penalty and the setting of a non-parole period. The new provision will also eliminate the risk of miscalculation and errors in complex sentence calculations and avail prisoners of a clear picture of the penalty imposed by the court.
[Emphasis added]
[5] South Australia, Parliamentary Debates, House of Assembly, 24 March 1992, 3536 (D.J. Hopgood, Deputy Premier).
In observing that the proposed amendment would simplify the task of the sentencer in establishing an appropriate penalty and the fixing of the non-parole period, one of the factors which Parliament had in mind appears to have been whether sentences for multiple offending should be cumulative or concurrent.
Since its introduction, there has been extensive judicial commentary about the approach a sentencing judge should take when applying section 18A in cases of multiple offending, in cases of multiple offenders, or both. This is unsurprising. Section 18A provided the opportunity for a major reform to sentencing practices. Those practices had been long standing. It may have been expected for some time to pass before the full potential of section 18A would be given effect.
In Major,[6] the defendant pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary over a ten-year period. The defendant confessed his guilt to police. In respect of four offences, the victims had not been identified and were unknown. The sentencing Judge imposed a sentence of 12 years’ imprisonment with a non-parole period of eight years. The Director appealed. Doyle CJ and Olsson J regarded the case as unusual. The approach to sentencing under s 18A suggested by Doyle CJ was as follows:[7]
I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1888 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.
[6] R v Major (1998) 70 SASR 488.
[7] R v Major (1998) 70 SASR 488 at 490.
In Symonds,[8] Doyle CJ made it clear that the process discussed in Major was not a process that had to be followed:[9]
In Major the Court was not stating a process that must be following in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[Emphasis added]
Doyle CJ emphasised that there is no fixed formula or requirement in applying section 18A. Applying notional cumulative or concurrent sentences will, in many cases, be a futile exercise.
[8] R v Symonds [1999] SASC 217.
[9] R v Symonds [1999] SASC 217 at 4-5 [21] – [22].
In Nylander,[10] Bleby J discussed the different approaches which have been taken to section 18A:[11]
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[Emphasis added]
[10] R v Nylander (2003) 228 LSJS 24.
[11] R v Nylander (2003) 228 LSJS 24 at [81]-[85].
The Correct Approach
The debate regarding the different approaches to the application of section 18A was more recently discussed and extensively reviewed in Copeland (No 2).[12]Gray J, having discussed the authorities, observed:[13]
[12] R v Copeland (No 2) (2010) 108 SASR 398.
[13] R v Copeland (No 2) (2010) 108 SASR 398 at 409-411 [29].
It is convenient to extract the relevant principles arising from the above authorities:
- The process of sentencing is ultimately a matter of discretion and judgment.[14] The High Court has given its approval to the instinctive synthesis approach[15] and has emphasised that the process of sentencing is not a mathematical exercise.[16]
[14] House v The King (1936) 55 CLR 499 at 503 (Starke J), 505 (Dixon, Evatt & McTiernan JJ).
[15] Wong v The Queen (2001) 207 CLR 584 at [74]-[78] (Gaudron, Gummow & Hayne JJ).
[16] Cameron v The Queen (2002) 209 CLR 339 at 358 (Kirby J) citing Pearce v The Queen (1998) 194 CLR 610 at [46]; Ryan v The Queen (2001) 206 CLR 267 at [33].
- The purpose of sentencing remarks is primarily to provide an explanation to a defendant for the sentence imposed, but also to demonstrate that correct principles have been applied. When sentencing remarks address these concerns, not only is the defendant informed about the punishment to which he or she is subject, but it also assists the appellate Court in understanding the basis for the sentence and in performing its appellate function. This is reinforced by the terms of section 9 of the Sentencing Act with respect to the obligation to provide reasons for sentence.
- The content of sentencing remarks is a matter of discretion for a sentencing Judge.
- In the case of multiple offending, it is necessary for the Court, if it be a course of conduct, to have regard to that course of conduct.[17] It is also necessary for the sentencing Court to have regard to other offences that are to be taken into account[18] and the need to ensure that the defendant is adequately punished.[19]
- There is a need to avoid the artificiality of a sentence that might follow where the sentencing Judge approaches the task mathematically at the cost of appropriately weighing all relevant factors which determine the criminality of the defendant’s conduct.[20]
- Section 18A of the Sentencing Act provides sentencing Judges with an important tool in allowing the Court to overcome the difficulties inherent in sentencing for multiple offences.[21]
- The authorities recognise that in exercising the power conferred by section 18A, the sentencing Judge may refer to notional head sentences in the reasons for sentence, or may not.[22]
- The decision not to identify separate notional head sentences for each offence does not represent an error of law.[23]
- The matter of importance is that an adequate explanation for the sentence is provided in the form that the Judge may decide.[24]
- On an appeal against sentence, an error must be identified before a sentence may be interfered with.[25] The relevant inquiry to be made on an appeal against sentence is well established. The Court must ask whether specific error has been shown: whether there has been some error of principle; whether irrelevant matters have been taken into account; whether the facts have been mistaken; or, whether a relevant matter has not been taken into account. Error may be inferred from a result that is unreasonable or plainly unjust, that is, manifestly excessive or manifestly inadequate.[26] A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[27]
- When considering an appeal from a sentence imposed utilising section 18A, absent a specific error as set out above, it would be necessary to consider whether the sentence was manifestly excessive or inadequate and infer an error accordingly in keeping with the ordinary appellate approach.
[17] Section 10(1)(c) of the Criminal Law (Sentencing) Act 1988 (SA).
[18] Section 10(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA).
[19] See section 10(1)(k) of the Criminal Law (Sentencing) Act 1988 (SA).
[20] For example see Wong v The Queen (2001) 207 CLR 584 at [75], [78] (Gaudron, Gummow & Hayne JJ); see also Attorney-General v Tichy (1982) 30 SASR 84 at 93; see also R v Nylander (2003) 228 LSJS 24 at [85] (Bleby J).
[21] See for example discussion in R v Van der Horst [2006] SASC 243 at [54]-[57] (Vanstone J).
[22] R v Major (1998) 70 SASR 488; R v Nylander (2003) 228 LSJS 24 at [81]-[85] (Bleby J, Prior and Sulan JJ agreeing); R v Van der Horst [2006] SASC 243 at [54]-[57] (Vanstone J); R v Power [2003] SASC 288 at [18] (Sulan J, with whom Doyle CJ and Besanko J agreed).
[23] R v Symonds [1999] SASC 217 at [21] (Doyle CJ, with whom Perry and Mullighan JJ agreed).
[24] See the comments of Doyle CJ in R v Gibbs (2004) 89 SASR 30 at [3].
[25] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
[26] Markarian v The Queen (2005) 228 CLR 357 at [25]; Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
[27] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
White J expressed the view that the approach of the Chief Justice in Major and Symonds was the appropriate approach and should be followed as a general rule, and that the approach of the sentencing court to go directly to a single sentence under s 18A is not the general rule. Not to do so amounted to an error of sentencing principle. Kourakis J considered that it was desirable for a sentencing judge to indicate the starting point for the sentence for each individual offence, the broad approach taken to accumulation and concurrency and whether there has been a reduction of the sentence which would otherwise have been imposed, either on account of a guilty plea or in accordance with the totality principle. He went on to say that a failure to undertake that exercise did not amount to an error of law, nor was it a legal requirement.
In Ravet,[28] Sulan J, with whom Duggan and David JJ agreed, discussed the approach that was appropriate in cases of multiple offending. The Court was unanimous in its express adoption and approval of the above summary of Gray J in Copeland (No 2). As a consequence, the differences of opinion in Copeland (No 2) were resolved. Sulan J observed:[29]
Sentencing remarks should convey to a defendant the relevant matters to which the sentencing judge has had regard. They should indicate to a defendant the weight given to various factors to which the judge regards as relevant. For example, if the judge considers that general deterrence in a particular case carries greater weight than the personal circumstances of the defendant, the judge should say so. The remarks should be sufficiently detailed to enable an appellate court to understand the process of reasoning adopted by the sentencing judge. In my view, there is no requirement upon a sentencing judge to apply a mathematical approach by indicating notional sentences for each offence. This is particularly so in cases of multiple offending where the total sentence arrived at will bear little relationship to the eventual sentence once there has been a lengthy deduction for totality.
On the other hand, if a sentencing judge chooses to approach his or her task in that way, that does not amount to an error of law, even though the final sentence may bear little relationship to the overall sentence arrived at when applying the mathematical approach.
Ultimately, the task of the appellate court is to consider whether a sentence finally imposed is manifestly excessive.
[28] R v Ravet [2011] SASCFC 67.
[29] R v Ravet [2011] SASCFC 67 at 11-12 [43] - [45].
Sentencing is not, and cannot be regarded as, an exact science.
Instinctive Synthesis
The circumstances of offending and those of an offender are so varied that it is not possible to give effect to any formula which will achieve a just result in every case. The position becomes even more complex when dealing with multiple offences and more than one victim. There is to be consideration of any mitigating or aggravating features. A judge is required to consider a multitude of factors, many competing, and then arrive at a sentence which is appropriate, having regard to all of those factors.
In Veen [No 2],[30] Mason CJ, Brennan, Dawson and Toohey JJ recognised that sentencing is not a purely logical exercise. They referred to the purposes of criminal punishment as being varied and sometimes in conflict. Those purposes, such as protection of society, deterrence of the offender, general deterrence, retribution and reform, cannot be considered in isolation. They may point to different directions. Their Honours commented:[31]
…However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter…
[30] Veen v The Queen [No 2] (1988) 164 CLR 465.
[31] Veen v The Queen [No 2] (1988) 164 CLR 465 at 476-477.
In AB,[32] McHugh J considered what he described as the two‑tiered approach which he described as determining the sentence that is objectively appropriate and then discounting for mitigatory factors and adding on for aggravating factors. McHugh J rejected that approach and supported the approach that, ultimately, every sentence imposed represents the sentencing judge’s instinctive synthesis of the various aspects involved in the sentencing process.[33]
[32] AB v The Queen (1999) 198 CLR 111.
[33] R v Williscroft [1975] VR 292 at 300.
The sentencing process involves conflicting objectives. On the one hand, the sentence has a punitive element which the Court must recognise. It has personal and general deterrence, which may call for a severe sentence. Balanced against these factors are matters personal to the defendant, including rehabilitation prospects and questions relating to the defendant’s psychiatric condition. McHugh J observed:[34]
Many, probably the large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community’s view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication. Another objective is to impose a sentence, with or without conditions, that will further the public interest by encouraging and not discouraging the convicted person to renounce criminal activity and to re-establish himself or herself as a law-abiding citizen. Still another objective is that the sentence should reflect an allowance for those circumstances, personal to the convicted person, which call for mitigation. These objectives and others have to be achieved within a conceptual framework that requires that there should be parity between sentences, that the sentence should be proportional to the circumstances of the crime and that, where more than one sentence is involved, the total sentence should not exceed what is appropriate for the overall criminality of the convicted person.
[34] AB v The Queen (1999) 198 CLR 111 at 120-21 [14].
In Markarian,[35] McHugh J developed the approach discussed in AB:[36]
The appellant was granted special leave to appeal in this case because he contended that the key question in the case was whether “two-tier sentencing” in contrast to “instinctive synthesis” is the correct approach to sentencing. In this case, the Court of Criminal Appeal applied the “two-tier” approach. It erred in doing so.
By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the “objective circumstances” of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
The two-tier sentencer contends that using the instinctive synthesis is inimical to the judicial process and is an exercise of arbitrary judicial power, unchecked by the giving of reasons. The two-tier sentencer claims, as Hulme J did in this case, that, where the sentence is the result of an instinctive synthesis, it makes one “wonder whether figures have not just been plucked out of the air”. The instinctive synthesiser, on the other hand, contends that the two-tier sentencer mistakes an illusion of exactitude for the reality of sentencing because there is no method of sequential arithmetical reasoning that produces the correct sentence for any case. A sentence can only be the product of human judgment, based on all the facts of the case, the judge’s experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments. The instinctive synthesiser asserts that sentencing is not an exercise in linear reasoning because the result of each step in the process is not the logical foundation for the next step in the process. Nor in practice can it be an exercise in multiple regression where one starts with particular coefficients and adds to or subtracts from their result by changing the weighting of each variable as new variables are added to the process. The circumstances of criminal cases are so various that they cannot be the subject of mathematical equations. Socialogical variables do not easily lend themselves to mathematisation. Hence, when judges embark on a process that seeks to adjust incrementally or decrementally a hypothetical sentence, “they but illustrate the way in which the human mind tries, and vainly tries, to give to a particular subject matter a higher degree of definition that it will admit”, as Lord Porter said in another context.
In AB v The Queen, I gave my reasons for preferring the instinctive synthesis approach. In my view, the judge who purports to compile a benchmark sentence as a starting point inevitably gives undue – even decisive – weight to some only of the factors in the case. Furthermore, the judge falls into the error of determining that notional sentence by reference to a hypothetical crime derived from some only of the circumstances of the case. Instead of sentencing this accused for his or her criminality, the judge sentences the person for another crime and adjusts the notional sentence by reference to factors that are additional to the objective circumstances. Indeed, there are some offences – manslaughter is an example – where an attempt to fix a first-tier sentence by reference to the objective circumstances is meaningless. How can a judge possibly fix a first-tier or any sentence for the mother who has killed her newborn baby without taking into account her personal circumstances?
[References omitted]
[35] Markarian v The Queen (2005) 228 CLR 357.
[36] Markarian v The Queen (2005) 228 CLR 357 at 377-79 [50] – [53].

The criticism set out by McHugh J is applicable to the approach of the sentencing Judge in this case. The consideration of each offence independently of the other offending, and the fixing of notional sentences, creates a sense of artificiality about the approach to the sentence. It leads to the very debate which has occurred in this case; that is, a debate as to whether the notional sentences should be concurrent, partly concurrent or cumulative, and whether each notional sentence, taken in isolation, is appropriate and whether there is proportionality between the notional sentences. It also leads to questions as to how a sentencing judge deals with personal circumstances, mitigating circumstances and aggravating circumstances in respect of each notional sentence.
In Muldrock,[37] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ considered the legislative sentencing regime in New South Wales which provided for a statutory non-parole period in respect of certain specified offences. The Court observed:[38]
At common law the exercise of the sentencing discretion is the subject of established principles. These include proportionality, parity, totality, and the avoidance of double punishment. In R v Way, the Court of Criminal Appeal held that s 21A(1) preserves the entire body of judicially developed sentencing principles, which constitute “law” for the purposes of both s 21A(1) and s 21A(4). No question of the correctness of that interpretation was raised in this appeal and it may be accepted. In this statutory context the principles of the common law respecting the sentencing of offenders answer the description of “matters that are required … to be taken into account by the court under any … rule of law”.
Under common law sentencing practice, factors that do not affect the assessment of the relative seriousness of the offence may nonetheless be relevant to the determination of an appropriate sentence. Such factors include that the sentence may be served under conditions of segregation or that imprisonment will be particularly burdensome because of the offender’s physical condition. Considerations of this character, which have been recognised by courts as bearing relevantly on the exercise of the sentencing discretion in this context, answer the description of “matters that are … permitted to be taken into account by the court under any … rule of law”. The defendant submits and the respondent correctly accepts that s 21A permits the court to take into account all of the factors that, under the common law, are relevant to the determination of sentence. This recognition is important to understanding the operation of Div 1A.
…
Section 54B applies whenever a court imposes a sentence of imprisonment for a Div 1A offence. The provision must be read as a whole. It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word “unless”. Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh in Markarian v The Queen.
…
[37] Muldrock v The Queen (2011) 85 ALJR 1154.
[38] Muldrock v The Queen (2011) 85 ALJR 1154 at [18] – [19], [26].
It would appear that the Full High Court has endorsed the approach of McHugh J in Markarian and accepted that the instinctive synthesis approach whereby the sentencing judge identifies all of the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is an appropriate sentence given all of the factors of the case. Although the High Court was addressing New South Wales legislation, the judgment is a clear endorsement of the approach to sentencing outlined by McHugh J.
There can be no hard and fast rule or principle which governs whether sentences should be concurrent or cumulative. In this case, the question which must ultimately be considered is whether the overall sentence for the offending is manifestly excessive. The fact that the Judge chose to impose individual notional sentences in respect of each offence provided a degree of transparency. However, the sentence must be looked at as an overall sentence. For example, in this case, if the Judge had determined that the charge of aggravated causing serious harm and aggravated assault on the other driver should be treated together because of a common victim, then one might have postulated that the sentence for aggravated causing serious harm by dangerous driving, which carries a maximum penalty of life imprisonment, would have been aggravated by the conduct in respect of the two assaults, and that sentence would be greater than five and a half years.
One of the dangers of the approach taken by the sentencing Judge is that a defendant complaining of the sentence will examine each notional sentence and argue, as is the case here, that the notional sentences that were imposed should have been concurrent rather than cumulative. Whatever may be said about the niceties of whether the sentences should be cumulative or concurrent or partially concurrent, as we have said, the question for this Court is whether the overall sentence is manifestly excessive.
Totality
The second ground of appeal relates to a possible reduction of the overall sentence on account of totality.
The approach referred to by the Full Court in Place,[39] whereby once an overall sentence has been arrived at the sentencing Judge should step back and consider whether the sentence, in all the circumstances, is crushing is the approach that should be adopted. This should occur in circumstances where section 18A is used.
[39] R v Place (2002) 81 SASR 395.
The Judge in the present proceeding gave express consideration to the principle of totality. He considered the offending and the offender and was of the view that the sentence for this offending was not crushing. In our view, the Judge was correct.
Manifestly Excessive
The sentencing Judge, rather than attempting to set notional sentences and arriving at a result, could in our view, have considered the conduct as a whole. At one level, there were five separate and distinct offences, but they occurred within a short space of time. The driving offence is distinct from what occurred later. This was highly dangerous driving by a person with a very poor driving record. The defendant had no regard for the law and has in the past had no regard for the law. He has numerous convictions for driving offences. He has breached many court orders. At times he drove unlicensed. In the past, as in this case, he had little or no regard for other road users. His driving on this occasion was utterly reckless, with a total disregard for the safety of others. His conduct reflected an attitude which cannot and should not be tolerated.
When interviewed by police, well after the events had occurred, the defendant claimed that the other driver was responsible. The collision, however, was solely the defendant’s responsibility. His response to blame the other driver and then to attack others who were trying to assist is only explicable on the basis that he considered himself to be above the law.
The defendant assumed that all of his victims were in some way at fault. He attacked the injured driver of the other vehicle. He assaulted another person who attempted to assist. He then attacked a person who attempted to take photographs of the scene. He obstructed ambulance drivers and the police to the point where they were required to use capsicum spray to effect his arrest. His attack on the injured driver when he was being removed on a stretcher demonstrates the extent to which the defendant had little regard for others.
When considering the total circumstances of the defendant’s offending, the effect on his victims and his poor antecedents, there is little that can be said to mitigate the offending. The defendant has not come to terms with the fact that he is responsible for his conduct, that he has caused severe injuries to others and disrupted their lives.
In our view the sentence imposed by the Judge was well within his sentencing discretion. The defendant’s offending was very serious. A severe sentence was warranted. We do not consider the sentence to be excessive let alone manifestly excessive.
A Further Matter
As set out earlier, the defendant’s past record demonstrates that he is unfit to drive a motor vehicle. This unfitness arises from a combination of circumstances including alcohol abuse and an apparent attitude that he is above the law. His conduct the subject of the present appeal demonstrates that he has not been rehabilitated at all by the sentences and penalties imposed on him in the past. He should not be licensed to drive until he has satisfied the relevant authorities that he is fit to do so. Full medical reports should be required as to his fitness to drive. These reasons should be forwarded to the Registrar of Motor Vehicles. It is difficult to understand how the defendant could have been permitted to drive at the time of the present offending.
Conclusion
We would dismiss the appeal.
PEEK J. I would allow the appeal, set aside the sentence of imprisonment and substitute one sentence of eight years imprisonment pursuant to s 18A Criminal Law (Sentencing) Act 1988. I would fix a non-parole period of six years four months. The sentence should be backdated to 20 July 2011, the day to which his Honour backdated the original sentence.
Introduction
I have had the benefit of reading the joint judgment of Gray and Sulan JJ (the majority judgment) in draft form and I largely adopt the facts as there stated.
The grounds of appeal are as follows:
1The learned sentencing Judge erred in the exercise of the discretion under s 18A of the Criminal Law (Sentencing) Act 1988 in that he failed to consider and determine whether the individual notional sentences should be served concurrently or cumulatively, or (if he did so) that he failed to determine that all or some of them should be served concurrently.
2Further, or alternatively, the learned sentencing Judge erred in failing to apply the principle of totality.
3 Further, or alternatively, the sentence imposed was manifestly excessive.
Having regard to the facts and the grounds of appeal, the primary questions for consideration would appear to be whether there was sentencing error in that at least partial concurrency of sentence was required and/or whether the sentence was manifestly excessive. This initial analysis of the case is strengthened by the fact that there was no complaint in the grounds of appeal, or in the course of argument, about the fact that the sentencing Judge had indicated notional sentences for each of the offences before proceeding to impose a sentence pursuant to s 18A Criminal Law (Sentencing) Act 1988 (hereafter Sentencing Act) or that he had thereby erred in law. Indeed, quite to the contrary. The appellant’s position was that the learned Judge had properly done so and that the resulting transparency enabled the appellant to submit that his Honour had paid no, or insufficient, attention to the matter of partial concurrency of the notional sentences in circumstances where the facts revealed closely connected offences, all committed at the same location and within a total period of a few minutes.
Structure of this judgment
However, the majority judgment ranges somewhat broader. It particularly refers to the vexed question of the requirement or desirability of specification of “notional sentences” for multiple offences when utilising s 18A Sentencing Act and accordingly I will also address those matters. The structure of this judgment is as follows:
Part AThe doctrine of concurrency of sentences
Part BThe High Court Decisions in Pearce v The Queen and Johnson v The Queen
Part CThe obligation to address concurrency of sentence
Part DThe approach of the majority in the present case
Part E The “two-stage”/“instinctive synthesis” debate
Part F The disposition of this appeal
PART A: THE DOCTRINE OF CONCURRENCY OF SENTENCES
There are a number of strong indicators that the assault offences following the accident should be afforded at least partial concurrency[40] as between themselves. In summary, the assault offences:
·are of the same type;
·are committed within minutes of each other;
·are committed in the same place;
·arise following a common precursor, the accident; and
·are all quite pointless and self destructive.
[40] Here and elsewhere “concurrency” includes partial concurrency.
Before considering the facts in detail, I will examine the nature and present status of the doctrine of concurrency of sentencing.
A core concept of concurrency of sentence – the “one transaction rule”
Thomas, Principles of Sentencing[41] referred to the core concept of concurrency of sentencing as the “one-transaction rule” and stated:
The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive.
[41] DA Thomas, Principles of Sentencing, (Heinemann Educational Books Ltd, 2^nd ed, 1979) 53.
I will not embark on an examination of the long history of the procedural and substantive origins and development of the doctrine of accumulation and concurrency of sentence for either felonies or misdemeanours or combinations of both. For present purposes, I will simply take an arbitrary time period of about the last fifty years or so and note that the existence of such a rule in Australia has been relatively well settled during that period.
In 1956 in R v Melville,[42] Street CJ (with whom Owen and Herron JJ concurred), allowed an appeal on the basis that the sentences had been made cumulative rather than concurrent. His Honour stated:
They both arose out of the same enterprise. They were both so connected that I think they could be regarded as part of one incident so that I think the appropriate order would be to vary the penalty by directing that those two sentences should be served concurrently.
[42] (1956) 73 WN (NSW) 579, 583.
In 1974 in Dicker v Ashton,[43] Wells J addressed facts which, while less serious than the facts here, are very much closer to the present appellant’s conduct (after the accident) than are the facts and circumstances in his Honour’s later decision in Attorney General v Tichy[44] (to be referred to below). In Dicker v Ashton, the defendant had became intoxicated at an hotel and caused a great disturbance. He was forcefully pushing and shoving various persons with some force, while shouting various epithets and abuse. This eventually led to a contingent of police arriving and attempting to arrest him. He resisted their efforts with considerable force and vigour, so violently that the police took some time to remove him from the bar. Outside, he continued to struggle and kick at the police, all the while continuing to shout abuse. He was charged with three offences of disorderly behaviour, indecent language and resist arrest. The local Justices imposed cumulative sentences of two months imprisonment on each of the first and third charges with no penalty on the second charge. Wells J found that they had erred and stated:[45]
I am of the opinion that, unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated, and that simply represent facets or the one course of conduct. In my opinion, the three offences were so mixed up together and were so clearly facets of the same course of conduct – conduct perhaps describable as making a thorough nuisance of himself – that the court should have inclined towards concurrent sentences as a matter of principle, if imprisonment was warranted.
[43] (1974) 65 LSJS 150.
[44] (1982) 30 SASR 84, 92-93.
[45] (1974) 65 LSJS 150, 151.
In R v Dorning Walters, Zelling and Williams JJ identified the same principle, stating:[46]
The general principle is that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other, the sentences should be concurrent.
[46] (1981) 27 SASR 481, 482. In Dorning, the appellant was sentenced for four robberies committed over five days. Counts 2 and 3 were made concurrent but cumulative upon the concurrent sentences passed upon counts 3 and 4. The submission on appeal that partial concurrency was insufficient, and that all four sentences should have been made concurrent, was rejected upon the basis that the mere fact that all four robberies were similar and committed as part of one design to obtain money to leave the country was insufficient to bring the offending within a principle requiring full concurrency of sentence.
This was also at that time recognised as the correct approach in the Northern Territory. Thus in R v Brown Forster CJ stated:[47]
In a number of unreported decisions of this court it has been held that, save in special circumstances, when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, cumulative penalties should not be imposed, and many sentences passed from day to day have demonstrated adherence to this principle. …
[47] (1982) 5 A Crim R 404, 407.
Of course, words such as “course of criminal conduct” or “activity” or “one transaction” or indeed “one multi-faceted course of criminal conduct” will always be somewhat unspecific. The matter is really one of degree and one proceeds by reference to a postulated core concept. A passage from the judgment of Wells J in Attorney General v Tichy is often referred to in this context and is as follows:[48]
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. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
In the instant appeal, I should hold that the robbery under arms and the shooting at the policeman were separate courses of criminal conduct, and I should pray in aid, if authority is pertinent to such analyses, the cases of Reg v Kastercum and Mackenzie v Betts, with the judgments and reasoning in which I respectfully agree. It seems to me that the criminal operation of escaping from the scene of a crime, carried out by an offender who is determined to oppose, by the use of a firearm, any policeman who threatens to frustrate his purpose, is a different operation from the crime committed at the scene. If the police officer in the present case had approached the respondent, and been shot at, in Gawler (to which the respondent had—let it be supposed—escaped in the victim’s car) there can be little doubt that the shooting would have been regarded as separate from the robbery. To my mind, it was entirely fortuitous that the respondent was confronted by the police car when he was, and not when he was much further afield.
(Emphasis added)
[48] (1982) 30 SASR 84, 92-93.

I do not disagree with his Honour’s remarks but I make the following comments concerning the context in which they were made. The first comment is that the facts in Tichy were extremely serious. The armed robbery was carried out on a young lady assistant alone in a chemist shop at night. It was not committed on the spur of the moment; the robbers had gone to that shop ready to carry out the robbery twice over the preceding fortnight and found it too busy. When they did enter, they were wearing beanies pulled over their faces and the respondent held a loaded rifle. He pointed it at the young lady, told her to lie on the floor, and taped her mouth, arms, ankles and eyes. He extracted the money from the safe and the robbers ran out to the street where he encountered a police patrol car on routine patrol duties. The respondent kept moving towards the approaching police car and fired aimed shots from the shoulder at it. He had to perform the deliberate act of working the lever action after each shot. He fired over five rounds as the car approached and another nine as it withdrew. Numerous bullet holes were later found on the car, some close to the driver’s position. The respondent later made statements of a highly incriminating nature as to his willingness to shoot any police officer who might try to stop him.
King CJ noted in his judgment that there was a basis for concurrent sentences, but the real problem was that the sentences imposed were far too short. His Honour stated:[49]
The learned sentencing judge ordered that the sentences for the two crimes be served concurrently. I think that the connection between the crimes was sufficient to justify that course, although the imposition of consecutive sentences would also have been consonant with principle. The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence.
[49] (1982) 30 SASR 84, 85-86.
The second comment is that Wells J alluded to a well established policy of the courts, both in England and Australia, that attempts to escape from crime scenes by the use of violence are to be punished by stern cumulative sentences. The case of R v Kastercum[50] is referred to by his Honour but there are a number of other such decisions. As Thomas, Principles of Sentencing states “violent resistance to arrest does not form part of the same transaction as the offence for which the arrest is being attempted. … consecutive sentences are appropriate.”[51] The paradigm case is this very situation in Tichy, shooting at a police officer in order to escape. Obviously, in the present case, none of the offences relate to an assault on a police officer or to resistance to an arrest.
[50] (1972) 56 Cr App R 298.
[51] DA Thomas, Principles of Sentencing, (Heniemann Educational Books Ltd, 2^nd ed, 1979) 55.
The third comment is that Wells J agreed with the judgment in Mackenzie v Betts[52] in which Walters J had specifically stated that the general principle is “that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other, the sentences should be concurrent”.[53] And, of course, R v Dorning[54] had been decided only the year before, the Court of Criminal Appeal there specifically applying Mackenzie v Betts[55] and formulating the principle reproduced above. There is no doubt that R v Dorning[56] remains binding authority for that proposition and is still regularly cited in that regard.[57]
[52] (1980) 23 SASR 307.
[53] (1980) 23 SASR 307, 308. His Honour had said much the same in his earlier decision in Mayfield v Samuels (1971) 1 SASR 354, 357.
[54] (1981) 27 SASR 481, 482 (Walters, Zelling and Williams JJ).
[55] (1980) 23 SASR 307.
[56] (1981) 27 SASR 481.
[57] For example, in R v Capalbo [2005] SASC 47 discussed below.
In summary, the case of Attorney General v Tichy[58] in no way constituted the genesis or formulation of some new principle. Rather, it was merely an application of established principle and Wells J did not profess otherwise.
[58] (1982) 30 SASR 84, 92-93.
The doctrine of totality
Prior to the advent of provisions such as s 18A Sentencing Act, the discretion[59] of a sentencing Judge to order cumulative sentences was, as Thomas states, “subject to two major limiting principles, which may be called the ‘one-transaction rule’ and the ‘totality principle’.”[60]
[59] There have been at different times, in different jurisdictions, various legislative provisions whose effect was to limit the number of cumulative sentences that might be imposed. Section 31 Sentencing Act now provides that any number of consecutive sentences may be imposed in South Australia.
[60] DA Thomas, Principles of Sentencing, (Heinemann Educational Books Ltd, 2^nd ed, 1979) 52-55.
The ambit of the first constraint, the ‘one-transaction rule’ discussed above, will obviously be subject to argument in particular cases but there is no doubt that the general rule is that a person convicted of multiple offences is entitled to a correct consideration and application of the principles of cumulative and concurrency of sentencing which, in a particular case, may powerfully indicate that a full or partial order for concurrency of sentences is called for. Appeals against sentence continue to be allowed where that principle is disregarded or misapplied.
The second constraint is the “totality principle” which, in essence, imposes a requirement on a sentencer who has decided to impose cumulative sentences to have a “last look” at the total sentence thereby produced and to ask “is that too much?” The answer to that question essentially depends on an assessment of the appropriate proportionality between the total criminal offending involved and the total length of sentence proposed. Thus in Mill v The Queen, Wilson, Deane, Dawson, Toohey and Gaudron JJ summed up the matter:[61]
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 [”]; “when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.
See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
(Footnotes omitted)
[61] (1988) 166 CLR 59, 62-63.
PART B: THE HIGH COURT DECISIONS IN PEARCE V THE QUEEN AND JOHNSON V THE QUEEN
In the recent decision in Muldrock v The Queen, the High Court stated that at “common law the exercise of the sentencing discretion is the subject of established principles. These include proportionality, parity, totality, and the avoidance of double punishment.”[62] The footnote reference to the decision relevant to the avoidance of double punishment is to Pearce v The Queen[63] (Pearce) wherein McHugh, Hayne and Callinan JJ pronounced the following sentencing principle:[64]
[45]A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[Footnote omitted]
[62] (2011) 85 ALJR 1154, 1160 [18] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[63] (1998) 194 CLR 610.
[64] (1998) 194 CLR 610, 623-624.
I will refer to this passage as “the statement of principle at [45] in Pearce”.
The facts in Pearce may be summarised as follows. The appellant broke into the victim’s home and beat him. He was charged with various counts in an indictment which included both count 9 (maliciously inflicting grievous bodily harm with intent to do grievous bodily harm) and count 10 (breaking and entering the dwelling-house of the same victim and, while therein, inflicting grievous bodily harm on him).[65] There was an express common element to both charges, that of the infliction of grievous bodily harm. The trial Judge refused an application for an order staying proceedings on one or other of those two counts. The appellant thereupon pleaded guilty to various counts including counts 9 and 10 on each of which he was sentenced to 12 years imprisonment, those sentences to be served concurrently with each other but cumulatively upon a sentence imposed for another offence. There was no relevant sentencing provision comparable to s 18A Sentencing Act.
[65] Counts 9 and 10 charged offences against ss 33 and 110 of the Crimes Act 1900 (NSW) respectively. Both carried the same maximum period of imprisonment of 25 years.
The analysis of the plurality judgment in Pearce v The Queen
The plurality judgment first considered the issue of “double prosecution” and concluded that no plea in bar could be upheld and that no abuse of process was involved; the charges, although having a common element, were different in important respects.[66] Their Honours then turned to the second and discrete issue of “double punishment”. After analysis, their Honours stated:[67]
[66] (1998) 194 CLR 610, 615-621.
[67] (1998) 194 CLR 610, 623-624 (McHugh, Hayne, Callinan JJ).
[40]To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
...
[42]It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by “excessive subtleties and refinements”. It should be approached as a matter of common sense, not as a matter of semantics.
[43]The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
[44]Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
[45]To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[46]Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
[47]Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
[48]Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders[68] or otherwise distort general sentencing practices in relation to particular offences.
[49]Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against “a sentence” it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the court “is of opinion that some other sentence ... is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor.”
[Footnotes omitted; emphasis added]
[68] This is no doubt a reference to the decision in Postiglione v The Queen (1996-1997) 189 CLR 295 in which such matters had been very much to the fore in discussion.
In the later decision of the High Court in Johnson v The Queen,[69] it was argued that there was a conflict between the statement of sentencing principle at [45] in Pearce v The Queen and the correct approach to the matter of totality of sentence as had been previously adumbrated by the High Court in Mill v The Queen.[70] In essence, the contention was that a requirement to first fix an appropriate sentence for each offence negated one of the options available to address the matter of totality referred to in Mill, namely the ability to reduce the length of sentences in addition to the options of full or partial concurrency of sentence. The court in Johnson comprehensively rejected that argument and confirmed that the usual or orthodox approach is by way of the doctrine of cumulative/concurrent sentencing. The court also confirmed that, provided the Judge has regard to the considerations militating in favour of concurrency, it is not incorrect to address those considerations other than by way of wholly or partially concurrent sentences. Thus Gleeson CJ referred to the discussion by Wells J in Attorney General v Tichy[71] of considerations militating in favour of (and against) concurrency of sentences, including his Honour’s reference to a “multi-faceted course of criminal conduct” and stated:[72]
[5]It may be added that the Crimes Act 1914 (Cth), in s 19, allows for sentences that are partly cumulative, and partly concurrent. And, as was observed in Mill, a sentencing judge, in a suitable case, may respond to considerations of the kind discussed by Wells J by lowering individual sentences rather than by making sentences wholly or partly concurrent. Ultimately, justice requires due consideration of whether, and to what extent, the appellant “was truly engaged upon one multi-faceted course of criminal conduct”, and whether the sentences imposed properly reflected the outcome of that consideration.
[69] (2004) 205 ALR 346.
[70] (1988) 166 CLR 59.
[71] (1982) 30 SASR 84, 92-93 (discussed above).
[72] (2004) 205 ALR 346, 348.
Similarly, the plurality of Gummow, Callinan and Heydon JJ stated:[73]
[26]The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce.
[73] (2004) 205 ALR 346, 356.
And Kirby J stated:[74]
[45]Had the course described in Pearce been taken by the sentencing judge in the present case it would have demonstrated the common elements in the two offences to which the appellant had pleaded guilty. That fact would either have suggested (as I would have been inclined to favour) that the sentences should have been structured to be served concurrently because parts of the criminal enterprise were common to the offences with which the appellant was convicted. Or, at the very least, if cumulative sentences were ordered, it would have ensured that a proper, that is, substantial, allowance was made to reflect the common factual features of the two offences.
[74] (2004) 205 ALR 346, 360.
Apart from this discussion in Johnson, the sentencing principle at [45] in Pearce does not appear to have been further discussed by the High Court.
PART C: THE OBLIGATION TO ADDRESS CONCURRENCY
The central statement of principle at [45] in Pearce v The Queen[75] is as stated above:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[75] (1998) 194 CLR 610.
This statement might be interpreted in (at least) three ways.
The first interpretation is that, since the statement was formulated in the context of a decision concerned with multiple charges that expressly contained a common element, the statement only applies to that factual situation. I reject that interpretation. The plurality judgment makes it plain that it first addresses “double prosecution” (as distinct from “double punishment”) and rejects the appellant’s objections to the charging or prosecution process. It is only after doing so that the judgment considers the alternative complaint relating to sentencing principle. The plurality judgment is concerned to formulate a sentencing principle that is broader than the principle which applies to the charging or prosecution process. Such broad sentencing principle is to the effect that there should be no double punishment in any case where there is an overlapping of the facts to be punished.[76] The clear words of the statement of principle plainly apply to all situations where double punishment may occur irrespective of whether an overlap is, or is not, expressly stated on the face of the particular charges.
[76] See the “Double punishment” section of the judgment in Pearce v The Queen (1998) 194 CLR 610, 621-623. See also R v Hoar (1981) 148 CLR 32, 38, where Gibbs CJ, Mason, Aickin and Brennan JJ stated that there is “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”. This approach to “Double punishment” is to be contrasted to the rather different approach to be taken to an objection to the charge itself as considered in Pearce v The Queen in the section “Double prosecution” at 615-621.

McHugh J delivered a separate judgment concurring in the result and confirming his Honour’s views in favour of the “instinctive synthesis” approach. Nothing in his Honour’s judgment suggests that he considered that there was any inconsistency between those views and the passage in Pearce v The Queen that has been referred to.
In R v Caplikas,[146] a decision handed down shortly after R v Place, Perry J (with whom Williams J concurred) in applying the approach endorsed in R v Place, concluded that the “two-stage”/“instinctive synthesis” debate had very little to do with the question of sentencing for multiple offences. In what is an important passage, his Honour stated:
[20]Neither the so-called instinctive synthesis process nor the two-stage process in sentencing specifically relate to the task confronting a sentencing judge when called upon to sentence for multiple offences. Other considerations bear more particularly upon that situation, namely the circumstances in which it is appropriate for sentences to be made concurrent or cumulative, the principle of totality, as it is sometimes called, and the power more recently given to the courts pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 to fix a single penalty where a person is found guilty of a number of offences.
(Emphasis added)
[146] [2002] SASC 258.
PART F: THE DISPOSITION OF THIS APPEAL
In the present case, the majority refer to the decision of the Court of Criminal Appeal in R v Place[147] and in their last reference to that decision state:
The approach referred to by the Full Court in Place, whereby once an overall sentence has been arrived at the sentencing judge should step back and consider whether the sentence, in all the circumstances, is crushing is the approach that should be adopted. This should occur in circumstances where s 18A is used.
The judge in the present proceeding gave express consideration to the principle of totality. He considered the offending and the offender and was of the view that the sentence for this offending by the defendant was not crushing. In our view, the judge was correct.
[147] (2002) 81 SASR 395.
As stated above, the general rule is that a person convicted of multiple offences is entitled to a correct application of the principles of cumulation and concurrency of sentencing; in a particular case, the application of these principles may powerfully indicate that a full or partial order for concurrency of sentences is called for. In addition (rather than in substitution), such offenders are also entitled to “a last look” by the Judge at the final proposed sentencing package and an answer by him or her to the question: “Is it too much?”
In the above passage, the majority refer to a question as to whether the sentence is “crushing”. In some cases it may be decided that a sentence should be reduced on totality principles because of a conclusion that a particular sentence is “crushing”, most usually in cases where one is considering a truly lengthy sentence, often in the context of an aging person. However, totality principles are not restricted to such cases and a totality test is not to be replaced by a “crushing” test. But, of more importance in the present case, the usual “cumulative/concurrency” test is not to be replaced by a “crushing” test and, with respect to the majority, it seems to me that that is the ultimate effect of the approach that their Honours suggest in the present case.
The significance of the difference between the approach I suggest as orthodox and the approach suggested by the majority in the present case becomes clearest when one considers the matter in the context of an appeal. At the risk of over-simplifying the matter, for an appeal to be allowed on a totality approach (and certainly on a “crushing” approach) it will in practice require a demonstration of a substantial difference in sentence between that imposed by the sentencing Judge and that which is thought to be appropriate by the appeal court before the exercise of the broad discretion of the Judge will be interfered with. However, if it can be demonstrated that the Judge failed to apply, or have proper regard to, concurrency principles, the appellant will be entitled to a re-sentencing by the appeal court because of that error of approach.
I would add in relation to the majority judgment’s reference to R v Place[148] that the court in Place was of the view that the six armed robberies, although committed over a relatively short period of time (between two and three weeks), were separate excursions into crime. With respect, that was an entirely justifiable and conventional approach to take. Having thus decided to adopt a cumulative sentencing approach, their Honours assessed the notional sentence for each robbery at five and a half years, to be reduced to three years and ten months for contrition, assisting the police[149] and the plea of guilty. This gave rise to a notional total of 23 years which was further reduced by reference to totality considerations to 12 years, with a final reduction to 11½ years to allow for time already served. Thus in that case it was the considered view of the court that six separate armed robberies of vulnerable victims[150] with a firearm[151] (together with a further three offences of illegal use and two further offences of threatening with a firearm[152] relating to the forcible theft of two motor vehicles used in the robberies together with four further offences of failing to comply with a bail agreement) warranted a total of 12 years imprisonment (with a non-parole period of six years). The present appellant has received a head sentence approaching that given to Mr Place (ten years and with a longer non-parole period of eight years) for a group of offences all of which literally occurred within a few minutes of each other.
[148] (2002) 81 SASR 395.
[149] The appellant was arrested after the last of the robberies and confessed to all of them. It was unlikely that his involvement in at least some of the robberies would otherwise have been discovered.
[150] Three liquor stores, two service stations and a small retail shop.
[151] I note that the gun was an imitation, but the victims were threatened by it and were not to believe other than it was genuine.
[152] In all at least eight persons were threatened with a gun – on the assumption, which is likely to be incorrect, that each robbery involved only one victim.
I turn now to the appellant’s contention that a comparison of the result reached in cases such as Place with the result in the present case is indicative of inadequate attention here being paid to the matter of partial concurrency.
The application of the principles of concurrency to the present case
Thomas, Principles of Sentencing notes that while it is difficult to generalize, “(s)imultaneous assaults on a number of different people in the course of the same fracas are likely to be treated as a single transaction”.[153]
[153] DA Thomas, Principles of Sentencing, (Heinemann Educational Books Ltd, 2^nd ed, 1979) 55.
In 1967 in Hayes v The Queen[154] the High Court dealt with a man charged with some twenty-three serious offences committed during the course of one night when he was heavily intoxicated. Three of the charges had been made the subject of cumulative sentences and the appeal centred on the propriety of the accumulation of those sentences. Barwick CJ, Taylor and Owen JJ summarised the facts as follows:[155]
The applicant, a young man who at the material time was serving in Australia as a member of the Royal Air Force and was stationed near Darwin, seeks leave to appeal against sentences imposed upon him following upon his conviction on indictment before the Supreme Court of the Northern Territory of a number of offences. …
The indictment against the applicant contained no less than twenty-three counts containing charges for offences which ranged from shooting with intent to murder down to maliciously damaging property, all of them arising out of an incident or series of incidents occurring during a brief period of time on the night of 25th February 1967 when the applicant, inflamed by liquor and having had an argument over the telephone with a girl in the naval service to whom he had earlier been engaged, armed himself with a .22 calibre rifle, drove to a naval establishment near Darwin where the girl was stationed and there fired a number of shots when police officers and others sought to arrest him. The jury convicted him upon five of the counts in the indictment and acquitted him on the remainder but we are concerned only with the sentences which were imposed on the second, the tenth and the twentieth counts. The second count charged the applicant with maliciously shooting at a police officer named Alexander with intent to resist arrest and for this offence the maximum sentence is imprisonment for life. On this count he was sentenced to imprisonment for two years to be cumulative upon the sentence imposed upon the tenth count. That count was for maliciously shooting at one Maley, another police officer, with intent to do grievous bodily harm, the maximum sentence for which is life imprisonment and upon this charge he was sentenced to three years imprisonment. The twentieth count charged a common assault upon a man named Duncan, the assault consisting of the firing of a shot in the general direction of the latter for the purpose of frightening him. The maximum sentence for the offence is imprisonment for one year and that maximum sentence was imposed, the sentence to be cumulative upon the sentence of two years imprisonment imposed on the second count.
[154] (1967) 116 CLR 459.
[155] (1967) 116 CLR 459, 460-461.
Their Honours first considered the appellant’s submission that on correct construction, the legislation applicable to the appellant’s case had the effect that no more than two cumulative sentences could be passed for felonies.[156] Their Honours accepted that legal submission and decided that the three cumulative sentences, as a matter of law, had to be reduced to two. Their Honours then turned to the matter more relevant to the present case, namely the further submissions that those remaining two cumulative sentences (counts 2 and 10) should, on a proper exercise of the sentencing discretion, also be ordered to run concurrently as between themselves, primarily[157] because the events all stemmed from a common cause. Their Honours stated:[158]
Counsel for the applicant then submitted that the sentences of three years imprisonment and two years imprisonment were, in all the circumstances, excessive and that we should substitute sentences for some lesser term. He emphasized the fact that the learned judge had been strongly impressed by evidence given by one of the applicant’s officers in support of a plea for leniency and by the fact that the applicant was only serving temporarily in Australia and that a lengthy prison sentence here would bear more severely upon him than if it were to be served in the country where his parents live. He also submitted that all the offences had been committed in the course of what might be regarded as one occurrence and that this occurrence had resulted from the fact that the applicant, by reason of the drink that he had taken and his anger caused by what had been said to him on the telephone by a girl whom he apparently regarded as having discarded him for another man, had lost his normal self control. The applicant was not, he submitted, a man of criminal instincts.
We thought that the arguments put by counsel were weighty and, after much deliberation, we have reached the conclusion that it would be proper to make some variation in the order made by the learned trial judge. We therefore grant the application for leave to appeal, set aside the direction that the sentence of two years imprisonment should commence at the expiration of the term of imprisonment for three years and the direction that the sentence of one year’s imprisonment should commence at the expiration of the sentence of two years and, instead, direct that all three sentences be served concurrently.
(Emphasis added)
[156] This was formerly an important matter and the subject of a substantial body of case law. However, in South Australia s31 Sentencing Act now provides that, as a matter of law, any number of cumulative sentences may be imposed.
[157] There was an additional consideration that the appellant would be serving his sentence in a country other than where his parents lived, but clearly the common cause aspect was the major consideration.
[158] (1967) 116 CLR 459, 463-464.
It is interesting to compare this case with that of Attorney General v Tichy[159] discussed above. Superficially, there is some similarity in that both offenders were relatively young males who ran amok with a .22 calibre repeating rifle, firing shots at a number of police officers; indeed, it would seem that the objective conduct in Hayes was more serious than that in Tichy in this regard.
[159] (1982) 30 SASR 84, 92-93.
But the essential difference between the cases was that the armed robbery by Tichy had been the subject of careful planning for some time whereas Hayes had not set out on a deliberate criminal enterprise. Of great present relevance, their Honours accepted that there was an overarching external factor operating on the whole of the appellant’s conduct that night, the loss of his self control engendered by his telephone conversation with his former girlfriend. This factor did not justify his conduct but it did show that there was something of a common causal factor associated with all of it.
Kirby J alluded to the same principle when he stated in the later case of Ryan v The Queen:[160]
[127]A conventional way of avoiding excess of punishment and of reflecting overall criminality, where a number of criminal acts are seen as connected in a relevant way, is to provide that the sentences imposed should be served (in whole or part) concurrently rather than cumulatively. Such orders may be reviewed on appeal. Where strong common elements linking criminal acts are accepted, it can sometimes be an error of principle, in determining punishment, to ignore that fact or to give undue weight to the separate acts involved. Although this well-established judicial practice (sometimes now regulated by legislation) is not exactly analogous to the consideration I have mentioned, there are certain similarities of principle. Each views the individual offences in their context, by reference to relevant linkages. That context and those linkages are not confined to temporal ones. …
(Emphasis added; footnotes omitted
[160] (2001) 206 CLR 267, 304-305.
The facts in the present case
On the same day that judgment was reserved in the present case, judgment was also reserved in the case of R v Singh[161] in which the appeal has subsequently been allowed. I will briefly refer to some factual similarities (as well as dissimilarities) between Singh and the present case.
[161] (2011) SASCFC 128.
In Singh, the appellant had been travelling at the speed of approximately 111 to 119 kilometres per hour in a 60kilometres per hour zone just prior to the impact which occurred after some braking and when he was still travelling at between 86 and 96 kilometres per hour. The reason that he was travelling at such a speed was that he had been racing with another vehicle which had only shortly before the impact disengaged from that race.
In the present case, the evidence was that the appellant was travelling immediately before the collision at a speed “between” 100 and 117 kilometres per hour, also in a 60kilometres per hour zone. The appellant’s reason for speeding stated to police (which was not said to be other than genuine) was that he was late for a medical appointment.
The present appellant was charged with a circumstance of aggravation, namely that his driving was in breach of s 45A Road Traffic Act 1961. That provision provides:
A person who drives a vehicle at a speed exceeding, by 45 kilometres an hour or more, a speed limit that applies under this Act or the Motor Vehicles Act 1959 is guilty of an offence.
As counsel for the DPP acknowledged on the hearing of the appeal, given that the forensic evidence was limited to proof that the appellant was travelling immediately before the collision at a speed “between”, or in the range of, 100 and 117 kilometres per hour, it would not have been possible to prove an actual speed of 105 kilometres per hour. However, despite that difficulty that the DPP had, the appellant nevertheless elected to plead guilty to the charge including this averment of aggravation of a speed of 105 kilometres per hour. The plea was tendered on the basis that the appellant acknowledged a speed exceeding the speed limit of 60 kilometres per hour by 45 kilometres per hour but, as his counsel stated on submissions before the sentencing Judge, the appellant’s speed should not be taken to exceed 105 kilometres per hour.
Both the driving in Singh and in the present case are appalling. The maximum penalty in the present case became life imprisonment because the DPP chose to charge the circumstance of aggravation and the appellant chose to plead to it. However, it can hardly be said that, by itself, the driving of the present appellant was worse than that in Singh. As to the results of such driving, the effect was again appalling in both cases. In the present case, serious injuries were caused to the victim Mr Clements and there will be permanent damage. But in Singh, one person was actually killed and another was injured in a comparable way to Mr Clements in the present case, Singh being charged with two driving offences rather than one.
It would seem that any disparity in sentencing between the two cases which is adverse to the present appellant must primarily be justified by reference to the respective antecedents and conduct following the accident.
As to the appellants’ respective antecedents, there is no question that Singh’s were good and that the present appellant’s are bad. But, as is axiomatic, while this will markedly reduce the ambit of leniency available to the present appellant (and thereby practically lead to a shorter sentence for Mr Singh), the present appellant is not to be sentenced on his past record.
It is the bad conduct of the present appellant after the accident that really goes to the heart of this appeal. However, the argument presented on behalf of the appellant is that he is nevertheless entitled to a correct application of the concurrency principles to his case.
The primary argument advanced is that all notional sentences for his offending (including the driving charge) should be concurrent. The secondary argument, is that the notional sentences for his offending after the accident should be concurrent (or partially concurrent) as between themselves but cumulative upon the sentence for the driving charge.
I reject the appellant’s primary argument. While I think, in common with King CJ in Attorney General v Tichy,[162] that the connection between the crimes was sufficient to justify the imposition of concurrent sentences, the imposition of some degree of accumulation was also consonant with principle. However, turning to the appellant’s secondary argument, I consider that it is correct to the extent of requiring a substantial measure of partial concurrency as between the sentences for the assaults.
[162] (1982) 30 SASR 84, 92-93.
The period of time over which the assaults referred to in counts 2, 3, 4 and 5 occurred was very short. It may be estimated reasonably accurately as a period of about ten minutes, such period commencing with the first assault (count 2) occurring shortly after the accident which occurred at “about” 6pm.[163]
[163] Mr Postigo (the victim of the assault in count 4) resided in a house near the accident scene. At about 6pm he heard the crash, went outside to investigate, and then ran back to his house to get his camera. He then returned to the accident scene. It was after this that he witnessed the appellant carry out the first assault on Mr Clements while he was still in his car (count 2). Mr Postigo was very shortly thereafter himself assaulted by the appellant and rendered unconscious (count 4). The other assaults (counts 3 and 5) occurred shortly thereafter. One might allot a time of about 6.05pm to the first assault on the basis of the above. However, it was probably somewhat later than that because Mr Clarke, who was the first ambulance officer on the scene and arrived at 6.13pm, appears to have arrived just after the first assault (the first assault on Clements, the subject of count 2) since he does not refer to that assault but did see the subsequent assault on Mr Postigo (count 4) which occurred very soon after the first assault on Mr Clements (count 2). That would put the time of the very first assault closer to Mr Clarke’s time of arrival at 6.13pm Ms Martin, also an ambulance officer, later separately arrived at about 6.23pm. By this time, all of the assaults in counts 2, 3, 4 and 5 had already previously occurred and police were in the process of struggling with the appellant. (As confirmation of the latter aspect, in the police communications log, there are entries timed at 6.23pm “Has patrol away with him now” and at 6.27pm “ml (male) been sprayed”.) A period from no earlier than say 6.05pm to say 6.20pm would indicate a period of 15 minutes as a maximum rather than minimum time period for the commission of all of the assaults, with a better estimate in my view being a period of about 10 minutes.

As for the conduct itself, I have said that it was appalling and there is no point in adding vituperative epithets to emphasise the matter. However, I make two observations. The first is that the appellant is charged with separate criminal charges dealing with that conduct and he is not to be doubly punished for it. The second is that one must closely consider the appellant’s conduct not just for the purpose of condemnation, but also to see what, if anything, it might disclose at a slightly different level. In many a case of homicide, the method of killing is also appalling and cases in which literally dozens of serious wounds with a knife are inflicted on the dead or dying victim are well known. Sometimes that very pattern may point to completely irrational conduct and loss of self control in circumstances where a killing by a rationally thinking murderer would have been effectuated by one wound only.
In the present case, any person in the position of the appellant who was thinking rationally after the accident, would have reasoned that he was sure to be blamed for the accident due to his speed, that the police were on the way, and that the very worst thing he could do would be to be less than overtly sympathetic to the victim. By contrast, the appellant performed a most bizarre series of acts which would inevitably draw to himself the most unfavourable attention possible, a course which obviously would lead to no gain, huge loss and inevitable apprehension and condign punishment.
It is clear that the appellant, to do what he did after the accident, must have entirely lost control and have been behaving quite irrationally. If this be so, whatever it was that caused that loss of control applied equally to each of the assaults. Presumably, this common factor was the occurrence of the accident and, more particularly, the damage to his own car. Of course, this is not to say that the appellant’s conduct was in any justified; it was entirely unjustified. But it does appear that the sequential assaults that occurred over a period of a few minutes had much in common, bound together by the same loss of control which had arisen only moments before.
The Judge’s sentencing remarks
His Honour never referred, expressly or impliedly, to the principles of cumulative and concurrent sentences. He did not refer to the fact that the assault offences took place over a very short period of time, that they were similar in their execution and that their common feature was the appellant’s irrational loss of control following the accident and damage to his car. His Honour stated:
I move to sentence. I will impose one prison sentence for all five offences but, before I do that, I will indicate a notional sentence for each offence to explain how I have arrived at the total starting point. I will then make an allowance for your guilty pleas. Finally, I will review the sentence to see if any allowance should be made by reason of the totality of the sentence. I will refer to the counts in the order that they appear on the information.
His Honour thus eschewed any consideration of concurrency and indicates an intention to review the total sentence by reference to a totality inquiry. However, his Honour later stated that he made no deduction for totality:
These sentences would all have to be served cumulatively, that is, on top of each other. Those notional sentences add up to 12 years imprisonment. But for your guilty pleas, I would have imposed a single sentence of 12 years imprisonment. …
I would reduce the head sentence from 12 years to 10 years by reason of the guilty pleas. As lengthy as 10 years appears for these offences, I do not think that any adjustment for the totality of the sentence is called for. I do not regard anything less than 10 years as appropriate for this outrageous course of conduct.
This is therefore a case where it is clear that a deduction in relation to currency has not been made under the different rubric of “totality”. His Honour has failed both to consider the matter of concurrency of sentence and to take the matter into account when pronouncing sentence. Having regard to the authorities to which I have referred above, his Honour has erred as a matter of sentencing principle. I would therefore re-sentence the appellant.
Re–Sentencing
As to count 1, the charge of cause harm by dangerous driving, I agree that this is a bad case but I also have regard to the decision in R v Singh referred to above and the pattern of sentencing for other similar cases discussed therein. A notional sentence of five and a half years is a good deal longer than that imposed on appeal in Singh but it is not inappropriate in the present case provided that it is taken to encompass all elements of the appellant’s bad behaviour, including at the accident scene, except for the particular and specific conduct charged in counts 2 to 5.
As to count 2 (assault upon the driver while still in his car), the maximum penalty is two years imprisonment. I would assess a notional term of imprisonment of one year nine months rather than the two years fixed by his Honour.
As to count 3 (assault upon the bystander with the fire extinguisher), the maximum penalty is again two years imprisonment. The assault was a kick. I would assess a notional term of imprisonment of ten months rather than the one year period fixed by his Honour.
As to count 4 (assault causing harm upon the bystander with the camera), the maximum penalty is three years imprisonment. The assault was very serious causing a broken collar bone and loss of consciousness. I would assess a notional term of imprisonment of two years, rather higher than the one year two month period fixed by his Honour.[164]
[164] It was decided in R v Capalbo [2005] SASC 47 that an appeal against a sentence passed pursuant to s 18A is an appeal against one sentence only and if the Court considers that one notional aspect of that sentence was excessive, the Court is free to justify the total sentence by reference to a commensurate increase in a different component if it thinks fit. Thus White J (with whom Doyle CJ and Besanko JJ concurred) stated (at [60]): Section 353(5) does not preclude the Court from determining that some of the notional individual sentences were too low and taking that into account in determining the appropriateness of the single sentence, or if it is adjusting the sentence, using notional sentences which are higher than those used by the sentencing judge.
As to count 5 (aggravated assault upon the driver while on the stretcher), the maximum penalty is three years imprisonment. The assault was very serious in that his vulnerability was plain. I would assess a notional term of imprisonment of two years, rather than the two year four month period fixed by his Honour.
The total notional period of imprisonment for the assault charges, if concurrency were to be ignored, would therefore be six years seven months. However, for all of the reasons given above, I consider that there should be partial concurrency of sentence as between the assault charges themselves.
It is at this point, in my view, that s 18A Sentencing Act has a very useful part to play. Having decided that a measure of concurrency is appropriate, it is now no longer necessary to decide which sentence to make concurrent with which, or to order different starting dates so as to achieve the desired degree of concurrency. Thus in the present case, having assessed the notional sentences and the appropriate degree of concurrency, I will implement that decision through the medium of imposing one sentence pursuant to s 18A Sentencing Act.
I consider that the assault charges should be concurrent as between themselves to the extent that the notional period of imprisonment for all of the assault charges should be four years. That period should be cumulative upon the notional sentence of five and a half years for the driving offence. I would therefore assess a notional total sentence of nine years six months and I would reduce that period to eight years by reason of the guilty pleas. In my view, there is no need to make any further deduction under a totality principle.
Accordingly, I would impose one sentence of eight years imprisonment pursuant to s 18A Sentencing Act. I would fix a non-parole period of six years four months. Both the sentence and the non-parole period should commence as from 20 July 2011, the day to which his Honour backdated the original sentence.
As to the licence disqualification, if I had been sentencing at first instance I would have disqualified the appellant from driving for a longer period than the minimum ten years having regard to the factors referred to by the majority in the present case. However, the driving disqualification period imposed by his Honour was a period of ten years and this was not, of course, a component of the s 18A sentence. It seems to me that there is no power to fix a higher period of licence disqualification on a defendant’s appeal in the absence of a prosecution appeal as to the disqualification order. Accordingly, I would reluctantly let the driving disqualification imposed by his Honour stand.