R v Bartel - [2008] SASC 289

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARTEL
[2008] SASC 289
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
31 October 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - defendant pleaded guilty in the District Court to three counts of aggravated armed robbery - sentencing Judge exercised his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence with respect to the three offences of 16 years' imprisonment with a non-parole period of 10 years - Director of Public Prosecutions conceded that the Judge erred in applying the totality principle and considering whether the sentence was too crushing at the wrong stage of the sentencing process - whether a different sentence should have been imposed.
Held: appeal allowed - sentence imposed was manifestly excessive - sentence imposed by District Court set aside - defendant sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years - observations on "instinctive synthesis" approach.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Randall-Smith and Davi (2008) 100 SASR 326; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395; R v Khim [2002] SASC 343; Markarian v The Queen (2005) 228 CLR 357; AB v The Queen (1999) 198 CLR 111; R v Young [1990] VR 951; Wong v The Queen (2001) 207 CLR 584; R v Nylander (2003) 228 LSJS 24, considered.

R v BARTEL
[2008] SASC 289
Court of Criminal Appeal Gray, Sulan and David JJ
THE COURT

This is an appeal against sentence.
On 18 February 2008, Glenn James Bartel, the defendant and appellant, pleaded guilty in the District Court to three counts of aggravated armed robbery committed on 12, 22 and 24 January 2007.
The sentencing Judge exercised his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence with respect to the three offences. The Judge imposed a total sentence of imprisonment of 16 years and fixed a non-parole period of 10 years. The Judge directed that the sentence commence on 7 March 2007, the date on which the defendant was taken into custody.
The motive with respect to each of the offences was the need to obtain money to meet a debt owed to a drug dealer. Apparently the defendant had developed a substantial amphetamine addiction over a lengthy period of time. It was said that the drug dealer had a reputation for aggression and that the mounting pressure with respect to the repayment of the debt led to the present offending.
The first two robberies took place at Subway Restaurants and involved a demand for money associated with a threat from a firearm. The third offence involved the same modus operandi at a food store. The sentencing Judge in his remarks noted the seriousness of the crimes, observing:
These armed robberies were extremely frightening to those involved and have had long lasting consequences. Threatening to shoot people is particularly frightening and particularly serious.
The offending called for a lengthy immediate custodial sentence.
The defendant at the time of sentencing was aged 31 years. He had a lengthy list of criminal antecedents including motor vehicle related offending, dishonesty offending and drug offending. In 1997 he was sentenced to a suspended term of imprisonment for the offence of break and enter and in 1998 a suspended term of imprisonment for arson. His antecedents did not include offences involving violence.
The defendant’s personal history suggested a highly disturbed and abused childhood. He had little education. It was accepted that the defendant was in need of psychological assistance to cope with his background and everyday pressures of life. To his credit he expressed a level of contrition and remorse. However, as the Director pointed out on the appeal, there was evidence to suggest that at times he was not truly contrite. It was further pointed out that the pleas of guilty were not made until the eve of the trial. He had taken steps to overcome his drug addiction and had applied to attend courses relating to victims of crime. He continued to have family support.
On the hearing of the appeal, the Director acknowledged that error in the sentencing process had been identified. The defendant drew attention to the sentencing remarks and in particular the following:
These are serious offences calling for strong deterrent [penalties]. As they were committed over the one relatively short period and for the same underlying purpose, one penalty is appropriate.
In all the circumstances, having in mind the principle of totality which serves to ensure a total sentence is not too crushing, a nominal head sentence of 18 years is called for. That will be reduced to 16 years on account of the time you spent in custody before 7 March 2007, your pleas of guilty, and, to a small extent, the assistance you gave to the police.
When it comes to the appropriate non-parole period, the considerations personal to you have more influence. You seem to have acknowledged how serious these offences were and have some appreciation of the profound effect they have had on the innocent people caught up in them. As mentioned, you have sought help for your drug problems and are taking medication to manage your situation.
In all the circumstances a non-parole period of 10 years is set. Given your record, and the seriousness of the robberies, suspension is plainly out of the question.
It was pointed out that the sentencing Judge brought to account the principle of totality in an effort to ensure that the nominal head sentence of 18 years was not too crushing.
The question about the appropriate time to apply the totality principle was reviewed by this Court in Randall-Smith and Davi,[1] where Gray and Layton JJ undertook an extensive review of the relevant authorities concerning the application of the totality principle. It is convenient to repeat in this judgment their observations:[2]
[1]    R v Randall-Smith and Davi (2008) 100 SASR 326.
[2]    R v Randall-Smith and Davi (2008) 100 SASR 326 at [103]-[104].
The principle of totality has been expressed in Thomas[3] as follows:
[3]    Thomas, Principles of Sentencing (1979, 2nd ed) at 56.
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”.
The principle so expressed has been approved by the High Court in Mill[4] and Postiglione,[5] where McHugh J described the totality principle in the following terms:[6]
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Also in Postiglione, Kirby J described the principle of totality as “in the nature of checks”[7] to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. It was then that a sentencing judge must consider whether the resulting sentence needs further adjustment by reason of “parity” or “totality”.[8] It is also to be observed that Dawson and Gaudron JJ in Postiglione, cited the above passage from Thomas with approval.[9]
The Court also applied the observations of this Court in Place,[10] where it was relevantly observed:
In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
[4]    Mill v The Queen (1988) 166 CLR 59.
[5]    Postiglione v The Queen (1997) 189 CLR 295.
[6]    Postiglione v The Queen (1997) 189 CLR 295 at 307-309 (footnotes omitted).
[7]    Postiglione v The Queen (1997) 189 CLR 295 at 340.
[8]    Postiglione v The Queen (1997) 189 CLR 295 at 340-341.
[9]    Postiglione v The Queen (1997) 189 CLR 295 at 304.
[10] R v Place (2002) 81 SASR 395 at [87].
As earlier observed, it was conceded by the Director that error in the sentencing process had occurred. However, the Director submitted that, having regard to the terms of section 353(4) of the Criminal Law Consolidation Act1935 (SA), the appeal should be dismissed. That subsection provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)     quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
It is to be observed that the sentence of the District Court will be set aside if this Court considers that a different sentence should be imposed.
The Director sought to support his argument by reference to sentences imposed in other cases. This Court has spoken about the unhelpfulness of such comparisons as the circumstances of each case invariably differ.[11] However, it is relevant to point out that in Place[12] six offences of aggravated robbery led to a head sentence of 11 years and nine months. In Khim,[13] five offences of armed robbery led to a head sentence of 12 years and in Randall-Smith[14] six offences of aggravated robbery and one offence of attempted robbery led to a head sentence of 16 years. These three cases all involved the use of a weapon, a firearm in the case of Place[15] and Randall-Smith and Davi[16] and a samurai sword in the case of Khim.[17]
[11] R v O’Donnell (1974) 7 SASR 114 at 115 (Hogarth, Zelling and Wells JJ); R v Hitchens (1995) 184 LSJS 337 (Mullighan J); Marshall v Western Australia [2007] WASCA 96 at [100] (Miller AJA); Matulich v Police (2007) 252 LSJS 219 at [60]-[61].
[12] R v Place (2002) 81 SASR 395.
[13] R v Khim [2002] SASC 343.
[14] R v Randall-Smith and Davi (2008) 100 SASR 326.
[15] R v Place (2002) 81 SASR 395.
[16] R v Randall-Smith and Davi (2008) 100 SASR 326.
[17] R v Khim [2002] SASC 343.
The primary argument of the Director was that the defendant’s offending was extremely serious. The venues it was said were soft targets and the use of a firearm on each occasion was a serious matter of aggravation. It was pointed out that the firearms were aimed at members of staff with a threat to shoot. The Director drew attention to the observations in Place that a sentence of six to eight years might be expected for an armed robbery committed on vulnerable targets when factors of aggravation such as threatening violence with a firearm are present. It was then argued that a nominal starting point for a sentence in the present case was between 18 and 24 years on a simple multiplication of six to eight years for each of the three offences.
The approach advocated by the Director is contrary to the High Court decision in Markarian,[18] where Gleeson CJ, Gummow, Hayne and Callinan JJ confirmed that the proper approach to be taken to sentencing is the instinctive synthesis approach:
[18] Markarian v The Queen (2005) 228 CLR 357 at [39].
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
McHugh J reiterated his earlier views in support of the instinctive synthesis approach:[19]
[19] Markarian v The Queen (2005) 228 CLR 357 at [53]-[56].
In AB v The Queen,[20] 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?
[20] AB v The Queen (1999) 198 CLR 111 at 120-123 [13]-[19].
Moreover, by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing. Indeed, the judgment of the Court of Criminal Appeal in this case makes it clear that the Court thought that the issues of retribution and deterrence were the dominant issues in the case. Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process. Cognitive psychology has long emphasised the difficulty that the human mind has in giving correct weightings to each of a number of variables. In particular, people frequently fail to distinguish between the strength of evidence and its relative weight in determining the outcome or prediction. As Griffin and Tversky have pointed out:[21]
[21] “The Weighing of Evidence and the Determinants of Confidence”, Cognitive Psychology, vol 24 (1992) 411, at p 413.
The extensive experimental literature on judgment under uncertainty indicates that people do not combine strength and weight in accord with the rules of probability and statistics.
The tendency of the mind is to seize on one or two variables – usually those with which the decision-maker is most familiar or which seem most cogent – and give that variable or those variables undue weight. Overconfidence – but sometimes underconfidence – in the significance of factors or the accuracy of the assessment is very common. The tendency to err must increase when particular circumstances are selected as the starting point for the decision and further factors are allowed to modify the starting point.
One fact that critics of the instinctive synthesis approach do not face up to – assuming they are aware of it – is that the first tier of the two-tier approach – unless it is the maximum sentence – is itself derived by an instinctive synthesis of the “objective circumstances” of the case. Or on another view of the two-tier approach, the first-tier sentence is the product of a value judgment that is proportionate to the offence. But as the Victorian Court of Criminal Appeal said in R v Young:[22]
What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence ... Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?
(Emphasis in original.)
Analysing the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory. Whether the starting point is a sentence derived from the objective circumstances or a sentence proportionate to the offence, the correctness of the sentence always depends on the correctness of the value judgment involved in assessing the first-tier sentence. But even if the judge can correctly assess the first-tier sentence, the judge must still correctly assess the quantum of the increment or decrement for each factor in the process. ... As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen,[23] mathematical increments and decrements to some pre-determined notional sentence are “apt to give rise to error”.
[22] R v Young [1990] VR 951 at 960.
[23] Wong v The Queen (2001) 207 CLR 584 at 611 [74].
The approach advocated by the Director in our view is contrary to these observations in Markarian. It is not appropriate to select a benchmark, or hypothetical or notional, sentence for each offence and simply to add those to arrive at a total notional sentence. Such a process would lead to error at a very early stage in the determination of an appropriate sentence.

We agree with and adopt the following observations of Gray and Layton JJ in Randall-Smith:[24]
The subsequent addition by the Judge of the individual notional sentences to arrive at a starting point for a single sentence from which discounts for pleas, contrition and cooperation, and then further discounts for totality were made, created an air of unreality about the sentencing process. It was this type of process that led this Court, in Nylander,[25] to comment adversely on such an approach. Bleby J, with whom Prior and Sulan JJ agreed, having referred to the above observations in Symonds, commented: [26]
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.
[24] R v Randall-Smith and Davi (2008) 100 SASR 326.
[25] R v Nylander (2003) 228 LSJS 24.
[26] R v Nylander (2003) 228 LSJS 24 at [81]-[85].
Conclusion
It is the view of this Court that the sentence imposed was manifestly excessive. The failure to properly consider the application of the totality principle contributed to the excessive sentence. This Court considers that a different and lesser sentence should be imposed. Accordingly, this appeal should be allowed and the defendant re-sentenced.
There was no dispute about the circumstances of the offending, the defendant’s antecedents, the defendant’s contrition and remorse or the need for there to be an immediate custodial term of imprisonment. Having regard to all the relevant circumstances, this Court considers that a head sentence of 12 years with a non-parole period of nine years is an appropriate sentence having regard to the overall criminality of the defendant. In arriving at this sentence this Court considers it appropriate to exercise its powers under section 18A of the Criminal Law (Sentencing) Act to impose the one sentence for all offending. In arriving at the head sentence of 12 years, a reduction of two years has been made on account of the pleas of guilty, for assistance given to the police and the contrition and remorse displayed by the defendant. Having determined the head sentence of 12 years and a non-parole period of nine years the Court has stood back and considered, whether in all the circumstances, such a sentence is too crushing. The Court is of the view that the sentence is not too crushing having regard to the seriousness of the offending and the defendant’s antecedents.
At the time of sentencing for the aggravated robberies, the sentencing Judge also sentenced the defendant in respect of a breach of a good behaviour bond relating to motor vehicle offending. In that respect the Judge imposed a fine. There has been no appeal in respect of that order and that order is not the subject of any order of this Court.
This appeal is allowed. The sentence imposed by the District Court in respect of the three offences of aggravated armed robbery is set aside. The defendant is sentenced to the one sentence for the three offences. A sentence of imprisonment of 12 years is imposed, a non-parole period of nine years is fixed, the sentenced backdated to commence on 14 February 2007, having regard to the time that the defendant has spent in custody in relation to this offending.