R v Belczacki - [2012] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BELCZACKI
[2012] SASCFC 4
Judgment of The Court of Criminal Appeal
(The Honourable Justice David, The Honourable Justice Peek and The Honourable Justice Blue)
18 January 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to various offences committed over a 9 month period all associated with her drug addiction - offences divided into 4 categories - category 1 comprised offences of serious criminal trespass, theft, property damage and illegal interference with a motor vehicle – sentence of 8 years imprisonment (after credit for guilty pleas) imposed pursuant to s 18A Sentencing Act for the category 1 offending with other sentences of imprisonment for the offences in categories 2 to 4 to run concurrently with the 8 year sentence - non-parole period of 2 years 6 months fixed.
Appeal against severity of the 8 year sentence - whether the sentencing judge failed to consider concurrency or partial concurrency of sentence as between the offences comprising category 1 - whether the sentence was manifestly excessive.
Appeal allowed.
Held: (David J, in dissent):
The appeal should be dismissed - no error in the sentencing process was demonstrated – an omission by the sentencing judge to identify separate notional sentences does not amount to an error of law – the sentence was not manifestly excessive.
Held: (Peek J, Blue J concurring):
The appeal should be allowed. The sentencing Judge erred in failing to consider the matter of partial concurrency - a degree of partial concurrency as between the offences comprising category 1 is required - in any event, the sentence was manifestly excessive.
Upon re-sentencing - notional sentences for each offence considered- partial concurrency implemented reducing the total notional sentence to 8 years - further reduction to 6 years 4 months for guilty pleas - appellant re-sentenced pursuant to s 18A Sentencing Act to 6 years 4 months imprisonment - non-parole period of 2 years 6 months fixed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Major (1998) 70 SASR 488; Pearce v The Queen (1998) 194 CLR 610; R v LLK (2003) 231 LSJS 458; Dicker v Ashton (1974) 65 LSJS 150; R v Dorning (1981) 27 SASR 481; Attorney-General v Tichy (1982) 30 SASR 84; R v Blain (1984) 115 LSJS 270; R v Nixon (1993) 66 A Crim R 83; R v Skrjanc (1994) 71 A Crim R 347; R v Symonds [1999] SASC 217; R v Gale (1999) 74 SASR 235; R v Place (2002) 81 SASR 395; R v Capalbo [2005] SASC 47; R vMcNamara (2009) 105 SASR 38; R v Delphin (2001) 79 SASR 429; R v Richards [2006] SASC 60; Kells v Police [2007] SASC 224; R v Ravet [2011] SASCFC 67; R v Copeland (No 2) (2010) 108 SASR 398, considered.

R v BELCZACKI
[2012] SASCFC 4
Court of Criminal Appeal: David, Peek and Blue JJ

DAVID J: This is an appeal against sentence. The appellant committed offences over a period of four and a half months from June 2010 to October 2010. She pleaded guilty to all offences and was sentenced in the District Court pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) to a head sentence of imprisonment for eight years with a non‑parole period of two years and six months. The sentencing Judge refused an application to suspend the sentence. The sentencing Judge also imposed a licence disqualification of six months in relation to driving offences to which the appellant also pleaded guilty.
The appellant now argues that the head sentence was manifestly excessive and that the learned sentencing Judge did not give enough weight to her personal circumstances. The appellant also argues that, if this Court finds that the sentencing Judge had erred and that the sentence was manifestly excessive, on resentencing this Court should find there is good reason to suspend the fresh term of imprisonment that would be imposed.
It is to be noted that the appellant does not argue that, if the appeal fails, the sentencing Judge has erred in not suspending the sentence that he imposed.
The offending
It is convenient to group the offending into four distinct categories as the sentencing Judge did.
Category 1 – Trespass and theft offences
The Category 1 offences were:
·1 June 2010 – aggravated serious criminal trespass and associated theft and interference with motor vehicles in the early hours of the morning which involved the appellant breaking into the victims’ home while they were asleep inside and taking approximately $7,000 worth of property. The vehicles in the garage were interfered with.
·25 August 2010 – the offence of theft was committed on the basis that the appellant stole items from the residential premises of the victim and they were partly on sold to a second hand dealer pursuant to a false declaration which is the subject of an associated charge in Category 4.
·26 August 2010 – the appellant committed the offences of serious criminal trespass on a residence and theft when she broke into residential premises which was not occupied at the time and stole a large number of items.
·1 September 2010 – the appellant committed the offence of dishonestly making off without payment for petrol from a BP service station in Darlington.
·16 September 2010 – the appellant committed the offence of damaging property by damaging the front window and garage doors of a residential premises. The appellant was not charged with any trespass or theft offences in relation to that incident.
·20 September 2010 – the appellant committed the offence of illegal interference in that she broke into a vehicle which was parked in the victim’s driveway.
·30 September 2010 – the appellant committed the offence of aggravated serious criminal trespass when the residence was occupied and theft. On that occasion, the appellant broke into a residential premises and stole approximately $3,000 worth of property. That offence was aggravated by the fact that the two victims were home asleep inside the house, one of whom was a 92 year old woman, and the appellant was either aware of, or reckless about, their presence.
·14 October 2010 – the appellant committed the offences of serious criminal trespass in a residential area and theft. The victim in that case had returned home during the day to find the appellant inside her home in the process of stealing belongings. The appellant had entered the premises by smashing a rear window and the house was ransacked.
In summary, in relation to the Category 1 offending, over a period of four and a half months, the appellant encroached upon five separate residential premises; in two of those cases the offending was aggravated by the fact that the victims were present. In those two cases the maximum penalty was life imprisonment.
This offending was compounded by the acts of theft and illegal interference with motor vehicles, which were related to the acts of trespass.
Category 2 – Bail offences
During the course of the offending which was the subject of Category 1, the appellant was made the subject of a number of bail agreements and much of the offending was aggravated by that fact. The Category 2 offences were:
·Failing to comply with a bail agreement (13 counts);
·Damaging property (a home detention bracelet); and
·Aiding and abetting a breach of bail (two counts).
Category 3 – Driving whilst disqualified
The appellant was convicted of two counts of driving whilst disqualified.
Category 4 – Miscellaneous offences
During this period the appellant committed the further offences:
·Driving unauthorised (two counts);
·Providing false information to a second hand dealer (one count);
·Carrying an offensive weapon (one count); and
·Possessing methylamphetamine (one count).
Sentence
The sentencing Judge, in relation to the Category 1 offending, pursuant to s 18A of the Act imposed one sentence of imprisonment for eight years reduced from 10 years on account of her pleas of guilty.
In relation to the Category 2 offending, once again applying s 18A of the Act, the Judge imposed a single sentence of nine months’ imprisonment.
In relation to the Category 3 offending, using s 18A of the Act, the Judge imposed one penalty of three months’ imprisonment and imposed a six month licence disqualification on each count to be served concurrently.
In relation to the Category 4 offending, the Judge imposed a term of imprisonment of three months for possessing methylamphetamine, but on the other three charges in Category 4 he convicted without penalty.
All prison terms imposed for the Category 2, 3 and 4 offences were to run concurrently with each other and concurrently with the term of imprisonment imposed on the Category 1 offending.
Appellant’s personal particulars
At the time of sentencing, the appellant was 27 years of age and was one of three children. Whilst at home she was exposed to drugs, alcohol and violence and commenced illegal drug use at the age of 14. By the age of 15 she was addicted to methylamphetamine. She left school after Year 9. She formed a relationship at the age of 17, had her first child and, a few years later, a second child but broke up with the father of those children. She went to study at the Noarlunga TAFE and commenced a traineeship at Kaurna Business and Heritage Centre but she did not complete that course.
In 2008, the appellant moved to Middleton to assist with the caring of her grandfather who had serious medical problems. He died in April 2009 and the appellant found that whole period surrounding his death to be draining and distressing. She then moved back and lived with her mother in Reynella and, having been off drugs for a period time, recommenced taking illicit drugs. She also started consuming large amounts of alcohol.
In 2009, the appellant was in a car accident where she suffered a punctured lung and a severely fractured ankle which required lengthy rehabilitation. However, on discharge she continued to use alcohol and drugs.
The appellant inherited a considerable sum of money from her grandfather and, having moved out of her mother’s house, she unfortunately used much of the inheritance to escalate her drug taking. It appears as though the children were with her mother at the time. When the money ran out, the appellant commenced committing the crimes which are now before the Court to pay for her ongoing drug use. It was put to the sentencing Judge that she was under the influence of drugs whilst committing these offences.
The appellant became pregnant again and it was put to the sentencing Judge that she came to her senses and moved back with family members in about September 2010. She now has a third child as a result of that pregnancy. She has attended counselling sessions, a fact that was verified by a report from the Drug and Alcohol Services of South Australia, and she now has a prevention management plan to assist her to stay away from illicit drugs.
Although the appellant came before the sentencing Court with previous offending, it was not of a serious nature compared with the matters which are the subject of this appeal.
The Judge’s sentencing remarks
In approaching the difficult task of sentencing for numerous offences and calling in aid s 18A of the Act, the sentencing Judge said the following:
Were I to adopt starting points of imprisonment for the numerous offences you have committed, discount them for your plea, cumulate them and then modify that in accordance with all the appropriate sentencing principles, I would be mentioning figures to you for the next 15 minutes, which I fear would be ultimately unintelligible.
I have undergone that exercise but I feel it would be a complicated and unhelpful exercise to recount it to you. Suffice it to say that for each of the offences of aggravated serious criminal trespass in a place of residence, serious criminal trespass in a place of residence, and theft from residential houses, you could have expected several years of imprisonment in each case, which cumulatively would be significantly in excess of 10 years.
I apply the Criminal Law (Sentencing) Act principles, I take into account all the circumstances and I apply the principle of totality. I recognise that your sentence must reflect the overall criminality of your conduct, but also the need for it not to be crushing to you if that is avoidable.
As mentioned, in setting the following penalties I have taken into account your time in custody and on home detention.
For the offences of aggravated serious criminal trespass and theft in Mr and Mrs Patrilli’s home on 1 June 2010, theft from Ms Hardford’s house on 25 August 2010, serious criminal trespass in a place of residence and theft on 26 August 2010, stealing petrol from the BP service station at Darlington on 1 September 2010, damaging Mr Cochran’s house on 30 September 2010, and aggravated serious criminal trespass in Mr Tuck’s place of residence and theft on 30 September 2010, serious criminal trespass in Ms White’s place of residence and theft on 14 October 2010, and interfering with Ms Winter’s motor vehicle on 20 September 2010, I impose a single term of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act of 8 years reduced from 10 on account of your pleas of guilty. I will come back to the issue of non-parole period shortly.
I now deal with your breach of bail and related offences.
For the offences of aiding and abetting Mr Sundquist to breach his bail on 19 and 24 June 2010, breaching your bail on 27 August 2010 by being in the driver’s seat of a motor vehicle, breaching your bail on 4 September 2010 by not being home in breach of curfew, breaching your bail on 23 September and 30 September 2010 by driving and not being home, breaching your bail between 6 and 10 November 2010 by leaving your bail address without permission and causing damage to property by cutting off your home detention bracelet, and further breaching your bail on 21 January 2011 and 15 February 2011 by continuing to test positive for illegal drugs in contravention of your bail agreements, I impose a single sentence of 9 months imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act.
For the offences of driving disqualified on 22 July 2010 and driving disqualified on 1 August 2010 you will be convicted and pursuant to s 18A of the Criminal Law (Sentencing) Act be imprisoned for three months.
The penalty for your unauthorised driving on 24 August 2010 and 23 September 2010 is potentially a fine, but in all the circumstances I am not satisfied that you are able to pay a pecuniary penalty, accordingly you will be convicted without penalty on those two counts.
In relation to providing false details to a second-hand dealer on 27 August 2010, as I am satisfied that you are unable to pay a pecuniary penalty you will be convicted without penalty in relation to that matter.
In relation to carrying an offensive weapon on 27 August 2010, I accept the submissions made by your counsel that this was out of fear of your partner at the time and accordingly I convict you without penalty in relation to that matter.
Finally, in relation to the offence of possessing a controlled drug on 27 August 2010, it is plain from everything put that this was not an isolated event but represented part of your ongoing drug use. On that occasion there were five clear press-seal bags containing a total of 0.03 g of methylamphetamine. You are not to be penalised for any other uncharged acts but it does render unavailable any submission that that was an isolated event. You will be convicted and imprisoned for 3 months on the charge of possessing a controlled drug.
I order that each of those sentences be served concurrently, that is at the same time.
I turn to consider the appropriate non-parole period in relation to your 8 year head sentence.
Particularly in light of your drug addiction, the psychologist’s report and the other tendered materials, your three young children, and society’s interest in providing you with the strongest possible incentive to cease your involvement with drugs and crime and build on the albeit recent qualified positives in your life, a lengthy period of parole supervision is plainly desirable. For those reasons the court is prepared to impose an unusually short non-parole period of two years and six months.
In relation to each of your driving offences that require a period of licence disqualification in each case I impose a penalty of six months licence disqualification to be served concurrently.
I turn to consider whether there is good reason to suspend the sentences imposed. I have carefully considered all that has been put on your behalf and I have reconsidered it in this context.
In the final analysis regrettably your offending is far too serious when weighed against the matters put in your favour for there to be good reason to suspend. Accordingly the sentence will not be suspended.
The terms of imprisonment are concurrent, accordingly your nominal period in custody is 8 years from today but you will be eligible and likely to be released on parole in two and a half years.
Appeal
Mr Mead SC, counsel for the appellant, argues that the head sentence is manifestly excessive. He argues that, taking into account those matters personal to the appellant including her difficult background and the fact that she has three children, a starting point of 10 years is too high. Mr Mead concedes that he cannot point to a specific mistake in the sentencing process but argues that the overall head sentence does not take into account the dramatic change brought about by the disruption to the appellant’s life due to the death of her grandfather and the access to a large sum of money when she was still not cured of her drug addiction.
He also argues that the non-parole period of two and a half years being so disproportionate to the head sentence of eight years indicates error.
Mr Mead further argues that, if this Court finds there is such an error in the length of the head sentence, on resentencing this Court should consider carefully the question of whether there are proper grounds to suspend the sentence. He does not argue that the Judge erred in not suspending the sentence were he correct about the head sentence that he imposed.
It is to be noted from the Judge’s sentencing remarks that he has not adopted what has been referred to as an “arithmetical approach” so described by Sulan J in R v Ravet.[1] That approach involves setting notional sentences for each offence and discounting each sentence for the plea before adding them up and coming to a notional head sentence, then applying the principles of totality. The sentencing Judge in this case, although indicating that he had gone through that exercise himself, said it would be complicated and unhelpful to set it out.
[1] R v Ravet [2011] SASCFC 67 at [8].
The other approach to sentencing is not to identify separate notional head sentences for each offence as long as a proper explanation is given by the sentencing Judge. There appears to be a division in this Court as to what is the appropriate method. In R v Copeland (No 2),[2] Gray J approved of the latter approach whilst White and Kourakis JJ in that case favoured the former. However, the decision of this Court in Ravet held clearly that, if a sentencing Judge does not identify separate notional head sentences, that does not represent an error of law.[3]
[2] R v Copeland (No 2) (2010) 108 SASR 398.
[3] R v Ravet [2011] SASCFC 67 at [37]-[41].

In my view, the approach that the sentencing Judge took in this case was the correct one. The number of offences was so great over a short period of time that to notionally identify different head sentences and accumulate them would be unrealistic and indeed meaningless. The trial Judge looked at the whole course of offending very carefully, he looked at the seriousness of the matter bearing in mind that a number of the offences attracted maximum terms of life imprisonment and he carefully looked at those matters personal to the appellant. The fact that an offender is affected by drugs and has a drug problem can only be of limited weight in mitigating serious offending, especially where it is repeated and involves the invasion of people’s homes whilst they are occupied. In my view the learned sentencing Judge has not erred in applying a head sentence of 10 years reduced to eight years for the pleas of guilty. I also indicate that the non-parole period of two years and six months, rather than indicating an error in the setting of the head sentence, demonstrates a merciful approach by the sentencing Judge to reflect the personal circumstances of the appellant.
As there has been no error demonstrated in the sentence imposed, the question of suspension does not arise.
Conclusion
I would dismiss the appeal.
PEEK J. I would allow the appeal, set aside the sentence of eight years imprisonment imposed by the District Court Judge and re-sentence the appellant to an effective sentence of six years four months imprisonment with a non-parole period of two years six months.
Introduction
The appellant pleaded guilty to having committed a number of crimes over the period of nine months between 1 June 2010 and 15 February 2011. They comprised four categories of offences and were all, wholly or partly, associated with her drug addiction. I adopt David J’s recital of the facts and add some further detail.
The first category of offences: serious criminal trespass and theft offences
There were 12 offences in the first category of offences spanning a period of four and a half months from 1 June 2010 to 14 October 2010. Eight of those offences consisted of four pairs of offences (each pair comprising a serious criminal trespass charge plus a theft charge), being the pairs at David J’s first, third, seventh and eighth dot points. The 12 offences in the same order as David J’s dot points were as follows.
·1 June 2010, the place of residence of Ms P at Somerton Park. Pair of offences: aggravated serious criminal trespass plus a theft charge which involved $7,000 worth of property. (This is the only minor indictable charge of theft, with all of the others being summary charges involving substantially lower values, each being averred to be less than the cut-off point of $2,500.)
·25 August 2010, one summary charge of theft laid on the basis that the appellant was found selling goods that had previously been stolen from the home of victim H; it was the act of conversion by attempting to sell to a second-hand dealer, and not an act of taking from the house of H (which was not proven against the appellant), that constituted the theft. The value of the goods was not quantified but was averred to be less than $2,500. A further offence of making a false declaration to the second-hand dealer was the subject of a further charge (a fine being the maximum penalty) within category four.
·26 August 2010, the place of residence of Mr F at Noarlunga Downs. Pair of offences: serious criminal trespass plus a summary charge of theft. The value of the goods was not quantified, but averred to be less than $2,500.
·1 September 2010, a summary charge of theft of petrol of the value of $70.
·16 September 2010, the place of residence of Mr C. A summary charge of property damage, the damage was not quantified but was averred to be less than $2,500.
·20 September 2010, a summary charge of illegal interference with Ms W’s motor vehicle, no damage and nothing taken.
·30 September 2010, the place of residence of Mr T at Old Reynella. Pair of offences: aggravated serious criminal trespass plus a summary charge of theft, the value of the goods was averred to be less than $2,500.
·14 October 2010, place of residence of Ms W at Seaford. Pair of offences: serious criminal trespass plus a summary charge of theft of two bottles of wine, the value of the goods amount was not quantified, averred to be less than $2,500.
The sentencing Judge adopted a starting point of ten years and imposed one sentence of eight years imprisonment (after credit for the pleas of guilty) pursuant to s 18A Criminal Law (Sentencing) Act 1988 (hereafter Sentencing Act) for this first category of 12 offences. His Honour stated:
For the offences of aggravated serious criminal trespass and theft in Mr and Mrs P’s home on 1 June 2010, theft from Ms H’s house on 25 August 2010, serious criminal trespass in a place of residence and theft on 26 August 2010, stealing petrol from the BP service station at Darlington on 1 September 2010, damaging Mr C’s house on 30 September 2010, and aggravated serious criminal trespass in Mr T’s place of residence and theft on 30 September 2010, serious criminal trespass in Ms W’s place of residence and theft on 14 October 2010, and interfering with Ms W’s motor vehicle on 20 September 2010, I impose a single term of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act of eight years reduced from ten on account of your pleas of guilty. I will come back to the issue of non-parole period shortly.
The second, third and fourth categories of offences
His Honour then proceeded to sentence for the second, third and fourth categories of offences as set out by David J. These were relatively minor matters compared to the matters within category one above. The sentences were much lower and were all made concurrent with the eight year sentence imposed for the category one offending.
General approach to the appeal
The appeal, and the argument on appeal, was directed solely to the eight year head sentence for the category one offences and I will only address that eight year sentence.
Although his Honour adopted concurrent sentencing for the other categories, the matter of concurrency had an important part to play in relation to the first category of offences, and in two ways. First, concurrency within each of the four pairs of offences (serious criminal trespass plus a theft charge at David J’s first, third, seventh and eighth dot points). Second, partial concurrency generally as between the offences comprising category one.
Before considering his Honour’s approach, I will address the matter of concurrency of sentencing.
Concurrency of sentence generally
Thomas, Principles of Sentencing refers to the core principle of concurrency of sentence as the “one-transaction rule” and states:[4]
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.
[4] DA Thomas, Principles of Sentencing, (Heniemann Educational Books Ltd, 2^nd ed, 1979) 53.
This core principle has long been recognised in Australia. In 1974 in Dicker v Ashton, Wells J stated:[5]
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.
[5] (1974) 65 LSJS 150, 151.
In R v Dorning Walters, Zelling and Williams JJ identified the same principle stating:[6]
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.
[6] (1981) 27 SASR 481, 482.
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 the approach is by reference to proximity to, or distance away from, a postulated core principle. A passage from the judgment of Wells J in Attorney General v Tichy is often referred to in this context and is as follows:[7]
… 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. …
[7] (1982) 30 SASR 84, 92-93.
The matter is further complicated by the fact that in the case of multiple offending such as the present, the courts have traditionally travelled further from the core principle and more widely used the device of partial concurrency so as to “reach a total punishment which is the proper punishment”.
The judgment of King CJ in R v Blain[8] (from which the emphasised words immediately above are taken) is a good example of this sentencing approach. That case involved an appellant who admitted the commission of 18 offences of housebreaking and larceny over a period of eight to nine months. A sentence of seven years was not disturbed. In a passage of general relevance, his Honour stated:[9]
[G]enerally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed both by the charges in the information and the matters asked to be taken into account. I do not say that is the only way in which it can be done, but it seems to me that it is the most appropriate way.[10]
(Emphasis added)
[8] (1984) 115 LSJS 270.
[9] (1984) 115 LSJS 270, 273.
[10] White J referred to the above passage in R v Copeland (2010) 108 SASR 398 and made the observation (with which I respectfully agree) that: “It can be seen that in this passage, King CJ contemplated partial concurrency of individual sentences.”
The meaning and effect of s 18A Sentencing Act
When sentencing for multiple offences prior to the enactment of s 18A Sentencing Act,[11] it was necessary to specify the particular length and structure of each of the sentences relating to the various offences charged. The question early arose as to the effect, if any, of s 18A upon that requirement. In one of the first decisions on the construction of the new provision in R v Nixon, Legoe J stated:[12]
The section creates a statutory discretion whereby courts are provided with another alternative in formulating a multiple sentencing package. It is a discretion which is unfettered. At the same time, it is not a substitution for nor does it replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence. In my opinion it is a very useful power which should be used where the circumstances for using the section do not conflict with other well-established principles of sentencing practice.
(Emphasis added)
[11] Section 18A came into force on 30 September 1992. It has since been slightly amended in minor ways (not relevant to the present discussion) and now provides as follows: “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.”
[12] (1993) 66 A Crim R 83, 85-86.
In the later decision of the Court of Criminal Appeal in R v Skrjanc, Legoe J (with whom Mohr and Duggan JJ concurred) stated:[13]
This section was inserted in 1992. It is clearly an unfettered discretion. The section is not a substitute for other practices of constructing concurrent or multiple sentences: see Nixon (1993) 66 A Crim R 83.
[13] (1994) 71 A Crim R 347, 353.
In R v Major,[14] the Court of Criminal Appeal built upon and extended the position that had previously been established in R v Skrjanc.[15] Doyle CJ and Olsson J held that not only were sentences to be continued to be constructed by reference to the common law doctrine of concurrent and cumulative sentences (as decided in R v Skrjanc) but that, in every case, the sentence that would have been passed without the availability of s 18A should be specifically formulated. In the later decision of the Court of Criminal Appeal in R v Symonds,[16] Doyle CJ (with whom Prior and Mullighan JJ concurred) clarified what had been said in Major: [17]
[21]In Major the court was not stating a process that must be followed 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 s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
[14] (1998) 70 SASR 488.
[15] (1994) 71 A Crim R 347, 353.
[16] [1999] SASC 217.
[17] [1999] SASC 217.
In R v Gale, Bleby J (with whom Doyle CJ and Wicks J concurred) stated:[18]
[18]This court has pointed out on previous occasions that in imposing a single sentence for multiple offences under s 18A of the Criminal Law (Sentencing) Act, the sentencing court runs a serious risk of committing an error in the sentencing process if notional sentences for each count are not first arrived at and then consideration given to whether they should be cumulative or concurrent: R v Major (1998) 70 SASR 488 per Doyle CJ at 490. …
(Emphasis added)
[18] (1999) 74 SASR 235, 238.
In R v Place[19] a five member bench of the Court of Criminal Appeal stated:
[31]In our opinion this court should exercise the power contained in s 18A of the Sentencing Act to fix a single penalty in respect of all offending. However, in order to arrive at that single penalty, it is appropriate to have regard to the individual sentences that would have been fixed if the power in s 18A did not exist. Ultimately, the question of totality must be addressed. In order to reach the point of considering totality, the preferred approach is to determine the appropriate sentences for the individual offences and to decide whether, totality aside, the circumstances would ordinarily require those sentences to be concurrent or cumulative. In the absence of s 18A, after taking into account totality and determining the appropriate total period to be served, that period could be achieved by making the sentences wholly or partially concurrent: Pearce v The Queen (1998) 194 CLR 610; Director of Public Prosecutions v Grabovac [1998] 1 VR 664, 676-681.
(Emphasis added)
[19] (2002) 81 SASR 395, 408. A joint judgment of four Justices with Gray J specifically agreeing with the reasons. The bench of five Judges was convened to consider the propriety of the practice of allowing an identified discount for a guilty plea. The concluding portion of the judgment entitled focuses on the facts of the case and the passage appears in that context.
The later decision of the Court of Criminal Appeal in R v Capalbo,[20] is to like effect and will be referred to below.
[20] [2005] SASC 47.
And in R v McNamara[21] Vanstone J (with whom Kourakis J concurred) stated:
[27]The Court of Criminal Appeal has consistently held that, in applying s 18A of the Sentencing Act, the sentencing judge, should, as a general rule, first determine what sentence each separate offence would attract. Then, consideration should be given to whether the sentences would be concurrent or cumulative: R v Major (1998) 70 SASR 488 at 490 (Doyle CJ) and 497 (Olsson J); R v Place (2002) 81 SASR 395 at 432 (Doyle CJ, Prior, Lander and Martin JJ). Following that method has the advantage of exposing the sentencing process to scrutiny by an appellate court. … Having said that, I do not suggest that a precise or arithmetical approach is called for. Ultimately, the sentence imposed under s 18A must reflect the total criminality involved: Attorney-General v Tichy (1982) 30 SASR 84 per King CJ at 85; R v Siozios (2004) 236 LSJS 88 per Perry J at [4], Doyle CJ agreeing.
(Emphasis added)
[21] (2009) 105 SASR 38.
In R v Copeland (No2),[22] there is an extensive discussion of the doctrine of concurrency of sentence. White J and Kourakis J expressed very similar views, both as to the continuing importance of that doctrine and as to the importance of transparency in relation to the sentencing for multiple offending. White J stated:[23]
[73]Beyond rejecting the appellant’s submission that the court should impose separate but wholly concurrent sentences, the judge did not give any explanation of the way in which the single sentence imposed under s 18A of the CLSA was constructed. It is unfortunate that the judge did not do so. When s 18A of the CLSA is invoked, it is usually desirable for a sentencing judge or magistrate to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent, and then to determine the aggregate sentence. …
[Emphasis added; footnote omitted]
[22] (2010) 108 SASR 398.
[23] (2010) 108 SASR 398, 417.
In similar vein, Kourakis J stated:[24]
[93]The power conferred by s 18A CLSA provides a procedural faculty which is calculated to avoid inadvertent error in the announcing and recording of multiple sentences and the calculation of release dates for those sentences by the correctional authorities. Section 18A of the CLSA does not abrogate sentencing principles governing the accumulation of sentences nor was it intended to render the sentencing process inscrutable. …
…
[98]… I wish to emphasise the importance of giving careful consideration to the extent, if any, to which individual sentences would have been made concurrent, if s 18A had not been utilised. From the perspective of sentencing principle, the failure to identify the individual sentences conceals the approach taken to accumulation or concurrency, the answer to which, obviously enough, has a great effect on the total sentence.
[Emphasis added; footnotes omitted]
[24] (2010) 108 SASR 398, 422.

Later in his judgment, Kourakis J adds:
[110]The sentencing process is complex enough when concerned with single offences. When sentencing for multiple offences the notional maximum penalty available, and the proliferation of variables and differences which confound any attempt at comparison with other sentences, present the judge with a daunting challenge. In my view, there is but one way in which that challenge can be met rationally and transparently. It is by the application of established principles governing the imposition of cumulative and concurrent sentences, having regard to the relative importance of punishment, deterrence and rehabilitation in the particular case.
I respectfully agree with the above comments of both of their Honours.
The first aspect of partial concurrency here - charges of serious criminal trespass and theft committed on the same occasion
In relation to each of David J’s first, third, seventh and eighth dot points, the appellant was sentenced for a pair of offences consisting of a serious criminal trespass – an unlawful entry made for the purpose of stealing as yet unknown goods – and, once inside, the stealing of such goods.
It is quite usual for an information to contain one count charging an offence of serious criminal trespass and a further count charging an offence subsequently committed while on the same premises.[25] While facts will vary greatly, in some such cases the factors in favour of a degree of concurrency of sentence will need to be afforded substantial weight. To illustrate that proposition, one may envisage one end of a spectrum as a case involving an opportunistic unlawful entry made with no particular purpose, perhaps just out of curiosity, that is followed by a much more serious crime committed inside the premises, perhaps a serious assault on an occupant unexpectedly encountered. In such circumstances, the two crimes may have little overlap. However, at the other end of the spectrum may be a case where the offender enters simply for the purpose of stealing goods that may be inside and, once inside, does exactly that.
[25] R v Delphin (2001) 79 SASR 429.
At this end of the spectrum, there are substantial factors militating in favour of at least partial concurrency. The need to address those factors was specifically recognised in R v Delphin, where Debelle, Bleby and Wicks JJ stated:[26]
[41]Whether a global sentence for all offences should be imposed under s 18A of the Criminal Law (Sentencing) Act, or whether separate sentences should be imposed, and whether they should be concurrent or cumulative, will be for the sentencing judge or magistrate to determine in light of the nature and proximity of the charges and other relevant factors. That issue itself may present some difficulty where two charges are laid.
[26] (2001) 79 SASR 429, 439.
In the present case, there are a number of strong indicators that the two offences within each pair of offences should be afforded at least partial concurrency as between themselves. They include the following matters.
First, closeness in time and place have always been very important matters when concurrency of sentence is being considered. Here, the two crimes within each pair occur very close in time and at the very same place.
Second, there is a substantial overlap of the ingredients of the two charges. In most offences, the offender is punished for both the act and the intention with which the act was committed. This is certainly true of the offence of “serious criminal trespass” where the intent with which entry was made will often be more important than the mere fact of entry itself. Against that background, one notes that each charge of serious criminal trespass here consists of an action (“entry”) and an intention (to steal goods) while each charge of theft consists of an action (to steal goods) and an intention (again, to steal goods). The intention to steal goods is common to both charges and would ordinarily be punished under both charges. This being so, the danger of double punishment looms large.
Third, the loss and violation experienced by the victim due to the very invasion of their home is very real and is to be taken into account when sentencing for serious criminal trespass. But the loss and violation experienced by the victim due to the loss of goods is also very real and is also to be punished by the theft charge. To take the matter to its logical conclusion, the ransacking of the victim’s premises and belongings also causes loss and violation and is referable to both the serious criminal trespass and to the commission of the theft. The danger of double punishment must be guarded against in such circumstances and there is a considerable overlap between the two offences in each of the four pairs of offences in the present case. In summary, the two offences in each of the four pairs are:
·committed at virtually the same time;
·committed in exactly the same place;
·committed against the same victim;
·have the same required mental intent;
·cause the same type of harm to the victim; and
·committed from the same motive and for the same purpose.
The second aspect of partial concurrency – the course of conduct generally
R v Blain[27] (referred to above) is a good example of the wider use of concurrency “to reach a total punishment which is the proper punishment for the course of conduct disclosed”.
[27] (1984) 115 LSJS 270, 273.
To similar effect, Kourakis J said in R v Copeland (No2):[28]
[107]The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality. Where, for example, a sentencing judge commences with a notional sentence which is calculated by simply multiplying the sentence which would have been imposed on one of a series of offences, by the number of offences committed in that series, there will almost always need to be a substantial reduction for totality. …
[28] (2010) 108 SASR 398.
The Judge’s sentence and sentencing remarks
During the course of his sentencing remarks his Honour stated:
Were I to adopt starting points of imprisonment for the numerous offences you have committed, discount them for your plea, cumulate them and then modify that in accordance with all the appropriate sentencing principles, I would be mentioning figures to you for the next 15 minutes, which I fear would be ultimately unintelligible.
I have undergone that exercise but I feel it would be a complicated and unhelpful exercise to recount it to you. Suffice it to say that for each of the offences of aggravated serious criminal trespass in a place of residence, serious criminal trespass in a place of residence, and theft from residential houses, you could have expected several years of imprisonment in each case, which cumulatively would be significantly in excess of ten years.
I apply the Criminal Law (Sentencing) Act principles, I take into account all the circumstances and I apply the principle of totality. I recognise that your sentence must reflect the overall criminality of your conduct, but also the need for it not to be crushing to you if that is avoidable.
As mentioned, in setting the following penalties I have taken into account your time in custody and on home detention.
There are two matters arising from his Honour’s remarks upon which I must comment. The first matter is that while it is true that most persons at the time of sentencing will only be interested to hear the answer to the question “How much?”,[29] the desirability of transparency of sentencing transcends a judge’s assessment of the ability of a particular defendant to understand an explanation. Important aspects of the value of such a transcribed explanation include that it may be referred to by the lawyers to whom the person may turn for advice or by the appellate court to which the person may seek to appeal or by the general public who are entitled to be informed on such matters.
[29] Cf Pearce v The Queen (1998) 194 CLR 610, 623 [45].
The second matter is that his Honour imposed a single sentence for all 12 offences in the first category but did not allude to either of the two aspects of concurrency referred to above. To the contrary, his Honour indicated that he had undertaken the exercise to “adopt starting points of imprisonment for the numerous offences you have committed, discount them for your plea, cumulate them and then modify that in accordance with all the appropriate sentencing principles”. Thus his Honour stated that he had selected notional sentences for each of the offences and then simply cumulated, or added up, all of those sentences and then had somehow modified that total, apparently adopting a totality approach to which his Honour later referred as “the need for it not to be crushing to you if that is avoidable.”
I consider that his Honour thereby erred as a matter of sentencing principle. In R v Capalbo,[30] the appellant had pleaded guilty to some 47 offences comprising mainly offences of dishonesty. The sentencing Judge identified the notional sentences he would have imposed for each of the individual offences – but did so on the basis that all were made cumulative, with the totality principle then to be applied. White J (with whom Doyle CJ and Besanko JJ concurred) made it plain that this was an erroneous approach. His Honour stated:
[57]… in applying the Major approach it is essential that a sentencing judge determines whether the notional individual sentences would have been ordered to be served concurrently or cumulatively. This must occur before the aggregate of the notional sentences is calculated and before any application of the totality principle. As already noted, the sentencing judge’s approach in this case assumed that all sentences would be served cumulatively. In my opinion that was an error. Had individual sentences been imposed, some sentences in this case would inevitably have been ordered to be served concurrently.[31]…

(Emphasis added)

[30] [2005] SASC 47.

[31] The word in the judgment here is actually “cumulatively” but this appears to be a typographical error.

In the present case, his Honour distinctly stated that he had selected notional sentences for each of the offences and cumulated them. The fact that his Honour did not reveal those individual sentences or their total in no way differentiates his approach from that deprecated in Capalbo. Having regard to the content, structure and context of his Honour’s remarks, I am of the view that his Honour did not adequately consider the matter of concurrency of sentence as it applied to the category one offences and a re-sentencing is required. [32]
[32] It would have been sufficient for a re-sentencing in this case if I had only been able to come to the less positive state of mind that I “am not satisfied that the judge did this” and so infer an error. Thus in R v LLK (2003) 231 LSJS 458 [15] Doyle CJ stated: “Having taken the approach the judge did, he should have considered whether the separate sentences that he postulated would have been made to operate concurrently, at least to some extent, or whether they should be cumulative: Major at 490 Doyle CJ at 497 Olsson J; Gale at [18] Bleby J. I am not satisfied that the judge did this, and accordingly I must proceed on the basis that an error has been made. Although the judge referred to the fact that if the terms were cumulative, they would amount to 16 years’ imprisonment, he gave no reasons for so deciding, and my impression is that he might have thought it unnecessary to consider this matter, having regard to his overall approach”. (Emphasis added) Similarly, in R v Gibbs (2004) 89 SASR 30, 32 Doyle CJ stated [4]: “The approach which the sentencing judge took has exposed, in my opinion, a failure to provide for some concurrence at least as between some of the sentences imposed by the judge. I consider, with respect, that the judge has inappropriately taken the approach that all of the sentences that were appropriate should be taken cumulatively. …”
Further, and in any event, I am of the view that the sentence of eight years is manifestly excessive in all of the circumstances. I will briefly refer to three illustrative decisions supportive of that conclusion.
In R v Richards[33] the appellant, after a three day trial, was convicted by a jury of aggravated serious criminal trespass in a place of residence and theft. Virtually everything in the house was taken, the property exceeded $30,000 in value and included a large quantity of furniture, electrical goods and even the occupant’s clothing. The offences involved planning, two people and the use of a large vehicle to transport the stolen goods. None of the property was recovered. The victim was severely inconvenienced and, apart from the tangible property, lost a great deal of vital information for his business stored on a computer which was also taken. The appellant gave false evidence at the trial denying his involvement but later admitted the offence during his counsel’s submissions on sentence. He was sentenced by the trial Judge to six years imprisonment with a non-parole period of three years.
[33] [2006] SASC 60.
At the time of sentencing, the appellant was 41 years of age and had previous offences of unlawful possession, receiving stolen goods, serious criminal trespass and larceny in circumstances where he was using illicit drugs after his marriage break-up. He had been looking after his emotionally disturbed son and had developed a strong relationship with the boy which would have been adversely affected if he were to be imprisoned. On appeal, applying s 18A of the Sentencing Act, the Court imposed a head sentence of four years with a non-parole period of two years[34] and suspended the sentence. Sulan J (with whom Nyland J agreed) stated:
[37]Conduct which amounts to aggravated serious criminal trespass in a place of residence is extremely varied. For example, at one end of the scale, it can amount to a simple breaking and entering with intent to steal in the company of another person. At the other extreme, it can be a number of persons breaking into premises which they know are occupied, with the intention of assaulting or sexually assaulting occupants in the house. There can be no identified standard or range of penalties for this type of offending. See: R v Staker.[35]
[34] The period of three months already served was taken off the head sentence and the non-parole period.
[35] [2001] SASC 266.
As stated above, the appellant in Richards pleaded not guilty and therefore the comparison is directly between Richards’ head sentence of four years[36] and the present appellant’s notional sentence of ten years[37] in circumstances where the amount stolen by Richards was about three times the total value of the goods taken by the present appellant.
[36] Ignoring time served.
[37] Before reduction for her pleas of guilty.
In Kells v Police,[38] the appellant pleaded guilty to three pairs of offences committed on three separate occasions – three counts of non–aggravated serious criminal trespass and three counts of theft, contrary to s 134(1) of the Criminal Law Consolidation Act. The appellant was aged 30, had a drug problem and the offending was carried out for the purpose of obtaining money to purchase illicit drugs. He had an extensive criminal record, including convictions for breaking and entering, having been sentenced to terms of imprisonment on at least nine separate occasions. The Magistrate commenced with a notional sentence of three years four months (prior to reduction for pleas of guilty and time served). A non–parole period of 11 months imprisonment was imposed as to which there was no appeal by either side.
[38] [2007] SASC 224.
The appellant appealed against the head sentence on the basis that three years four months was manifestly excessive as a notional starting point. David J rejected that contention and stated:
[7]In my view, the starting point of 40 months imprisonment was clearly within the magistrate’s discretionary range and was correct in principle.
This was, of course, a defendant’s appeal, but nevertheless there was no suggestion, express or implied, that this was too low a sentence. In my view, it was a not unreasonable sentence, was within the Magistrate’s range of discretion and, as David J observed, was “correct in principle”.
In Kells, the crimes involved not insubstantial planning and the use of an accomplice. Although it is no justification, and undoubtedly cold comfort for the victims, the present offences appear to have involved very little planning and a high degree of incompetence by the desperate appellant. The total value of the goods stolen ($15,675) was more than the total in the present case ($7,000 for the one minor indictable offence of theft plus probably a total of several thousand dollars for the other three charges of theft in the four pairs.)
I note that in Kells the charges were “non-aggravated” (even though an accomplice was waiting outside). However, as explained in R v Delphin:[39]
[69]While deterrence is obviously a major consideration, the circumstances of the offence do not cease to be relevant. Some sense of proportion must be maintained between, on the one hand, an aggravated serious criminal trespass at the lowest end of the scale, which this is, and, on the other hand, a serious criminal trespass where there is a similar intention and greater damage is caused… .
[39] (2001) 79 SASR 429, 444 (Debelle, Bleby and Wicks JJ).
There are here, apart from the four pairs of offences, another four offences but these are relatively minor matters and the overall comparison with the position in Kells remains a stark one: in Kells the starting point was a notional sentence of three years four months (prior to reduction for pleas of guilty and time served) whereas here the starting point was a notional sentence of ten years.
Finally, as a matter of a broader comparison of sentencing for the most serious and aggravated theft offences, I note that in R v Place,[40] to which I have referred above in a different context, the Full Bench considered the appropriate disposition of charges of six armed robberies together with a further three offences of illegal use of motor vehicles and two further offences of threatening with a firearm[41] 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 that were taken into account, a package of offending of far greater seriousness than the present. 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[42] 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. The present appellant has received a head sentence of eight years imprisonment as compared to 12 years imprisonment in Place.
[40] (2002) 81 SASR 395.
[41] 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.
[42] 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.
For all of the above reasons, a re-sentencing is required.
Re-sentencing
I note that the appellant has three children, the youngest less than one year of age, and that although she had relevant previous convictions for which she had been fined, she had not previously been sent to prison. Having regard to all of the antecedents and personal circumstances of the appellant as they appear in the extensive material and submissions before the sentencing Judge (including the medical and other reports), I consider that in all the circumstances the following notional sentences for the 12 offences (in the same order as David J’s dot points) would be appropriate:
·1 June 2010, the place of residence of Ms P: two periods of imprisonment, partially concurrent so as to produce one effective period of three years imprisonment.
·25 August 2010, summary charge of theft: a period of nine months imprisonment.
·26 August 2010, the place of residence of Mr F at Noarlunga Downs: two periods of imprisonment partially concurrent so as to produce one effective period of two years imprisonment.
·1 September 2010, a summary charge of theft of petrol of the value of $70: a period of one months imprisonment.
·16 September 2010, the place of residence of Mr C - summary charge of property damage: a period of three months imprisonment.
·20 September 2010, summary charge of illegal interference with Ms W’s motor vehicle: a period of three months imprisonment.
·30 September 2010, the place of residence of Mr T at Old Reynella: two periods of imprisonment partially concurrent so as to produce one effective period of two years nine months imprisonment.
·14 October 2010, place of residence of Ms W at Seaford: two periods of imprisonment partially concurrent so as to produce one effective period of two years imprisonment.

As is clear from the above, I have implemented a degree of partial concurrency as between the two offences within each of the four pairs of offences. However, I consider that there should be a further reduction by way of partial concurrency of all of the twelve offences in order to implement the general approach adumbrated by King CJ in R v Blain[43] as referred to above.
[43] (1984) 115 LSJS 270.
I acknowledge that the same result could be reached by way of a “totality” approach in the present case. However, I consider that there is a course of conduct to be addressed here and while drug addiction is certainly no excuse for criminal offending, and will not prevent condign punishment being imposed on the offender, the fact that there is an overarching factor present throughout the period of offending which, to a limited extent, may be seen to bind the appellant’s conduct together, has some bearing when considering the general approach to be taken. Like King CJ in R v Blain, I consider that in all the circumstances an approach by way of partial concurrency is the most appropriate way here, although I acknowledge that it is not the only way.
The above notional periods of imprisonment should be partially concurrent to the extent that the effective total period is eight years imprisonment which, I consider (without reference to the pleas of guilty), is “the punishment commensurate with the total course of conduct”.[44] I would then reduce that eight year period to a period of six years four months imprisonment by reason of the pleas of guilty.
[44] R v Blain per King CJ (1984) 115 LSJS 270, 273.
Accordingly, I would impose a single sentence of six years four months imprisonment pursuant to s 18A Criminal Law (Sentencing) Act 1988. I consider that the non-parole period of two years six months was a merciful one and I would not reduce it further. Accordingly, I would fix a new non-parole period of two years six months. I would not suspend the sentence.
Proposed orders
I propose the following orders:
1 That the appeal be allowed.
2 That the single sentence of eight years imprisonment for the offences referred to by the sentencing Judge be set aside and, pursuant to s 18A Criminal Law (Sentencing) Act 1988, there be a new single sentence of six years four months imprisonment for those same offences to commence on 3 August 2011.
3 That the original non-parole period of two years six months be set aside and a new non-parole period of the same period of two years six months be fixed and commence on 3 August 2011.
4 That the other sentences and orders made by the sentencing Judge not be disturbed and that such other sentences of imprisonment are to be served concurrently with the new sentence of six years four months imprisonment
BLUE J: On this appeal, the question whether in the circumstances of this case a sentencing Judge ought to have identified notional sentences for each offence prior to fixing a single sentence pursuant s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) does not arise. It does not arise because it was not argued and because the sentencing Judge said that he did determine notional sentences for each offence prior to fixing a single sentence.
There appear to be differences (at least in emphasis) in previous decisions of this Court concerning whether and in what circumstances a sentencing judge ought first to determine notional sentences for each offence when proceeding pursuant to s 18A of the Act. Some of those decisions are referred to in the reasons for judgment of David J and Peek J. Given the circumstances of this case, I prefer to express no opinion on that question.
Subject to that reservation, I agree with the reasons for judgment of Peek J.
I would allow the appeal. I agree with the orders proposed by Peek J