R v Bui
[2018] SASCFC 19
•23 March 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUI
[2018] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
23 March 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - OFFENDER'S ADDICTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
Appeal against sentence for serious drug offending in 2011 and 2013 in South Australia. Prior to being sentenced and in 2014, the appellant failed to answer bail having been charged with a drug offence in New South Wales. He was there sentenced to six years’ imprisonment with a non-parole period of three years. Upon serving the non-parole period, the appellant was extradited to South Australia. He was then sentenced to 10 years and four months’ imprisonment with a non-parole period of seven and a half years.
Whether and to what extent drug addiction is a relevant factor in sentencing – whether the principles in R v Todd and Mill v The Queen applied to the appellant’s situation – whether sentence imposed in this State was manifestly excessive or excessive having regard to the sentence already served in New South Wales.
Held Vanstone J (Kelly J agreeing; Kourakis CJ dissenting): Appeal dismissed. Drug addiction is not a mitigatory circumstance, although it is relevant factor. The sentencing judge properly had regard to the New South Wales sentence. It remained an important feature of the circumstances of the appellant. However the approach recommended in Mill v The Queen, where a spate of offending occurred in two states over a period of six weeks, was not engaged on the facts. The sentences fixed were not manifestly excessive. The totality principle did not call for a reduction of them.
R v Spiero (1979) 22 SASR 543; R v Proom (2003) 85 SASR 120, applied.
R v Constant (2016) 126 SASR 1; Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517, distinguished.
R v Constant (2016) 126 SASR 1; R v Varano (1989) 150 LSJS 140, considered.
R v BUI
[2018] SASCFC 19Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ
KOURAKIS CJ: This is an appeal against sentences totalling a little over 10 years four months imprisonment for serious drug trafficking offences committed in 2011 and 2013. I gratefully adopt the summary of the sentencing material in the judgment of Vanstone J. I would allow the appeal but only for the purpose of reducing the non-parole period from seven and a half years to six years and two months.
I agree that the sentence imposed for the 2011 offending, viewed in isolation, was not affected by error for the reasons given by Vanstone J, subject to the following two qualifications.
First, I reserve my view as to whether it remains appropriate, after the enactment of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), to increase the sentence imposed on the more serious of a number of offences to reflect the totality of the criminal conduct when those sentences are imposed concurrently. The preferable approach is to order, or indicate, for the purposes of s 18A of the Sentencing Act, a partial concurrency of the sentences. It suffices to say that I would not have imposed any lessor total period of imprisonment for the 2011 offending had I adopted that approach.
Secondly, I have considered the starting point for the totality of the 2011 offending and hold that the sentence is not manifestly excessive because I do not consider the reduction made by the Judge for the appellant’s guilty plea to have been unduly generous.
I now turn to the complaint that the Judge failed to properly take into account the time served in prison in New South Wales. Before doing so I make the following observations about the practical operation of both the New South Wales sentence and the sentences imposed by the Judge:
·the total nominal head sentence is 16 years and four months;
·the total effective head sentence is 13 years and four months because the Judge’s sentence commenced operation three years into the sentence of six years imposed in New South Wales, which was when the appellant’s parole on that sentence commenced;
·the nominal and effective non-parole period was 10 years and six months (three years on the New South Wales sentence and seven years six months fixed by the Judge);
·the nominal period on parole, if the sentence in New South Wales had been imposed contemporaneously with the sentences imposed in this State, would have been five years and 10 months (the difference between the notional sentence of 16 years and four months and the effective and notional non-parole period of 10 years and six months); and
·the effective period on parole will be two years and 10 months because the three years of parole allowed by the New South Wales sentence is subsumed by the commencement of the sentences imposed by the Judge.
At the conclusion of sentencing submissions, the Judge asked prosecuting counsel whether it was proper to take into account the time spent in custody in New South Wales for the purpose of reducing the sentences his Honour was to impose. Counsel assented to that proposition. The Judge made extensive reference to the sentencing of the appellant in New South Wales and ordered that the sentences he imposed take effect from the date when the appellant was taken into custody in South Australia on the expiration of the non-parole period fixed in New South Wales. However the Judge’s reasons do not disclose whether, or, just as importantly, how, his Honour took that period into account in fixing the sentences for the 2011 and 2013 offences.
I take the principle identified in Mill v The Queen[1] to be that when sentences are imposed sequentially by courts in several States, subsequent sentencing courts must apply the principle of totality as if the previous sentence or sentences had been imposed in the same State. Accordingly, the longer period of time between the State and inter-State offending in this case and the offending in Mill affects only that aspect of the totality principle which supports concurrency, partial or total, in the case of offences closely connected temporally or causally. That aspect of the principle, which concerns the stricture that the total sentence should not be crushing and should allow for future rehabilitation, was applicable to the appellant’s sentencing.
[1] (1988) 166 CLR 59.
It follows that the question the Judge was bound to ask in this case was: ‘to what extent, if any, should the sentences I would otherwise have imposed be moderated by the totality principle because the appellant has already served three years imprisonment in New South Wales for a serious offence of supplying methylamphetamine in an amount which is not less than a large commercial quantity?’ That question in turn leads to further enquiries like:
·is an effective sentence of 13 years and four months and a non-parole period of 10 years six months crushing in the circumstances of this case or a necessary punishment for persistent serious drug offending over a period of three years, including whilst on bail?
·is an effective period on parole of two years 10 months after imprisonment for 10 years six months a sufficient period on parole to support the appellant’s future rehabilitation?
·is an effective sentence as long as 13 years four months and non-parole period of 10 years six months necessary to deter the appellant, who has not previously been sentenced to immediate imprisonment, from further offending?
The Judge plainly concluded that the sentence was not crushing, that a sentence of the length imposed was necessary, and the period of parole was sufficient. However, his Honour’s reasons do not disclose that he had addressed those questions, or any associated, enquiries. I would hold that the failure to address those relevant, and in the circumstances of the case, salient, questions vitiated the exercise of the Judge’s sentencing discretion.
I would also hold that the Judge’s reasons are inadequate in their failure to explain how the time served in New South Wales was factored into the sentences his Honour imposed. It is necessary therefore to determine whether I would have imposed any different sentence.
I would impose the same head sentence because the offences were serious, separate and persistent incursions into the illicit drug trade over a number of years. The commission of the 2013 offending whilst on bail was an aggravating factor. The head sentences imposed were appropriately moderated, that is less than that which could properly have been imposed if the appellant had been sentenced for them alone and without taking into account his imprisonment in New South Wales. If an offender persists in repetitive serious offending, the accumulation of the head sentence will necessarily result in a high total sentence. The totality principle may moderate accumulation but it does not allow the offending to be ignored. The head sentences fixed by the Judge were appropriately moderated and I would not impose any lesser terms.
Nevertheless I would allow greater leniency in the non-parole period. The appellant has not before been sentenced to an immediate term of imprisonment. A non-parole period significantly less than the effective non-parole period of 10 years six months is likely to be as effective as a personal deterrent. The non-parole period fixed by the Judge was about 75 per cent of the head sentences. A proportion higher than 50 per cent was necessary in this case but the appellant’s antecedents do not persuade me that his criminal ways are so intractable that a proportion as high as that fixed by the Judge, of a relatively long sentence, is appropriate. The net result is to allow just under three years to support the appellant’s rehabilitation on parole after more than 10 years’ incarceration. I would fix instead a non-parole period of about 60 per cent, namely six years and two months.
VANSTONE J: Huy Dung Bui appeals against a sentence imposed in the District Court for two groups of serious drug offences committed in 2011 and 2013 respectively. The total sentence was just over ten years and four months’ imprisonment, with a non-parole period of seven and half years.
The appellant had been before the District Court in 2012 to 2014 in relation to these charges, but because he failed to answer his bail, they were not finalised. In March, 2014 the appellant committed a further drug offence in New South Wales and was sentenced there to a term of six years’ imprisonment with a non‑parole period of three years. On completion of the non-parole period he was extradited to this State. The appellant argues that both the individual and the total sentences imposed in the District Court were too long, and that insufficient weight was given to the service of a term of imprisonment of three years in New South Wales, immediately prior to imposition of the present sentences.
Background
It is convenient to set out aspects of the sequence of the offending, in tabular form:
Information Date Offence Quantity Maximum Head sentence 1
20.09.11
Trafficking in methylamphetamine
26.3 gr
10 yrs/fine
3 yrs, 2 m, 2 w
̎ Possessing heroin
7.8 gr
2 yrs/fine 4 m, 3 w ̎ Possessing pseudoephedrine 5,490 tablets weighing
3,520 grams
(large commercial)25 yrs/fine 5 yrs, 7 m, 1 w
(all concurrent)
2
10.05.13
Trafficking in heroin
17.43 gr
10 yrs/fine
4 yrs, 9 m, 2 w
̎ Possessing methylamphetamine
5.6 gr 2 yrs/fine 4 m, 3 w, 4 d ̎ Unlawful possession $59,515 2 yrs/fine 4 m, 3 w, 4 d
(all concurrent but cumulative on Information 1)
(NSW)
27.03.14
Supplying methylamphetamine
1161 gr
(large commercial)Life
6 yrs
̎ Unlawful possession
(taken into account)$5,000 (included)
(NPP of 3 yrs from 27.03.14)
It can be seen that the appellant’s was a serious course of offending. Dealing with the first information, the appellant was apprehended at his home having just driven into his driveway. In the motor car was found 26 grams of methylamphetamine paste, together with scales and snap lock bags. In the house police found 5,490 tablets of pseudoephedrine, a precursor, said to be worth about $25,000 if sold by the ounce. This was count 4 on the information. Also found was 7.8 grams of methylamphetamine, with respect to which the Director of Public Prosecutions accepted a plea to simple possession. That was said to be worth at least $6,000.
The appellant entered his guilty pleas in the District Court on 17 June 2013, but foreshadowed a facts dispute going to the circumstances of his possession of the substances. That hearing took place on 11 March 2014. Having heard the appellant’s evidence, the sentencing Judge was not persuaded on the balance of probabilities by the appellant’s evidence that he was holding the pseudoephedrine and the methylamphetamine for a third party for safe keeping, that his premises were used to cut drugs for that other, or that he sometimes supplied drugs to his own friends on behalf of that other person but had no intention to sell them himself. In rejecting that basis the Judge had available to him a document in the form of a “tick list” in the appellant’s handwriting containing numerous names and evidencing large transactions, as well as evidence that police had also found a number of mobile telephones and zip lock bags.
In submissions by the appellant’s counsel on 9 August 2013, the Judge was told that the appellant had developed a drug habit which had escalated in 2010 to the point of being very severe, but which he had now overcome. It was said that the appellant had ceased using drugs and was “confident” that he could continue to progress well. Later in the same month he was arrested for the offences which were charged in counts 1 and 2 of the second information. (Count 2 was subsequently discontinued.)
In respect of the 2013 offending the prosecution alleged a significant drug dealing enterprise yielding substantial commercial benefit. That was said to be demonstrated by the amount of $60,000 in cash found in the bathroom of the appellant’s home, along with glass wear and equipment suitable for manufacturing drugs and the 17.43 grams of heroin, the subject of count 1, the trafficking charge. That was said to be worth at least $9,000. Also found in the home were other smaller amounts of controlled substances, including the methylamphetamine, the subject of count 3.
On 27 March 2014 the appellant was arrested in Sydney and charged with supplying methylamphetamine, the amount being a large commercial quantity. He had flown to Sydney that day and was due to return on the same afternoon. He left South Australia in breach of the terms of his bail. The charge was based on the finding of 1,161 grams of methylamphetamine in his possession in the motor car he was driving. The appellant was also charged with unlawful possession of $5,000. He was apprehended in the highway, obviously affected by drugs. The accoutrements of drug taking were found with him. The unlawful possession offence was ultimately taken into account in the sentence for supplying methylamphetamine. The appellant was sentenced by Judge Jeffreys in the District Court of New South Wales. Against a maximum penalty of life imprisonment he was given a sentence of six years, with a non-parole period of three years. That was backdated to 27 March 2014. The Judge took into account as an aggravating factor that the appellant was on bail for charges of trafficking in South Australia.
In sentencing, the Judge under appeal expressed satisfaction that the appellant was “involved in a significant way in the trading of drugs”. His Honour set out the facts of the full sequence of offending, including the New South Wales offending. The account of that last was plainly informed by the comprehensive sentencing remarks of Judge Jeffreys, which the Judge had. The Judge set out the New South Wales sentence. He then recorded in some detail particulars of the appellant’s background, outlining his age (41 years), family circumstances, his traumatic childhood as a child of refugees, and the tragic deaths of two of his brothers in separate car accidents. He observed that this led to the appellant’s drug use, over a long period. He noted that there were periods of abstinence. The Judge said that, having regard to the appellant’s record, which contained some dishonesty offences, no leniency on account of good character could be afforded to him. However, he observed that there were no prior convictions for drug offending.
In fashioning the sentence, the Judge gave the appellant discount for his guilty pleas of 20 per cent with respect to the 2011 offending. These offences did not attract the operation of s 10C of the Criminal Law (Sentencing) Act 1988 (SA) as they preceded its introduction. He gave the maximum of 10 per cent discount in relation to the 2013 offences.
The sentences for the offences on each information were to be served concurrently as between themselves, but the sentences on the two informations were to run consecutively. A non-parole period of seven years and six months was set. The total sentence was backdated to 28 March 2017, being the day after the New South Wales’ non-parole period expired.
Arguments on appeal
In support of her argument of manifest excess Mrs Shaw QC, for the appellant, focussed first on the starting point of seven years for possessing a large commercial quantity of pseudoephedrine. She argued that at the time of commission of the 2011 offending the appellant had no prior drug convictions. Counsel put that the weight of pure pseudoephedrine was only 141 grams and it was worth about $25,000. She put that even after reduction the sentence of five years, seven months and one week, was manifestly excessive. Reference was made to R v Constant [2016] SASCFC 87.
Mrs Shaw also argued that the Judge’s decision to add the sentences for the two informations – allowing for no concurrency – contributed to the manifestly excessive total. She contended that the episodes of offending had a common cause in the appellant’s drug addiction. Inadequate weight was placed, it was argued, on the steps the appellant had taken towards rehabilitation while in custody.
Then, Mrs Shaw submitted that the approach taken by the Judge to the recent completion of the appellant’s three year non-parole period was an erroneous one. Indeed, counsel contended that what needed to be regarded was not the bare three year non-parole period, but the non-parole period Judge Jeffreys would have imposed but for the discount of 25 per cent for the guilty plea which he gave. On Mrs Shaw’s analysis, in order to reach Judge Jeffreys’ sentence of six years with a three year non-parole period after giving a discount of 25 per cent, the Judge must have started at eight years’ imprisonment with a four year non-parole period. Therefore, the argument ran, the Judge under appeal should have credited the appellant with having already served four years. Further, Mrs Shaw argued, the Judge under appeal failed to have regard to and apply the authorities Mill v The Queen (1988) 166 CLR 59 and R v Todd [1982] 2 NSWLR 517, which deal with the approach to sentencing where a term for similar offending committed interstate has already been served. Mrs Shaw put that the Judge’s error was that:
… his Honour failed to apply the principle in Mill’s Case, namely that his Honour had to ask what would be likely to have been the effective head sentence imposed if the applicant had committed the New South Wales offence and the South Australian offence in the one jurisdiction.
It was contended that this was the sentence that had to be imposed. Later Mrs Shaw clarified the imputed obligation on the Judge to be that he had to ask himself what approach would he have taken to a sentence for all crimes (taking as given, the findings the New South Wales Judge had made) and to apply that sentence.
Analysis
The appellant was 41 years of age at the time of sentence. Although prior to 2011 his record showed no offences relating to drugs, it contained multiple convictions for dishonesty offences. He had twice been placed on a suspended sentence bond for such offences. In those circumstances he could not claim the leniency which would have been afforded a man of prior good character in relation to the first group of offences. Anyway, the subsequent offending demonstrates that any such leniency would have been misplaced. Of more relevance was the fact that, until sentenced in Sydney, the appellant had not been in gaol.
The appellant argues that insufficient weight was placed on the steps towards rehabilitation taken while the appellant was serving his sentence in Sydney. It was said in the written argument that the Judge “simply stated that ‘…during his time in gaol in Sydney, he has relied on his spiritual beliefs and has undertaken programs in gambling addiction and drug counselling, which will stand him in good stead upon his release from custody.’ ” However, this statement encapsulates the entirety of the submission made to the Judge on this topic. Moreover, having attended two programs in a prison setting – while commendable – can hardly demonstrate rehabilitation in the sense in which that concept is comprehended in sentencing authorities.
I turn to the competing arguments on the relevance of the appellant’s addiction to drugs. As the Judge noted, the history of the appellant’s drug taking suggested that the appellant seemed to be able to stop using drugs when he wanted to. Nonetheless, submissions to this Court suggested that the appellant was in the “grip of his addiction” and that it was a “raging” one.
The general principle is that addiction to drugs is, of itself, neither an excuse for serious crime, nor a mitigatory circumstance. It is, though a relevant factor. It may provide a context for the offending and may bear on the scope for rehabilitation. In R v Spiero (1979) 22 SASR 543 at [549] King CJ said (with the agreement of Walters and White JJ):
… The appellant has a criminal record. He is addicted to heroin. One feels sympathy for a person who has become entangled in drug addiction, but the courts cannot treat addiction as an excuse, or even a mitigating factor, in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same severe punishment as would be received by others.
In R v Proom [2003] 85 SASR 120 at [43] Doyle CJ (with whom Duggan J agreed) said:
… Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Nevertheless, addiction may be a relevant circumstance. It might explain that the offender is not a professional criminal, or did not make a calculated decision to offend. Addiction will often be relevant to prospects of rehabilitation, but might indicate that those prospects are not good. In the end, if addiction is of any significance, it is to be considered in the context of all of the circumstances of the case.
In the present case the appellant’s addiction to drugs was a relevant factor, but it could not serve to reduce either his moral culpability, or the sentence otherwise indicated. That was so for several reasons. First, it was plain that there had been periods when the appellant was abstinent by dint of his own self‑control. Then, it was plain that the appellant was making profits from his dealings far in excess of what might be needed to fund his addiction. That was demonstrated by the finding of about $60,000 at his home on 10 May 2013. Next, and a related point, the course of conduct from 2011 to 2014 inclusive showed involvement at a high level in serious drug trafficking. That the Judge remained unpersuaded by the appellant’s evidence regarding the 2011 offending was not without significance either. His failed attempt to minimise his own role and to distance himself from the substantial manufacture of drugs of dependence is barely consistent with the picture of an addict who is dealing only to fund his own habit. Indeed, the appellant’s submission to the Court on 9 August 2013 was that he had overcome his drug addiction.
Mrs Shaw’s contention that the penalty for possessing a commercial quantity of pseudoephedrine was manifestly excessive should not be accepted. As noted above, the maximum penalty is life imprisonment. The quantity involved was over three times the threshold for a large commercial quantity. The differences in quantity and maximum penalty of themselves rendered unhelpful any comparison with the sentence imposed in R v Constant (2016) 126 SASR 1. Consideration of the asserted excess of a sentence must rest upon the sentence imposed, rather than the starting point. It is the sentence imposed against which the appeal is lodged. Having said that, focussing on the 2011 offending in isolation, I do not accept that any part of the process was open to criticism. Since the terms imposed for all three offences on that information were to be served concurrently, the longest one had to comprehend the totality of that conduct. (See R v Tichy (1982) 30 SASR 84.) In other words, the longest sentence had to reflect that penalty was to be imposed for not one but two serious drug offences. Having settled on a starting point of seven years for count 4 and starting points for the other two charges, the Judge gave a generous reduction of 20 per cent for the pleas of guilty. It was generous because the pleas were entered long after the first arraignment and at a time when the matter was set down for trial (to be 5 March 2013). It was also generous in light of the appellant’s failed attempt to persuade the Court of a version of the facts which minimised his culpability, which in turn tended to tell against both a facilitation of the ends of justice and contrition. (See R v Varano (1989) 150 LSJS 140.)
In all the circumstances the sentences imposed on the 2011 offending, viewed in isolation, are not open to criticism.
I turn to the arguments going to delay. As mentioned, the authorities relied on to support this argument were Mill and Todd. I shall start with Todd, as it was decided first. There, over a period of eight days, the appellant and his companion committed a spate of offences including attempted armed robbery and robbery, first in New South Wales and then in Queensland, where they were apprehended. The appellant was sentenced in the Supreme Court of Queensland to an aggregate of eight years’ imprisonment with a non-parole period of three years. He was later extradited to New South Wales, having served about five years of that sentence. There, the District Court Judge said he “should not take account of [Todd] having served sentences in Queensland.” The Court of Criminal Appeal held that this was an erroneous approach. Street CJ (with whom Moffitt P and Nagh CJ at CL agreed) said this at 519:
But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved.
Taking that approach, the Court reduced the non-parole period of four years imposed in the District Court by about two and a half years. The Court noted that the new period would expire just under seven years from the date when the appellant was taken into custody in Queensland.
In Mill the High Court considered a sentence of eight years’ imprisonment imposed for an offence of armed robbery committed in Queensland in January 1980. Within the six weeks leading up to that offence the appellant had committed two armed robberies in Victoria. He was apprehended there and sentenced to ten years’ imprisonment with a non-parole period of eight years. Upon release, he was extradited to Queensland, and was arraigned there in March 1988. The sentencing Judge applied the principle in Todd, to the extent of imposing a non-parole period which had full regard to the term already served. However, the Judge made no reduction to the head sentence on account of that principle. This, the High Court held, was in error.
The High Court treated the relevant principle as being the totality principle. The Court said that usually the demands of that principle were met by ordering some concurrency or partial concurrency, or by lowering the individual sentences: 63. But the facts of this case made the application of the principle more difficult. The Court said at 63-64:
The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.
The Court approved the statement of Street CJ in Todd, but held there was no reason to restrict the operation of the principle to the non-parole period. The Court said at 65-66:
In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time.
and further at 66:
The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.
…
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.
It is this last statement which Mrs Shaw argues should have been applied to the situation of the appellant. Mrs Shaw puts that the short time spans over which the offences in both Todd’s Case and Mill’s Case were committed does not rob the principle of application here, nor make inapposite the “proper approach” referred to in the last quoted passage. Mrs Shaw contends that the failure to follow that approach amounts to an error.
I do not agree that the sentencing Judge fell into error in the manner asserted. There is a marked difference in sentencing a person for a spate of offending over a short period – as in Todd and Mill – as compared with a man who has undertaken three separate incursions into the criminal law over a period of about two and a half years; and, it could be added, has been charged in relation to each before committing the successive crimes. Of course the totality principle remained of potential relevance in the appellant’s situation, and the recent completion of his three year non-parole period in New South Wales was an important feature of his situation. However, the peculiar circumstances discussed in Todd and Mill, which gave rise to the specific approach recommended in Mill at 66, were not present in the appellant’s case.
It remains to consider whether the application of the totality principle renders manifestly excessive the total sentence imposed in the District Court. As I have just observed, an important feature of the appellant’s circumstances was that he had served three years’ imprisonment immediately prior to being returned to South Australia. Mrs Shaw argued, with great ingenuity, that this period should be seen as one of four years as it would have been longer, absent the appellant’s plea of guilty in New South Wales. That argument cannot be accepted. The totality principle is concerned with taking a last look at the total of sentences to be served: Mill’s Case. It is the final step in the sentencing process and its purpose is to ensure that adding up a number of discreet sentences does not lead to a total which is either crushing, or more than is just and appropriate. Therefore, what is in issue is the actual sentence to be served.
In its original form the totality principle was applied most often in the situation where a single judge was sentencing for a number of offences, usually forming one multifaceted course of conduct. (For example, see the formulation in R v Tichy (1982) 30 SASR 84 at 92-3 quoted by Gleeson CJ in Johnson v R (2004) 205 ALR 346 at 348.) However, as Mill’s Case recognises, the principle can apply more widely. In the present case, for reasons already set out, the matter of relevance was that the appellant had recently served a period of imprisonment for unrelated drug offending, not that the period was served interstate. There were several important features of the matter which called for a severe sentence. Without purporting to be comprehensive, the 2011 offences were not the first offences committed by the appellant and so he could claim no leniency for good character. The 2013 offences were committed while on bail for the 2011 offences. That was a significant aggravating feature and it was not to the point that Judge Jeffreys had also taken that feature into account in his sentence. Although it could be inferred from the amount of cash held by the appellant when police searched his house in May 2013 that he had re-established his drug trading business, these were two separate episodes of offending, calling for cumulative sentences. The need for the sentence to act as a deterrent hardly needs emphasis. The applicable maximum penalties have already been mentioned. Against these matters had to be weighed the issues raised in the submissions made on the appellant’s behalf, including the personal tragedies he had suffered.
Having considered all the relevant matters, I have reached the view that the sentences imposed on each information were just and fair. It was appropriate to order concurrency as between the offences on each information and it was appropriate to accumulate the two longer sentences. I cannot agree that the sentences were excessive, even in the context of their following upon the three year period already served. It is true that the Judge did not mention the totality principle in his remarks; but that does not indicate that he was not cognisant of it. More importantly, the sentences fixed did not, in my opinion, call for a reduction having regard to that principle and the period already served.
Conclusion
No error has been shown in the Judge’s approach to the sentence.
The sentences imposed – individual and total – did not call for a reduction on account of totality and were not manifestly excessive.
I would dismiss the appeal.
KELLY J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.
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