R v Capalbo

[2005] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAPALBO

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)

10 February 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCES ON TWO OR MORE COUNTS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - FINES

Appellant was sentenced in the District Court for 47 offences, mainly dishonesty offences - Appellant was sentenced to a single term of imprisonment of 10 years, one month and 15 days in respect of 33 of the offences - That term of imprisonment was cumulative upon the unserved portion of an existing sentence, being five months and 19 days - Non-parole period of six years was set - Driver's licence disqualifications were imposed, to commence on date appellant released on parole - In determining sentence of imprisonment, sentencing Judge identified notional sentences for each offence - Appeal is against single sentence rather than notional sentences, as notional sentences have not been "passed" - Judge erred in failing to identify whether notional sentences would have been made cumulative or concurrent - Judge erred in imposing fines when no real prospect of payment by appellant - Judge erred in ordering driver's licence disqualification to begin on uncertain day - Order that appellant be disqualified from driving after release on parole was oppressive - Sentencing remarks adequate given complexity of sentencing - Appeal allowed - Remitted to District Court for re-sentencing.

Criminal Law (Sentencing) Act 1988, s 13, s 18A, s 19, s 57; Criminal Law Consolidation Act 1935, s 86A, s 131, s 170, s 195, s 196, s 235, s 270A, s 352, s 353; District Court Act 1991, s 43; Magistrates Court Act 1991, s 42; Second-Hand Dealers and Pawn Brokers Act 1996, s 20; Australian Road Rules r 20, r 215; Road Traffic Act 1961, s 42, s 168, s 169A; Motor Vehicles Act 1959, s 91; Summary Offences Act 1953, s 38, s 74A, s 141; Bail Act 1985, s 17, referred to.
R v Gibbs [2004] SASC 187; (2004) 89 SASR 30; Police v Nowak [2000] SASC 82; (2000) 76 SASR 551, applied.
Valenzuela v Police (1998) 70 SASR 275, not followed.
R v Major (1998) 70 SASR 488, discussed.
R v Allen [2002] SASC 98; (2002) 81 SASR 434; R v Simpson [2004] SASC 307; Hermel v Police [2000] SASC 34; (2000) 76 SASR 336; R v Gale [1999] SASC 309; (1999) 74 SASR 235; R v Tu [2001] SASC 395; (2001) 216 LSJS 297; R v Kelly [2000] SASC 293; Hunt v Police [2001] SASC 145; Police v Hunt (Doyle CJ, 14 April 1997, jdgt S6125, Unreported); Rang v SA Police (Mullighan J, 12 November 1993, jdgt S4263, Unreported); Police v Curtis and Marshall [2004] SASC 184; R v Nevermann (1989) 43 A Crim R 114; R v Spreitzer (1991) 58 A Crim R 114; Cross v Police [2001] SASC 47; Shrubsole v Rodriguez (1978) 18 SASR 233, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"from a day or hour"

R v CAPALBO
[2005] SASC 47

Court of Criminal Appeal:  Doyle CJ, Besanko and White JJ

1. DOYLE CJ:         I agree with the reasons given by White J for the orders that this Court made on 23 November 2004, allowing the appeal, setting aside the sentences imposed by the District Court, and remitting the matter to the District Court for resentencing.  There is nothing that I wish to add to those reasons.

2. BESANKO J:      On 23^rd November 2004 the Court made orders allowing the appeal, setting aside the sentences imposed by the District Court, and remitting the matter to the District Court for re-sentencing.  I agree with the reasons given by White J for those orders.

   WHITE J

   Introduction

3. This is an appeal against sentence. 

4. On 23 November 2004, the Court made orders allowing the appeal, setting aside the sentences imposed by a Judge of the District Court on 12 March 2004 in respect of 47 offences and remitting the matter to the District Court for re-sentencing.  The Court said that it would publish its reasons for allowing the appeal at a later date.  The following are my reasons.

5. The appellant pleaded guilty (either in the District Court or in the Magistrates Court) to each of 47 separate offences.

6. Five of the offences were charged on an Information which was before the District Court.  The remainder (42) were matters which had been referred to the District Court (apparently at the suggestion of the District Court Judge) in order that the appellant could be sentenced for all offences at the same time.

7. By the commission of 41 of the 47 offences, the appellant breached a bond entered into on 18 October 2001 by which he had agreed to be of good behaviour for a period of 12 months. An application pursuant to s 57 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) for enforcement of the bond was also before the sentencing Judge.

8. The various offences for which the appellant was sentenced are summarised later in these reasons.  For the moment, it is sufficient to note that they comprised, in the main, offences of dishonesty of various kinds, offences involving the knowing provision of false information, and offences arising from the use of a motor vehicle.  The offences of dishonesty, in particular, were said to be associated with the appellant’s repeated drug abuse.

9. In respect of 33 of the offences, the appellant was sentenced, pursuant to s 18A of the Sentencing Act, to a term of imprisonment for 10 years, one month and 15 days.  In addition, by reason of the breach of bond, the suspension of the balance of a term of imprisonment imposed by the Magistrates Court on 19 August 2001 was revoked.  The unserved portion of that sentence (five months and 19 days) had to be served in addition to the sentence imposed by the District Court Judge.  The total period of imprisonment was, therefore, 10 years and seven months.

10. The District Court Judge fixed a non-parole period of six years which, like the head sentence, was to commence on 12 February 2003.  The appellant had been in custody continuously from 12 February 2003. 

11. In addition, licence disqualifications totalling two years to commence on the date on which the appellant would be paroled were also imposed in relation to two offences of illegal use of a motor vehicle.

12. Five of the offences were dealt with by the recording of a conviction without further penalty being imposed.  Fines totalling $1,800 were imposed in relation to the remaining nine offences.

13. The appellant complains about several of the orders made by the sentencing Judge.  Leave to appeal was granted on 5 July 2004 in respect of the five grounds of appeal contained in the Application for Leave to Appeal filed on 2 April 2004 and in respect of 15 additional grounds contained in a document headed “Additional Grounds of Appeal”.  On the hearing of the appeal Grounds 1, 2, 3 and 5 of the grounds contained in the original application for leave, and Ground 1 of the Additional Grounds of Appeal were abandoned.

    The Source of the Appeal

14. Where a person is convicted on Information in the District Court, an appeal against sentence lies to the Full Court of this Court only with leave; s 352 Criminal Law Consolidation Act 1935 (“the CLCA”). Insofar as the sentence of imprisonment was imposed for the offences charged on Information in the District Court, leave to appeal was therefore required. As noted above, a Judge of this Court granted that leave on 5 July 2004.

15. It was suggested in R v Allen [2002] SASC 98; (2002) 81 SASR 434 that an appeal against sentences imposed by the District Court for offences referred to it for sentencing from the Magistrates Court lay as of right pursuant to s 42 of the Magistrates Court Act 1991 to a single judge of this Court. On the other hand, in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30, Perry J, with whom Mullighan J was in general agreement, considered that in respect of offences charged other than on information, the appeal lay by right to the Full Court pursuant to s 43 of the District Court Act 1991. Doyle CJ was not prepared to depart from the position determined in R v Allen without hearing full argument.  This was also the approach adopted by Gray J (with whom Nyland J agreed) in R v Simpson [2004] SASC 307. In the circumstances of this case where leave to appeal to this Court has, in any event, been granted on all grounds, it is not necessary to address this issue. It is plain however that this is an issue which warrants prompt attention by the Parliament.[1]

    [1]Cf the statements to this effect by Doyle CJ and Mullighan J in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at 33 [11] and 48 [135] and by Gray J in R v Simpson [2004] SASC 307 at [51].

    The Appellant’s Background

16. The appellant was 35 at the time he was sentenced.  He was born in Italy and migrated to Australia with his family in 1972, when he was three.

17. The appellant left school at age 15 during the course of his Year 10.  He worked for about 12 months with VIP Lawn Mowing.  In 1985 he was involved in a serious car accident as a result of which he lost one leg.  This led to a period of two years rehabilitation in which he learnt to manage using a prosthesis.  Following that time, he worked for a period of approximately 12 months as a maintenance worker and following that as a dismantler.  He has had work of a like kind with two further employers.  However, since 1991 he has been unemployed.

18. At the time of sentencing, the appellant had a girlfriend with whom he had had a relationship for approximately four years.  There is one child from that relationship, now aged about two years.

19. The appellant has a long history of illicit drug use.  At one stage he had an addiction to heroin.  The sentencing judge accepted that the appellant’s drug abuse has contributed to a long history of serious offending.

20. The sentencing Judge described the appellant’s antecedent record as “forbidding”.  The appellant has a history of repeated offending extending back to 1984.  He has had multiple prior court appearances for offences involving dishonesty, offences related to illicit drugs and offences relating to the use of motor vehicles. In addition the appellant has, several times, not complied with the terms of a bond or with the terms of a bail agreement.

21. The appellant has served lengthy terms of imprisonment in the recent past.  On 11 August 1997, the appellant appeared in the Magistrates Court for offences of larceny, false pretences and unlawful possession and was sentenced to imprisonment for 46 months and 18 days with a non-parole period of 32 months.  On 7 September 2001, the appellant was sentenced in the Adelaide Magistrates Court for one count of larceny.  A head sentence of seven months and 19 days imprisonment was imposed but with provision for that sentence to be suspended after the appellant had served two months upon him entering into a bond to be of good behaviour for 12 months.  That bond (entered into on 18 October 2001) was still current at the time the appellant committed 41 of the 47 offences for which he was sentenced in the District Court.  In fact, five of the offences for which he was sentenced by the District Court Judge had been committed before the end of October 2001 despite the appellant having been released from custody only on 18 October 2001.

22. The sentencing Judge noted a submission to the effect that the appellant had only recently begun to recognise the effect on him of sexual abuse which he experienced between the ages of eight and 11 at the hands of a non-family member.  Some detail about that abuse was contained in a psychological report prepared by Dr White, which was received by the sentencing Judge.

    The Offences for which the Appellant was Sentenced

23. I set out in the following table the five offences for which the appellant was charged on Information in the District Court.

No	Date	Offence	Max	Date Guilty	Penalty Imposed by Sentencing Judge
Penalty	Plea Entered	Imp. Notional	Fine	Disq.
1	11/1/02	Aggravated serious criminal trespass – s 170(1)(ii) CLCA	Life imp.	14/7/03	2 yrs
2	11/1/02	Larceny – s 131 CLCA	2 yrs imp.	18/9/02	3 mths
3	9/1/02– 12/1/02	Receiving – s 196(1) CLCA	2 yrs imp.	18/9/02	6 mths
4	11/1/02	Illegal interference with motor vehicle – s 86A CLCA	2 yrs imp. plus 12 mths lic. disq.	18/9/02	3 mths	1 yr
5	11/1/02	Larceny – s 131 CLCA	2 yrs imp.	18/9/02	3 mths

1. The following table records additional offences committed by the appellant during the period of the 12 months bond which commenced on 18 October 2001 and for which he was charged in the Magistrates Court.

No	Date	Offence	Max	Date Guilty	Penalty Imposed by Sentencing Judge
Penalty	Plea Entered	Imp. Notional	Fine	Disq.
6	26/10/01	Receiving – s 196(1) CLCA	2 yrs imp.	15/8/02	6 mths
7	26/10/01	Knowingly provide false information to a 2nd-hand dealer – s 20(2) Second-Hand Dealers and Pawn Brokers Act 1996 (“S-HD&PBA”)	$10,000	15/8/02	$200
8	26/10/01	Knowingly provide false information to a 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
9	21/11/01	Knowingly provide false information to a 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
10	25/10/01	Knowingly provide false information to a 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
11	25/10/01	Knowingly provide false information to a 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
12	19/11/01	Knowingly provide false information to a 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
13	22/11/01	Drive disqualified – s 91 Motor Vehicles Act 1959 (“MVA”)	2 yrs imp. (subsqt offence)	15/8/02	3 mths
14	22/11/01	Drive w/out operating headlights – s 215(1) Australian Road Rules	$1,250	15/8/03	Conviction without penalty
15	1/12/01	Fail to truly answer – s 42 Road Traffic Act 1961 (“RTA”)	$1,250	15/8/03	Conviction without penalty
16	1/12/01	Drive disqualified – s 91 MVA	2 yrs imp. (subsqt offence)	15/8/03	3 mths
17	5/1/02	Attempted false pretences – s 195 & s 270A CLCA	16 mths	17/9/03	3 mths
18	11/1/02	Illegal interference with motor vehicle – s 86A CLCA	4 yrs imp. plus mandtry 12 mths lic. disq.	17/9/03	3 mths	1 yr
19	11/1/02	Larceny – s 131 CLCA	2 yrs imp.	17/9/03	3 mths
20	27/12/01-1/2/02	Unlawful possession – s 141(1) Summary Offences Act 1953 (“SOA”)	$10,000 or 2 yrs imp.	17/9/03	3 mths
21	27/12/01-1/2/02	Unlawful possession – s 41(1) SOA	$10,000 or 2 yrs imp.	17/9/03	3 mths
22	27/12/01-1/2/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
23	27/12/01-1/2/02	False pretences s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
24	2/1/02	Fraud other than false pretences – s 38 SOA	$10,000 or 2 yrs imp.	17/9/03	3 mths
25	10/1/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
26	10/1/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
27	14/5/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
28	14/5/02	Forgery – s 235 CLCA	14 yrs imp.	17/9/03	2 yrs
29	15/5/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
30	15/5/02	Forgery – s 235 CLCA	14 yrs imp.	17/9/03	2 yrs
31	16/5/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
32	16/5/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
33	22/5/02	Forgery – s 235 CLCA	14 yrs imp.	17/9/03	2 yrs
34	25/5/02	False pretences – s 195(1)(a) CLCA	4 yrs imp.	17/9/03	3 mths
35	29/5/02	Exceed speed limit – s 20 Australian Road Rules	$1,250	17/9/03	Conviction without penalty
36	29/5/02	Fail to truly answer – s 42 RTA	$1,250	17/9/03	Conviction without penalty
37	29/5/02	Fail to truly answer – s 42 RTA	$1,250	17/9/03	Conviction without penalty
38	29/5/02	Produce false evidence of name – s 74A(3)(b) SOA	$1,250 or 3 mths imp.	17/9/03	$200
39	29/5/02	Drive disqualified – s 91 MVA	2 yrs imp	17/9/03	3 mths
40	14/6/02	Unlawful possession – s 41(1) SOA	$10,000 or 2 yrs imp.	17/9/03	3 mths
41	14/6/02	Breach bail agreement – s 17(1) Bail Act 1985	$10,000 or 2 yrs imp.	17/9/03	1 mth

1. The following six offences were committed before the appellant was sentenced in the Magistrates Court on 7 September 2001.  Accordingly, the commission of these 6 offences did not constitute a breach of the bond entered into on 18 October 2001.

No	Date	Offence	Max	Date Guilty	Penalty Imposed by Sentencing Judge
Penalty	Plea Entered	Imp. Notional	Fine	Disq.
42	30/1/01	Unlawful possession – s 41(1) SOA	$10,000 or 2 yrs imp.	17/9/03	3 mths
43	29/1/01	Receiving – s 196(1) CLCA	2 yrs imp.	15/8/02	6 mths
44	29/1/01	Knowingly provide false information to 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
45	23/2/01	Receiving – s 196(1) CLCA	2 yrs imp.	15/8/02	6 mths
46	23/2/01	Knowingly provide false information to 2nd-hand dealer – s 20(2) S-HD&PBA	$10,000	15/8/02	$200
47	27/5/01	Drive disqualified – s 91 MVA	2 yrs imp.	17/9/03	2 yrs

1. The offences have been ordered in the tables in the same numerical sequence as used by the sentencing Judge. In the reasons which follow I will, where possible, refer to the offences by their number in the tables.

2. A number of the offences summarized in these tables were related.  It will be necessary to say more about that relationship later in these reasons.

   The Circumstances of the Offending

3. In the summary of the offending which follows, I will adopt a chronological sequence, rather than the numerical sequence used in the tables.

4. On 29 January 2001, a home was broken into and a VCR and stereo valued at $800 were stolen.  Later that same day, the appellant, knowing they were stolen, pawned the VCR and the stereo at Cash Converters, falsely claiming that he was the owner of them.  This conduct comprises the offences 43 and 44.

5. On 30 January 2001, the appellant attempted to sell a quantity of power tools and hand tools to Cash Converters at Adelaide.  These items had been stolen.  The appellant’s possession of these stolen items constituted the offence of unlawful possession which is number 42 in the tables.

6. On 23 February 2001, the caravan of a Ms Boyd was broken into and a television and VCR valued at $833 were stolen.  Later that same day, the appellant pawned the television and the VCR at Cash Converters.  The appellant knew they had been stolen but claimed to the Cash Converters’ employee that he was the lawful owner of them.  This conduct comprised the offences of receiving and knowingly providing false information to a second-hand dealer which are numbers 45 and 46 in the tables.

7. The appellant had been disqualified on 18 April 2001 from holding a drivers’ licence for a period of nine months.  The period of disqualification was to expire on 17 January 2002.  On 27 May 2001, the appellant drove a car in Hindley Street in Adelaide.  He admitted that he knew it was an offence to drive whilst disqualified.  This was offence number 47 in the tables.

1. On 25 October 2001 (seven days after the appellant’s entry into the good behaviour bond), the appellant pawned at two Cash Converters’ stores two car stereos valued at $200 and $400 respectively, claiming that he was the owner whilst knowing that they had been stolen.  This conduct comprised the offences 10 and 11 in the tables.

2. On 26 October 2001, the appellant received three cameras, an engagement ring and a VCR knowing them to have been stolen.  The goods had been stolen that day from a Mr Jackson whose house had been broken into.  Later on 26 October 2001, the appellant pawned these goods (other than the VCR) at two different Cash Converters’ stores, claiming that he was the owner.  This conduct constituted the offences 6, 7 and 8 in the tables.

3. So as to maintain the chronology of events, I interpolate that on 27 October 2001, the appellant committed the offences of driving whilst disqualified, driving at a dangerous speed, failing to comply with a police request to stop the vehicle and driving an unregistered and uninsured vehicle.  He appeared in the Elizabeth Magistrates Court on 15 November for each of these offences, and received fines totalling $1,600 and licence disqualifications totalling eight months, which were to commence on 17 January 2002, ie, on the expiry of the existing period of disqualification.

4. On 19 November 2001, the appellant pawned, at the Kilkenny Cash Converters’ store, a car stereo valued at $400 which he knew to be stolen, falsely claiming it to be his own.  This was offence 12 in the tables.

5. On 21 November 2001, the appellant pawned, at the Kilkenny Cash Converters’ store, the VCR which he had received on 26 October 2001, falsely representing that he was its owner.  This was the offence numbered 9 in the tables.

6. On 22 November 2001, the appellant committed a further offence of driving whilst disqualified from doing so by driving a vehicle on James Street, Salisbury (number 13 in the tables).  This offence was committed only seven days after the appellant had appeared, as referred to above, in the Elizabeth Magistrates Court for, amongst other things, the same offence which had been committed on 27 October 2001.

7. On 1 December 2001, the appellant committed the offences numbered 14, 15 and 16.  The appellant drove a car on Bridge Road, Para Hills.  He was still disqualified from holding a licence.  His vehicle did not have operating headlights.  When questioned by the police, the appellant gave a false name.

8. Between 27 December 2001 and 1 February 2002, the appellant engaged in the conduct which constituted the offences numbered 20, 21, 22 and 23.  The appellant had in his possession two stolen cheques, both issued by Bank SA in the name of Silvia Crotty.  The appellant deposited both cheques into his CBA account on 1 February 2002 thereby obtaining $861.35 and $936 respectively.

9. On 2 January 2002, the appellant falsely pretended to a company, B Digital Ltd, that he was Peter Falzon, as a result of which B Digital entered into a contract with the appellant and provided him with a mobile telephone.  The appellant did not pay for the telephone or the subsequent calls made on it, which totalled $1,239.75.  This conduct constitutes the offence numbered 24.

10. On 5 January 2002, the appellant committed the offence of attempted false pretences which is number 17.  The appellant attempted to purchase a car from a private vendor by paying to her a Bank SA cheque for $750 in the name of S Crotty.  On receipt of the cheque, the vendor gave the appellant the registration papers for the car but kept the car pending the cheque clearing.  Bank SA subsequently refused to honour the cheque as the cheque was stolen.

11. On 10 January 2002, the appellant committed the two offences of false pretences which are numbered 25 and 26.  The appellant twice used a Coles-Myer credit card in the name of Peter Falzon to purchase goods totalling $1,087.76 and $887.95 respectively.  No payment has been made to Coles-Myer for those goods.

12. At about 6.20 am on 11 January 2002, the appellant entered a home at Largs Bay.  This entry constituted the offence of aggravated serious criminal trespass in an occupied place of residence, which is number 1 in the tables.  The appellant was disturbed by a female occupant whilst removing a VCR.  The appellant fled, taking a mobile telephone, drivers’ licence, wallet, $60 in cash and credit cards.  The larceny of these items comprised the offence numbered 2.  When interviewed by police, the appellant gave a false account. 

13. An hour or so after these offences were committed, another home at Largs Bay was broken into.  Two business files, a sports bag, a spray jacket, car stereo equipment, cash and other items were stolen.  These items were found in the appellant’s possession later that same day.  The appellant’s receipt of those goods constituted the offence of receiving which is number 3.

14. Later still on 11 January 2002 at approximately 3.30 pm, the appellant broke into a Rover sedan in a shopping centre car park at Fulham.  The appellant stole the rotor and the distributor cap thereby disabling the car.  That conduct comprised the offences of illegal interference and larceny which are 4 and 5 in the tables.  When questioned by the police, the appellant gave a false account.

15. In addition, on 11 January 2002, the appellant committed the offences of illegal interference and larceny, which are numbered 18 and 19.  The appellant broke into a locked car in an hotel car park, stealing a mobile telephone, a car stereo system and a motor vehicle owner’s manual and log book.

16. On 14, 15, 16, 22 and 25 May 2002, the appellant committed the offences of false pretences and forgery which are numbered 27 to 34 inclusive in the tables.  Each of these offences involved the false pretence that the appellant was one Peter Falzon.  On 14 May, by falsely pretending that he was Peter Falzon, the appellant withdrew $250 from Mr Falzon’s CBA account.  On the same day, the appellant forged a CBA change of address notification form in the name of Peter Falzon to change the mailing address details for Mr Falzon’s CBA account.  On 15 May, the appellant withdrew $690 from Mr Falzon’s CBA account (Offence 26).  On the same day, the appellant forged a CBA internet banking application form in the name of Peter Falzon, thereby applying for internet access to Mr Falzon’s CBA account (Offence 20).  On 16 May 2002, the appellant made two withdrawals from Mr Falzon’s CBA account, on each occasion falsely pretending that he was Peter Falzon.  The appellant thereby obtained $90 and $38 respectively.  On 22 May 2002, the appellant forged a CBA increase in credit limit application form requesting an increase in the credit card limit on Mr Falzon’s account (Offence 33).  Finally, in this series of offences, on 25 May 2002 the appellant falsely pretended to a company, Flexirent Pty Ltd, that he was Peter Falzon and thereby obtained finance for the purchase of a computer system and other equipment (total value $2,729).  No reimbursement has been made to the CBA or to Flexirent in respect of the amounts thus obtained.  It is apparent, as was accepted before the sentencing Judge, that the series of offences involving the use of Mr Falzon’s identity involved a degree of planning.

17. On 29 May 2002, the appellant committed the offences numbered 35 to 39 inclusive in the tables, namely exceeding the speed limit, failing to truly answer questions of a member of the police force (twice), producing false evidence of his name and driving whilst disqualified. The police stopped the appellant, who was driving at 73 km/h in a 60 km/h zone, on Anzac Highway. Upon being asked his name, the appellant provided the police with a false name. After checking their records, the police requested that the appellant state his correct name. This time the appellant gave his name as Peter Falzon, and produced a false driver’s licence in the name of Peter Falzon, but bearing the appellant’s photograph.  This was the fourth offence of driving whilst disqualified in a period of 12 months.  It was accepted before the sentencing Judge that each of the offences of driving whilst disqualified was contumacious.

18. On 14 June 2002, the appellant committed the offences 40 and 41, viz., of unlawful possession and breach of bail. The police stopped a vehicle in which the appellant was a passenger and found in his possession property stolen from the home of one Mark Campbell.  That property consisted of two drivers licences, two credit cards, a bank key card and two mobile telephones. At the time he was stopped the appellant was in breach of two bail conditions, namely a curfew condition which operated between 9 pm and 7 am, and a home detention agreement which required the appellant to wear an electronic wristlet.

    Sentencing Judge’s Approach to Sentence

19. As noted above, the sentencing Judge imposed a single term of imprisonment pursuant to s 18A of the Sentencing Act in respect of 33 of the offences. He acknowledged, correctly, that it was not open to include in the single sentence of imprisonment any period for an offence for which the only penalty prescribed was a fine: Hermel v Police [2000] SASC 34; (2000) 76 SASR 336.

20. In respect of those offences for which a term of imprisonment was possible, the sentencing Judge identified the notional sentences for the individual offences which he would have imposed if s 18A was not available.  The notional terms of imprisonment determined by him appear in the tables above under the heading “Imp. Notional”. 

21. The Judge took as his starting point the aggregate of the notional terms of imprisonment, namely 17 years and 10 months.  That assumed that each notional term of imprisonment would have been ordered to be served cumulatively.  The Judge then discounted his starting point by 25 per cent on account of the appellant’s pleas of guilty.  That reduced the notional starting point to 13 years and four months.  Applying the totality principle, the Judge reduced that figure to 11 years and fixed that period as a single sentence for the 33 offences for which imprisonment was a possible penalty.  The Judge then deducted a period of 10 months and 15 days for time spent in custody prior to 12 February 2003 giving a head sentence of 10 years one month and 15 days.

22. This sentence was made cumulative upon the unserved period of the suspended sentence of five months and 19 days.  The “final total head sentence” was therefore 10 years and seven months, which the Judge ordered be taken to have commenced on 12 February 2003.

    Use of Section 18A

23. In adopting the approach of determining notional individual sentences, the sentencing Judge was influenced by the decisions of this Court in R v Major (1998) 70 SASR 488 per Doyle CJ at 490, per Olsson J at 497; R v Gale [1999] SASC 309; (1999) 74 SASR 235 per Bleby J at 238 [18]-[19]; and R v Tu [2001] SASC 395; (2001) 216 LSJS 297 per Martin J at 300 [16].

24. There was good reason to adopt the course which the Judge did.  It facilitated the identification of an appropriate head sentence.  It helped ensure that account was taken of each offence.  It added to the transparency of the sentencing process, and it was not inevitable that the final sentence would be less than the sum of the notional individual sentences so that it was artificial or superfluous to identify notional individual sentences.[2]

    [2]        Cf R v Kelly [2000] SASC 293.

25. However, 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.[3]  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 cumulatively.  I will return to this below.

    [3]        R v Major (1998) 70 SASR 488 at 490.

    Section 18A and Appeal

26. Where pursuant to s 18A a single sentence, determined after consideration of the notional individual sentences, is imposed, an appeal against sentence pursuant to s 352(1)(a) of the CLCA is an appeal against that single sentence. It is not, as some of the submissions on this appeal supposed, an appeal against the individual notional sentences themselves. Indeed, some of the submissions seemed to assume that the notional individual sentences had in fact been imposed. An appeal cannot lie against the notional sentences because those sentences were never imposed. The effect of s 18A is to permit one penalty to be imposed for several offences. In those cases in which it is applied it renders unnecessary the imposition of individual penalties for each offence. The appeal lies with leave against the “sentence passed”: s 352(1)(a)(iii). The Court of Criminal Appeal may quash “the sentence passed” and pass such other sentence as it thinks “ought to have been passed”: s 353(4). Because the individual sentences were notional only they were never “passed” in the sense in which that expression is used in ss 352 and 353.

27. Regard will usually be had on appeal, of course, to the sentencing Judge’s notional individual sentences in determining the appropriateness of the overall single penalty.  They are part of the sentencing Judge’s reasons for the sentence ultimately imposed.  An error in the fixing of the notional individual sentence may help in establishing that the single sentence ultimately imposed was either excessive or inadequate.

28. Contrary to a submission put on appeal, the prohibition in s 353(5) of Act, against an increase of the sentence on an appeal by a convicted person applies only to the single sentence fixed pursuant to s 18A of the Sentencing Act. That is, the sentence of which s 353(5) of the CLCA prevents being increased is the single sentence. Section 353(5) does not preclude the Court from determining that some of the notional individual sentences were too low and taking that into account in determining the appropriateness of the single sentence, or if it is adjusting the sentence, using notional sentences which are higher than those used by the sentencing Judge.

    Ground 9 – District Court’s Powers

29. Section 19(3)(a) of the Sentencing Act provides that the Magistrates Court cannot impose a term of imprisonment which exceeds two years.

30. The appellant contends that a District Court Judge, when sentencing for the offences charged on Complaints or Informations laid in the Magistrates Court which have been referred to the District Court for sentencing, is subject to the same limitations as would a Magistrate sentencing for those offences. The appellant submits that a Magistrate, even when imposing a single sentence pursuant to s 18A of the Sentencing Act for multiple offences cannot impose a sentence which exceeds two years. The appellant relied upon the decision of Lander J in Hunt v Police [2001] SASC 145 as authority for that proposition.[4]  There is, however, authority to the contrary:  Rang v SA Police (Mullighan J, 12 November 1993, jdgt S4263, Unreported); Police v Curtis and Marshall [2004] SASC 184.

    [4]        See also the judgment of Doyle CJ in Police v Hunt (14 April 1997,  jdgt S6125, Unreported).

31. It is unnecessary for that issue to be addressed on this appeal.  Whatever be the limitations on the powers of Magistrates, that limitation did not apply to the sentencing of the District Court Judge in this matter.  See the judgment of Perry J, with whom Mullighan J agreed, in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at 35 [29]-[39]. I agree with respect with the reasons of Perry J on this topic. Accordingly, this ground of appeal is not made out.

    Ground 3 – Concurrency of Terms of Imprisonment

32. Eight of the grounds of appeal related to the length of the sentence (or, as the appellant sometimes put it, the sentences) of imprisonment imposed.

33. Ground 3 complained that the sentencing Judge had not considered, as required by Major, that some of the sentences, if imposed individually, would have been made concurrent.  For the reasons already given, I consider that the sentencing Judge was in error in this respect. 

34. It is appropriate for sentences of imprisonment to be made concurrent where the offences arise out of the one course of criminal conduct or activity and are truly connected with each other.[5]

    [5]        R v Dorning (1981) 27 SASR 481 at 482.

35. It was submitted that as six of the offences (numbers 1, 2, 4, 5, 18 and 19) had occurred on the one day (11 January 2002) and the offence numbered 3 within a day or so of those offences, and each involved, or was related to, acts of dishonesty, they should have been regarded as the one course of conduct, and the notional sentences therefore made concurrent.

36. I agree with this submission in relation to some of the offences.  Offences 1 and 2 were related as the goods were stolen from the home into which the appellant had trespassed.  Offences 4 and 5 were related as the rotor and distributor cap were stolen from the car with which the appellant had interfered.  Offences 18 and 19 were related as the mobile telephone and other goods were stolen from the car with which the appellant had interfered.  I do not agree however, that these three sets of offences, nor the offence numbered 3, were so related that an order for concurrent service of each of the sentences of imprisonment imposed for them was appropriate.  It is true that all the offences (with the exception of number 3) were committed on the one day but they do not appear to be individual offences occurring within a single course of conduct.  Nor do they represent separate manifestations of one incursion into criminal conduct.  Rather, they appear to me to be offences which just happened to be committed within a relatively short period of time.

37. As the appellant is to be re-sentenced by another Judge of the District Court, it is inappropriate that I should make any comment on the sufficiency of the notional sentence of two years imprisonment imposed by the Judge in respect of offence number 1, viz., the offence of aggravated serious criminal trespass.  It is sufficient to note that the Judge who re-sentences the appellant will not be bound, in that re-sentencing, by the individual notional sentence fixed by the sentencing Judge.

38. Next, the appellant argued that the offences numbered 6 to 9 inclusive represented manifestations of the one course of conduct.  It is not necessary to consider this submission further in the present context as a sentence of imprisonment was fixed notionally in relation to offence number 6 only.  It was not submitted that that notional sentence (six months) was excessive.

39. Next, it was submitted that all of the notional sentences for the offences numbered 20 to 34 inclusive would, if imposed, have been ordered to have been served concurrently.  I do not agree with this submission but do agree that some of these notional sentences would be ordered to be served concurrently.  In my opinion, the offences 20 to 34 fall into four separate sub-groups.

40. The first group is the offences numbered 20 to 23 inclusive, which occurred in the period 27 December 2001 to 1 February 2002.  They relate to two cheques of a Ms Crotty which the appellant deposited into his own bank account, thereby obtaining $861.35 and $936.00 respectively.  The possession of the two cheques was an integral part of the false pretence committed on or about 1 February 2002 when the cheques were banked.  It would have been appropriate for a court to order that the sentences for these offences be made concurrent so as to avoid duplication of punishment.  I consider that these offences could appropriately have been treated as two pairs with, in each case, the imprisonment for unlawful possession being made concurrent with the imprisonment for the false pretence.  That conclusion makes it unnecessary to consider a submission that the notional sentences for the offences numbered 20 and 21 were excessive.

1. The offences numbered 24 to 34 inclusive all involved the use by the appellant, in one way or another, of the identity of Peter Falzon.  The appellant had somehow obtained the driver’s licence and some credit cards, and perhaps other documents, of Mr Falzon.  The appellant set about using those documents for his own benefit.  Three of the offences were committed in January 2002, and the balance in May 2002.  All of the offences involved conduct by which the appellant obtained a benefit for himself or (in the case of offences numbered 28, 30 and 33) conduct by which the appellant sought to facilitate the obtaining of a benefit for himself at some time in the future, at the expense of Mr Falzon, his bank or a retailer

2. I consider that the sentences for the offences committed in January 2002 (24, 25 and 26) would be ordered to be served concurrently.  Each involves conduct of a like kind and each was committed almost contemporaneously.  Again, it will be for the Judge who sentences the appellant to determine appropriate sentences for these offences.

3. The next sub-group comprises the offences 27 to 33 inclusive.  Each involved a false pretence in relation to Mr Falzon’s CBA account in May 2002, ie well after the January offences.  I consider that these offences could properly be regarded as manifestations of the one course of criminal conduct of use of Mr Falzon’s identity so that it could have been accepted that the notional sentences would have been ordered to be served concurrently. 

4. Offence 34 was of a similar kind to offences 24, 25 and 26.  It involved the obtaining of goods by a false pretence to a financier.  It was committed approximately four months after offences 24, 25 and 26, and involved different conduct from that involved in offences 27 to 33.  In my opinion, the sentence for offence 34 would not appropriately be ordered to be served concurrently with those offences.

5. Had the sentencing Judge treated some of the sentences as being appropriate to be ordered to be served concurrently, he would have had a different aggregate as a starting point.  In that circumstance, it may not have been necessary to apply any deduction for the principle of totality at all.  Alternatively, a lesser reduction on account of the principle of totality may have been appropriate.  It may be that allowing for concurrency of sentences but not making any deduction for the principle of totality will produce a result which is not markedly different from the sentence of imprisonment determined by the sentencing Judge but it will, in my opinion, produce the result that a different sentence should have been passed.

   Grounds 6 and 7

6. These two grounds of appeal alleged that a number of the notional sentences fixed by the sentencing Judge were excessive.  As the appellant is to be re-sentenced for these offences, it is inappropriate for this Court to determine these complaints.  I repeat that the Judge who re-sentences the appellant should not, in the exercise of the sentencing discretion, be constrained by the notional sentences fixed by the sentencing Judge.

   Imposition of Fines

7. The sentencing Judge imposed fines totalling $1,800 in respect of nine of the offences.

8. The appellant contends that the imposition of those fines was contrary to s 13 of the Sentencing Act which provides (relevantly) that the Court must not make an order requiring a defendant to pay a pecuniary sum if the Court is satisfied that the means of the defendant, so far as they are known to the Court, are such that the defendant would be unable to comply with the order or if compliance with the order would unduly prejudice the welfare of dependants of the defendant. Although the victims of the appellant’s crimes had applied for compensation, the sentencing Judge held that he was unable, by virtue of s 13 of the Act to award compensation because “there is no real prospect of the defendant being able to comply with such an order”.  The sentencing Judge accepted that in view of the long term of imprisonment he imposed, and the appellant’s lack of resources, the appellant did not have the means to satisfy an order for compensation.

9. As the sentencing Judge was satisfied that the appellant lacked the means to pay compensation, he should also have been satisfied that the appellant lacked the means to pay a fine, thus making it inappropriate for fines to be imposed.  I consider therefore that the sentencing Judge was in error in imposing the fines.  A different sentence should have been imposed in respect of those offences for which the fines were imposed.

   The Licence Disqualifications

10. In respect of the two offences of illegal interference with a motor vehicle (numbers 4 and 18) the sentencing Judge ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months.  These periods of disqualification were made cumulative and the Judge ordered that the period of disqualification should commence “at the date the defendant is paroled”.  A number of complaints were made about this order. 

11. First, it was submitted that it was not open to the sentencing Judge to make the periods of disqualification cumulative.  The appellant relied upon the decision of Olsson J in Valenzuela v Police (1998) 70 SASR 275. However, in Police v Nowak [2000] SASC 82; (2000) 76 SASR 551, the Full Court held that s 169A of the Road Traffic Act 1961 did permit cumulative periods of disqualification to be imposed. Although the Full Court did not refer to the decision in Valenzuela, its decision on the construction of s 169A of the Road Traffic Act should be followed.

12. The appellant also submitted that the making of an order that the licence disqualifications commence on the date on which he is released on parole was beyond power, uncertain and, in any event, oppressive.

13. The appellant’s first submission involves the construction of s 169A of the Road Traffic Act, which provides that a Court may order a period of disqualification to take effect “from a day or hour subsequent to the making of the order”. The Court does not otherwise have power to order that a period of disqualification commence prospectively. It was submitted that s 169A does not authorise a prospective day to be identified by reference to an event, or the happening of an occurrence, such as in this case, the appellant’s release on parole. It was submitted that the day to which s 169A refers should be fixed by reference to the calendar and the hour by reference to the clock. I consider that there is force in this submission.

14. In my view, the phrase “from a day or hour” does suggest that the section contemplates that the time will be set by reference to a moment in time.  The usual way in which moments in time are identified is by use of the calendar and clock.

15. However, it is unnecessary to express a concluded view about the proper construction of s 169A because I consider that the appellant is correct in his submission that the period of disqualification in this case is to commence at a time which is uncertain, and is in any event, inappropriate in the circumstances of this case. The disqualification in this case is expressed to commence from the day upon which the appellant is paroled. That is an event which may, theoretically at least, never happen; it is possible that the appellant could spend the entire period of whatever sentence of imprisonment is imposed in custody. Furthermore, any release on parole could, in theory at least, occur at any time from when the appellant first becomes eligible for parole until the expiration of the head sentence.

16. The fixing of a date for the commencement of a licence disqualification by reference to an event also creates uncertainty for the enforcement of the disqualification  In this case, in order to determine whether the appellant was disqualified on a given day, inquiries would need to be made as to the date upon which the appellant was actually released on parole.  That will be a matter of record but the information may not be readily available to the police or to the appellant.  The potential difficulties associated with ascertaining whether the appellant is disqualified from driving, are avoided if the Court specifies a date by reference to the calendar.

17. It is possible, under s 168 of the Road Traffic Act, for the Court to order that an offender be disqualified from driving “until further order”.  Given the appellant’s appalling record, that is an option which could have been considered in this case.  Such an order would enable the suitability of the issue of a licence to drive to be considered at the time when the appellant sought to exercise that privilege.

18. I also think that there is some substance in the submission as to oppression.

19. It is likely that the appellant will serve a lengthy term of imprisonment.  It is to be hoped that by the time of his release, rehabilitation will have occurred.  It would be oppressive and possibly not conducive to the appellant’s further rehabilitation, in my opinion, in the circumstances of this case, to require the appellant to commence another period of penalty upon his release from prison.  It may also interfere with his continued rehabilitation when released.  It would be preferable to allow the appellant, subject to whatever conditions may be imposed as a term of the parole (if granted), to commence the service of the period of the parole without being subject to further restrictions in respect of offences committed many years before that parole.

20. Accordingly, I consider it appropriate to set aside that part of the sentencing Judge’s order which required the periods of disqualification to commence upon the date upon which the appellant was paroled. 

    Grounds 5 and 15:  Sentencing Remarks and the Pronouncement of Sentence

21. These two grounds can conveniently be considered together. 

22. Ground 15 complains that the sentencing Judge sentenced the appellant without expressly stating, in Court, the sentences which were being imposed. It emerged, during submissions, that this ground was based on the misconception that the individual notional sentences used by the Judge to reach his ultimate sentence were sentences which had actually been imposed. I have referred to this misconception above. What was necessary was that the sentencing Judge pronounce his single sentence of imprisonment fixed pursuant to s 18A of the Sentencing Act and the other sentences involving fines and disqualification. The sentencing Judge did this. There is, accordingly, no substance in Ground 15.

23. Ground 5 complained of the adequacy of the sentencing remarks.  The sentencing Judge adopted the technique of pronouncing in Court the sentence which he was imposing, and at the same time, publishing written reasons for those sentences.  The reasons extended over five pages and the sentencing Judge attached to those reasons three long schedules containing a brief description of each offence, the applicable maximum or minimum penalty, and the date of first entry of a guilty plea.  Given the large number of offences, this was, in my opinion, a sensible technique for the Judge to adopt.

24. Nevertheless, it was complained that the reasons did not include any or sufficient assessment of the offending in each case, the circumstances in which that offending occurred, the gravity of the offending, the reasons why imprisonment was appropriate, and the reasons for the accumulation of the sentences.

25. Section 9 of the Sentencing Act requires a court sentencing a defendant who is present in court to state its reasons for imposing the sentence and to cause an explanation of the legal effect and obligations of the sentence to be given in simple language to the defendant.

26. Quite apart from this statutory obligation, it has been held that a sentencing Judge should give, at the least, brief reasons for the sentence being imposed, including disclosing the process of reasoning which led to that sentence.[6]  But generally, it has not been thought that a failure of a sentencing Judge to give sufficient reasons constitutes a ground by itself for setting aside or interfering with a sentence.[7]

    [6]R v Nevermann (1989) 43 A Crim R 347; R v Spreitzer (1991) 58 A Crim R 114 at 120; Cross v Police [2001] SASC 47 at [20]-[30].

    [7]        Shrubsole v Rodriguez (1978) 18 SASR 233.

27. The nature and extent of the reasons of a sentencing Judge must, to a significant degree, be determined by the circumstances of the case before him.  The reasons should not be so long, or complex as to be difficult for the defendant to follow in any event.   Where a Judge is sentencing for many offences, what can be said about each will often have to be restricted in order to prevent the reasons becoming cumbersome or lacking in utility.  In the present case, the sentencing Judge had to engage in a complex sentencing process involving multiple offences.  It is unrealistic to expect that the Judge should have addressed each individual offence, speaking to the circumstances in which it occurred, its gravity and giving detailed reasons for the notional sentences he was using.  In this case, it had been accepted, on behalf of the appellant, that the sentence of imprisonment was inevitable.  The criminality and gravity of the offending was obvious.  It may well be that the sentencing Judge could have done more, in a general way, by way of identifying particular sentencing considerations which influenced him.  This might have been done, for example, by reference to particular groups of offences and, in some cases, (eg offences 27 to 33) by reference to the course of conduct which those offences involved.

28. The sentencing Judge did refer to a number of matters which influenced him, including the long history of offending, the issue of sexual abuse of the appellant when younger, the material which he had read and relied upon, the appellant’s personal circumstances and history, the absence of violence in the appellant’s history, Dr White’s opinion that the appellant was at risk of re‑offending, the aggravating circumstances of several of the offences having been committed whilst the appellant was on a bond, and his view that a substantial term of imprisonment was called for because of the nature of the offending.

29. Given the complexity of this sentencing task, and the matters identified above, I would not be prepared to find that the sentencing process miscarried simply because the sentencing Judge did not go further and address remarks to particular offences or groups of offences.

    Power to Remit to the District Court for Re-sentence

30. Since 1 September 2004, the Court of Criminal Appeal has had the power, pursuant to s 353(4)(a) of the Criminal Law Consolidation Act 1935, where it thinks that a different sentence should have been passed, either to quash the sentence and to substitute the sentence which it thinks ought to have been passed, or alternatively, to quash the sentence and to remit the matter to the District Court for re-sentencing.

31. In the present case for the reasons given, I am satisfied that the sentencing Judge has made some errors in sentencing.  Some of those errors if corrected would result in a different sentence being passed.  In the case of other errors, I am satisfied that a different sentence may have been passed.  Accordingly, the discretion to remit the matter to the District Court for re-sentencing is enlivened. 

32. In view of the large number of offences for which the appellant has been sentenced, and the complexity of the sentencing task, I consider that it is appropriate in this case for the matter to be remitted to the District Court for re-sentencing.  That conclusion makes it both unnecessary, and inappropriate, to consider the remaining grounds of appeal.