R v Caplikas

R v CAPLIKAS
[2002] SASC 258
Court of Criminal Appeal: Perry, Williams and Gray JJ

PERRY J. The Crown applies for leave to appeal against the sentence imposed upon the respondent on the ground that it is manifestly inadequate. In accordance with the usual practice, the Court heard the argument as to the application for leave to appeal and as to the substantive merits of the appeal, together.
I am indebted to Gray J for his exposition of the circumstances surrounding the offending and other matters relevant to the sentencing of the respondent. It is unnecessary for me to add anything further as to those aspects of the matter.
However, I regret that I am unable to agree with the order which he proposes.
Instinctive Synthesis
Authority binding on this Court does not support the use of this approach to sentencing in this State.
The phrase “instinctive synthesis” has generally been used in contrast with the “two-stage approach” to sentencing.
Pursuant to the two-stage approach, the sentencing judge first determines what is considered to be an appropriate sentence, without reference to specific mitigating factors such as a plea of guilty. From that starting point, the court then allows a specifically identified reduction by reference to a plea of guilty, expression of remorse or the like.
The two-stage approach has come under criticism by courts in a number of jurisdictions of Australia, and also by some of the Judges of the High Court.
In Wong,[1] in their joint judgment, Gaudron, Gummow and Hayne JJ said:
“That kind of approach, usually referred to as a ‘two-stage approach’ to sentencing, not only is apt to give rise to error, it is an approach that departs from principle.”
[1] (2002) 185 ALR 233.
They went on to point out that the weight of authority in the intermediate appellate courts of Australia was against adopting the two-stage sentencing process.
Rather, they favoured the process described as “instinctive synthesis”, that is, a process representing “the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process”.[2] They concluded:
“So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attributes specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.”[3]
[2] R v Williscroft [1975] VR 292 at 300 (Victorian Full Court).
[3] Ibid para 76.
Despite the strength of that criticism, it was a criticism voiced by only three out of the six judges who sat in Wong.[4] It is, however, true that in another case, AB v R,[5] McHugh J, who did not sit in Wong, had previously expressed a strong view against the “two-stage approach” and clearly favoured the “instinctive synthesis” approach.
[4] Gleeson CJ confined himself to dealing with the “guidelines” which had been adopted by the Court of Criminal Appeal of New South Wales. Kirby J did not agree with the criticism of the “two-stage” approach. He said (ibid para 102):
“... it would be a retrograde step to subsume the adjustments which the law requires to be taken into account in sentencing by a ‘return to unexplained judicial intuition’. Greater transparency and honesty are the hallmarks of modern public administration and the administration of justice. In sentencing we should not turn our backs on these advances.”
The remaining judge, Callinan J, did not address this aspect of the matter.
[5] (1999) 198 CLR 111 at para [15] page 121.
In R v Powell,[6] I took the view that having regard to the various opinions which had been expressed in the High Court on the matter, the two-stage approach should be regarded as erroneous in principle. However, I was in the minority in expressing that view. Prior and Besanko JJ in that case held that the long-established practice in this State of identifying the reduction for a plea of guilty should be adhered to.
[6] (2001) 81 SASC 9.
In Powell, Prior J, with whom Besanko J agreed, said:[7]
“I do not accept that the views expressed by three of the six justices who heard the appeal in Wong establish that a two-stage approach to sentencing is wrong in principle. Until the High Court expressly decides otherwise, in this State sentencing judges should indicate as far as possible and wherever possible, the extent of the discount given for a plea of guilty.
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The practice and policy with respect to identifying a discount for the matters referred to by the sentencing judge have not yet been shown to be wrong in principle by a binding decision of the High Court. Debate on the question whether sentencing should return to the so-called instinctive or intuitive synthesis approach remains to be ‘reserved to an appeal where an answer is essential’.[8] Even then, it may be argued with some force that the identification of a specific discount for a plea of guilty is not inconsistent with that approach.”
[7] Ibid paras 21 and 24.
[8] Kirby J, Wong at [102].
Against that background, earlier this year, in R v Place,[9] a court of five judges, presided over by Doyle CJ, considered the implications for South Australia of the decision of the High Court in Wong, not only as to the legitimacy of “guideline judgments”, but also as to the question whether or not the two-stage approach should continue to be applied in this State.
[9] (2002) 81 SASR 395.
In the joint judgment of Doyle CJ, Prior, Lander and Martin JJ, with which Gray J agreed, the history of the “instinctive synthesis” approach to sentencing was discussed at length. A number of authorities on the matter in other jurisdictions were considered, particularly the decision of the Court of Criminal Appeal of New South Wales in R v Thomson,[10] which was a decision of a court of five judges presided over by Spigelman CJ.
[10] (2000) 49 NSWLR 383.
The court also had regard to the then recent decision of the High Court in Cameron.[11] That case concerned an appeal from the Supreme Court of Western Australia, which in turn dealt with provisions to be found in the Western Australian sentencing Act, relating to a system known as the “fast track system”, and the related question whether there should have been a greater reduction in the penalty imposed in that case by virtue of the appellant’s plea of guilty, having regard to his utilisation of the “fast track system”.
[11] (2002) 187 ALR 65.
There is nothing in the decision of the High Court in Cameron (supra) which is in conflict with the decision of the Court of Criminal Appeal in Place, or which could give rise to any doubt as to the correctness of the principles enunciated in that case.
In the course of the joint judgment delivered in Place, the following passage appears:
“79Before leaving Cameron, it is appropriate to note the significance of the decision in the context of whether it is permissible to identify a specific reduction for a plea of guilty. In observations with which we respectfully agree, Kirby J repeated his views about the need for transparency and for identification of the extent of a reduction for a plea of guilty. In addition, although s 8 of the Western Australian Sentencing Act does not require a sentencer to state the extent of a reduction for a plea of guilty, it is the practice in Western Australia to identify the specific reduction and the sentencing judge in Cameron followed that practice. There is no suggestion in the joint judgment or the judgment of McHugh J that the practice or the approach of the sentencing judge was wrong in principle or undesirable.”
In the joint judgment in Place, the court goes on to reject the instinctive synthesis approach, and approved the ongoing applicability in South Australia of the two-stage approach (as it has been understood in this jurisdiction) involving a specific reduction for a plea of guilty. See the following passage in the joint judgment:
“80 The ‘mathematical’ two-stage approach with which the High Court was concerned in Wong is not the process which has been approved and adopted in South Australia with respect to reductions for pleas of guilty. The views expressed in the joint judgment concerning the two-stage approach, and in particular the example given with respect to identifying a reduction for a plea of guilty, were not the views of a majority. In our opinion this Court is not constrained by authority to hold that the existing practice in this State is wrong. In our view, the current practice is consistent with the requirements of s 10 of the Sentencing Act and conforms with sentencing principles. The failure to identify a specific reduction is not an error of principle nor, in itself, is it a ground for interference with a sentence. Significantly, the South Australian practice does not detract from the requirement that sentencing courts take into account all relevant matters related to the offence and the offender. The practice does not give rise to any distortion of the sentencing process or invite error. It does not interfere with the important consideration of proportionality. The fears expressed by McHugh J in AB and in the joint judgment in Wong have not come to fruition in the 10 years that the practice has existed in this State.
...........
82The system is fair and practical. It has worked well in practice for a number of years. In our opinion, it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the court has departed from its present practice. An explanation for the departure based on describing the sentencing process as an instinctive synthesis would be greeted with scepticism.
83For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of the reduction, the current practice of taking into account the timing of the plea, contrition, co-operation with and assistance to the authorities should continue. We emphasise that in taking into account any subjective considerations, sentencing courts should not ignore those subjective considerations to the extent that they are relevant to other aspects of the sentencing task.”
Sentencing for Multiple Offences
Neither the so-called instinctive synthesis process nor the two-stage process in sentencing specifically relate to the task confronting a sentencing judge when called upon to sentence for multiple offences. Other considerations bear more particularly upon that situation, namely the circumstances in which it is appropriate for sentences to be made concurrent or cumulative, the principle of totality, as it is sometimes called, and the power more recently given to the courts pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 to fix a single penalty where a person is found guilty of a number of offences.
In Place, the appellant pleaded guilty to six offences of armed robbery and four of failing to comply with a bail agreement. As well, he asked that three offences of illegal use and two of threatening with a firearm be taken into account.
The learned sentencing judge in Place, after acknowledging that armed robbery of the kind there in question “normally attracts a head sentence of six to eight years”, went on to indicate that for the six offences of armed robbery, together with the other offences upon which the appellant stood to be sentenced, he would start with a head sentence of 32 years imprisonment. By reference to the principle of totality, he reduced that to what he described as “an appropriate starting point” of 22 years imprisonment. He then gave credit for co-operation with the authorities, the plea of guilty and the appellant’s contrition, as a result of which he determined that the effective head sentence should be 12 years, reducing to 11 years and 6 months after allowing for six months already spent in custody.
In the course of the joint judgment in Place, the court referred to a number of authorities in which the principle of totality had been discussed and considered, notably the decisions of the Court of Criminal Appeal in Knight[12] and Rossi,[13] and the decisions of the High Court in Mill v The Queen[14] and Postiglione v The Queen.[15]
[12] (1981) 26 SASR 573.
[13] (1988) 142 LSJS 451.
[14] (1988) 166 CLR 59.
[15] (1997) 189 CLR 295.
By reference to the principles which the court considered should properly be drawn from those authorities, it concluded that the learned sentencing judge in Place had erred in applying the principle of totality to the provisional sentence before taking into account circumstances of mitigation, including the plea of guilty. The court concluded:
“111In 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 at 676-681.
112Generally speaking, where a number of offences are committed over a period of time, there is justification for imposing greater penalties for the later offences. However, in the particular circumstances of this matter, we would fix the same penalty for each offence of armed robbery.
113Bearing in mind the criminality of the conduct involved in each offence and the matters of mitigation, but before allowing for the plea of guilty coupled with contrition and co-operation, in our opinion a sentence of five years and six months would be appropriate for each crime. By reason of the appellant having volunteered his guilt, contrition and the plea of guilty at the earliest opportunity, we would reduce that sentence to three years and 10 months.
114Although the offences were committed over a relatively short period of time, they were separate incursions into crime. Generally speaking, therefore, accumulation of the sentences would be appropriate. By this process a total of 23 years is reached. However, considerations of totality would lead us to adjust the period downward. In making an adjustment by reason of totality, regard should be had to the other offending to which the appellant pleaded guilty and which he asked be taken into account. In our view, a single sentence of 12 years would be a moderate sentence. We see no reason to disagree with the further deduction of six months given by the sentencing judge to reflect the time spent in custody and on home detention bail.” (emphasis added)
From the process which was followed in Place, certain general conclusions may be drawn:
Even although offences may be committed over a relatively short period, if they represent “separate incursions into crime” an accumulation of the sentences is generally appropriate.
Even if there is ultimately an intention to invoke the power to impose one penalty under s 18A, the court should first aggregate whatever individual sentences appear appropriate to each crime, as to which in each case there should be an indication of the specific deduction being allowed with respect to a plea of guilty.
The principle of totality is to be brought to bear only after the process of aggregating the sentences has been effected.
In approaching the matter in that way, the Full Court of five judges in Place followed and applied the principles to which expression was given in the earlier decision of a three-bench Court of Criminal Appeal, over which Doyle CJ also presided, in Major.[16]
[16] (1998) 70 SASR 488.
In Major, the respondent pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary, the offences having been committed over a ten year period. In that case the Court of Criminal Appeal followed the same approach as that to which expression was given in Place, namely by initially assessing each offence separately and attributing a notional sentence to each offence, after making allowance for relevant mitigating factors, and then accumulating the individual sentences so determined. Finally, the sentence was reviewed in light of the totality principle.
Importantly, in Major, the court specifically held that s 18A of the Criminal Law (Sentencing) Act 1988 does not replace the existing law relating to multiple offences, whether they be concurrent or cumulative, for the purpose of arriving at a total head sentence. So much is clear from the following passage in the judgment of Olsson J in that case:[17]
“As was pointed out by Legoe J in R v Nixon, the discretion as to whether or not to resort to the imposition of a single sentence for relevant multiple offences, as authorised by s 18A of the CLSA, is unfettered. However, that section is not a substitution for, and does not 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 the same case Doyle CJ observed:[18]
“I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.”
[17] Ibid 497.
[18] Ibid 490.
The approach approved in Major and reaffirmed in Place is a transparent process which makes it clear that the criminal law does not regard it as proper to allow any discount for “quantity”, except to the extent that a merciful reduction in the total sentence by reference to the principle of totality may sometimes be called for in order to avoid a crushing sentence.
As for cases such as AB v The Queen (supra), where there were 67 offences for which the defendant was to be sentenced, such cases will almost always constitute a course of offending for which a substantial degree of concurrency will be appropriate. In cases of that kind, it will be sufficient to indicate the order of sentence appropriate to each offence; grouping the offences together where the same sentence is appropriate, to indicate whatever specific discount should be allowed for any plea of guilty; and then to indicate the degree to which the sentences will be directed to be served concurrently, so as to make clear the process by which the total head sentence is arrived at.
The Sentence Imposed in this Case

It follows that in my view, the manner in which the learned sentencing judge in this case went about the process of determining the sentence to be imposed was in accordance with correct principles, with the qualification that it might have been better if the reduction for the plea of guilty, co-operation, contrition and remorse, had been made with respect to each of the individual sentences rather than being applied to the provisional total of 34 years and 9 months.
However, if one has regard to the individual sentences, as opposed to the process which was followed, in my view, there is much to be said for the argument presented by Ms Davison, who appeared for the DPP, that some of the individual sentences which went into the calculation of 34 years and 9 months were less than that which might properly have been imposed.
For example, the sentence of 9 years imposed for the Brighton offence of armed robbery, attempted rape and indecent assault committed on 15 September 2001 might be thought to be substantially too low. Those offences were committed when the respondent was armed with a gun. Given that the offences were committed on a vulnerable victim, a young woman alone in a shop, the armed robbery alone should have attracted a sentence towards the upper end of the established sentencing standard of 6 to 8 years.
But as this is an application by the Crown for leave to appeal against sentence, not without some hesitation, I would be prepared to review the sentence under appeal, by commencing with the same aggregate starting point as that reached by the learned sentencing judge, namely 34 years and 9 months.
However, it seems to me that the deductions made by the learned sentencing judge in the first place with respect to the plea of guilty and co-operation with the authorities, and the further reduction made by reference to the principle of totality, have resulted in a final sentence which falls so far short of what is appropriate, having regard to the total criminality involved, as to call for intervention by this Court. In expressing that view, I allow for the heavy onus on the Crown in appeals of this kind.[19]
[19] See, for example, R v Osenkowski (1982) 30 SASR 212 and R v Everett (1994) 181 CLR 295.
It is necessary, therefore, to reconsider the sentence.
Given that this is a Crown appeal, I have approached the reconsideration of the sentence on the basis of the lowest penalty which could be imposed, having regard to proper sentencing principles.
I would reduce the starting point of 34 years and 9 months to a term of 26 years by reference to the plea of guilty, co-operation with the authorities, contrition and remorse.
I realise that this represents a discount of 25%, whereas the appellant did not disagree with the learned sentencing judge’s discount of 30%, but in the circumstances I am of the view that the discount I have indicated is appropriate.
I would further reduce that total to 20 years by reference to the principle of totality.
In the particular circumstances of the case, I would not deduct anything further by reference to the 4 months spent in custody before the sentence was imposed.
I would grant leave to the DPP to appeal. I would allow the appeal and quash the sentence under appeal.
I would substitute a sentence of 20 years against which I would fix a non-parole period of 10 years, both to date from the date upon which the respondent was sentenced in the District Court, that is, from 14 May 2002.
WILLIAMS J. I agree with orders proposed by Perry J for the reasons given by him.
GRAY J. This is a Crown application for leave to appeal against sentence on the grounds of manifest inadequacy. The application for leave and the substantive argument were heard together.
The respondent Matthew John Caplikas pleaded guilty to armed robbery, attempted rape and indecent assault committed on 15 September 2001, armed robbery, assault with intent to rape and indecent assault committed on 18 September 2001, assault with intent to rob and armed robbery committed on 13 October 2001, illegal use of a motor vehicle committed on 13 October 2001, armed robbery and attempted rape committed on 16 October 2001 and receiving committed on 25 and 29 October 2001[20].
[20] The maximum penalty for armed robbery and for assault with intent to rob is imprisonment for life. The maximum penalty for attempted rape and assault with attempt to rape is imprisonment for 12 years. The maximum penalty for indecent assault is imprisonment for eight years. The maximum penalty for a subsequent offence of illegal use of a motor vehicle, is imprisonment for between three months and four years. For receiving the maximum penalty is imprisonment for eight years.
The learned sentencing judge sentenced the respondent to 15 years and eight months imprisonment. He fixed a non parole period of seven years and eight months. Both the head sentence and the non parole period commenced on the date of sentencing. The judge had regard to the four months during which the respondent had been in custody on remand. The respondent was disqualified from holding or obtaining a driver’s licence for 12 months.
Approach to Crown Appeals
In The Queen v Wilton[21] King CJ addressed Crown appeals and observed:
“A prosecution appeal, like a convicted person’s appeal, against sentence, is a challenge to the exercise by the sentencing judge of the discretion vested in him to determine the appropriate sentence within the limits prescribed by law. The principles upon which an appellate court will interfere with the exercise of a judicial discretion are well settled. There will be no such interference unless the exercise of the discretion has miscarried by reason of some relevant mistake of law or fact or by reason of the judge taking into account some extraneous factor or failing to give any or adequate consideration to a material factor. If the sentence is manifestly disproportionate to the crime considered in the light of all the relevant circumstances, the appellate court will infer that the exercise of the sentencing discretion has miscarried in some way although the precise error cannot be identified. The appellate court does not, however, interfere because it considers that the sentence is more severe or less severe than the judges of the appellate court would have imposed. An appeal against sentence by the prosecution, moreover, raises considerations which are not present in an appeal by a convicted person. These are expressed by the Full Court of the Federal Court of Australia – General Division in Reg. v. Tait and Bartley in a passage with which I respectfully agree:
‘A Crown appeal puts in jeopardy ‘the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal’ (per Isaacs J, Whittaker v R.) ... The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.’”
[21] (1981) 28 SASR 362 at 363
In The Queen v Osenkowski[22] King CJ further observed:
“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
[22] (1982) 30 SASR 212
In Everett v The Queen[23] the High Court emphasised that the jurisdiction to grant leave to the Crown to appeal against sentence should be exercised only in the rare and exceptional case. The issue of whether leave should be granted must be considered as a ‘distinct matter’. When determining whether the Crown has discharged the onus, the court should be guided by the remarks of Barwick CJ in Griffiths v The Queen[24]:
“... an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
In their joint judgment in Everett the majority commented:
“The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’.”
[23] (1994) 181 CLR 295 at 299 and 300
[24] (1976-1977) 137 CLR 293 at 310
In Police v Cadd[25] Doyle CJ considered that there was no difference in substance between what was said in Everett and the remarks in Osenkowski. However he noted a difference in emphasis introduced by the expression that leave should be granted only in “the rare and exceptional case”. Doyle CJ preferred the approach of McHugh J[26] in Everett but concluded:
“I would add, with respect, that to say, as the majority said in Everett (at 299) that there should be a grant of leave to the Attorney-General to appeal against sentence ‘only in the rare and exceptional case’ may make it difficult for a Court of Criminal Appeal of a State to perform its supervisory function when one bears in mind the many cases that may come before it.
Nevertheless, unless the High Court indicates otherwise I consider that this Court must apply the principle in Everett.”
[25] (1997) 69 SASR 150 at 159
[26] Kirby J expressed approval of McHugh J in Dinsdale v R (2000) 74 ALJR 1538 at [61-62]
Despite these differences in emphasis a Crown sentence appeal should only be allowed in the rare and exceptional case. Error needs to be clearly demonstrated or the sentence must be so disproportionate to the seriousness of the crime as to shock the public conscience. On the hearing of this application counsel for the Crown accepted this and submitted:
“The Crown clearly accepts that leave should only be granted in exceptional and rare cases; that leave should not be granted merely to correct an error but, rather, to ensure that adequate standards are maintained.”
The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R [27]. Gleeson CJ and Hayne J said at [3-4]:
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”
[27] (2000) 74 ALJR 1538
Circumstances of the Offending
On 15 September 2001 the respondent entered a women’s clothing shop in suburb A. Wearing a balaclava and holding a gun[28] he approached the female shop assistant. He pushed her into a room at the back of the shop and made her sit on the floor. He pushed her to the front door which she locked on his instruction and then to the back room. He bent her over a table and demanded money. He then pushed her to the counter and took about $370 from the cash register. He pushed her into the back room again where he put her on a table and tried to climb on top of her. He removed her pants and underclothing. The table broke and both he and the assistant fell to the floor. He then pushed her over a chair so that her back was facing him and he attempted to penetrate her vagina with his penis. His fingers were touching her vaginal area. He threatened to hurt her if she did not co-operate. He pushed her to the front counter. He pushed her head towards his penis and demanded that she put it into her mouth. She refused and he forced her to masturbate him. He ejaculated onto her hand and threatened to kill her husband who was due to call for her. When her husband knocked on the door the respondent told the shop assistant to unlock the door and he left.
[28] The gun was real but had been disabled from use. However this was not known by the victims.
On 18 September 2001 the respondent entered a bridal wear shop in suburb B. He was wearing a balaclava and holding a gun. He made repeated demands for money from the two female proprietors and eventually took $300. One of the women was in the back room of the shop. Still holding the gun the respondent took hold of her and a struggle ensued. He then returned to the front of the shop, put his hands on the other proprietor’s hips and attempted to put his hands in the front pockets of her pants. He then made her kneel and instructed her several times to remove her pants. She declined to do so. The respondent returned to the back room and held on to the other proprietor. She broke free and left the shop after a further struggle.
On 13 October 2001 the respondent entered a women’s clothing shop in suburb C. He had been to the shop earlier that day. He was wearing a balaclava and holding a gun. The female proprietor was in the change room with a customer. The respondent pointed the gun at her and approached. Both women screamed and locked themselves in the change room. The customer rang police on her mobile telephone. The respondent then left that shop and entered a pizza bar a short distance away. He pointed the gun at the sole female assistant and demanded money. He threatened to hurt her if she did not co-operate. The respondent took $200 from the cash register. He then grabbed her and attempted to drag her out the back. She pushed him away but he grabbed her again. She pushed him away and threw a chair at him. He then left. That evening the respondent stole a motor vehicle from a hotel in suburb C. The vehicle was used to commit the subsequent armed robbery. It was recovered three days later.
On 16 October 2001 the respondent entered the clothing shop that he had previously robbed in suburb B. The female proprietor and a female customer were present. The respondent was wearing a balaclava and holding a knife. He directed the proprietor to obtain money from the back room. He instructed the customer to lie on the floor which she did. He made more demands and took money from the proprietor’s bag and purse. He menaced the customer with the knife and demanded money from the cash register. He took approximately $300 and then instructed the customer to hand over her bag. He directed her to another room and told her to lay face down. He then placed the knife next to her neck, ripped off her pants and attempted to penetrate her vagina with his penis.
On 25 October 2001 the respondent pawned compact discs and a walkman at Cash Converters Morphett Vale. He falsely stated that he was the owner of the property. He received $130 when the true value of the property was $1,821.00 The property had been stolen earlier that day from Hallett Cove. On 29 October 2001 the respondent again pawned compact discs, clothing and electrical items at Cash Converters Brighton. He falsely stated that he was the owner of the property. He received $135.00 when the true value was $4, 459.00.
The Injury Loss and Damage resulting to the Victims
The respondent’s criminal conduct caused considerable distress to his victims. A number of victim impact statements were tendered and revealed the varied effects of the crimes. The statements included the following:
“I suffered from nightmares which were very frightening as I was always trying to escape a situation where I was a victim. I had many sleepless nights and this would disrupt my husband as well. I have lost five kilograms and my appetite since the crime happened. I can’t close my eyes in the shower. I’m scared something will happen. My work environment used to be very relaxed and happy. Now it is tense and strained. The doors are locked at all times which makes customers feel suspicious and uncomfortable. They will turn away from the door thinking we are closed but I don’t feel safe and secure leaving the door unlocked. When a man is at the door I freeze and question his motives. Customers cannot have freedom in the store and have to request when to leave which makes them feel threatened…”
and
“The day the crime happened I thought that both my partner and myself were going to be either killed or raped. The defendant had touched my body. This has made me feel dirty and disgusted. This has left me with many emotions. I have been feeling withdrawn, fatigued, affected by headaches, distance from others, anger and sadness. The vision of the defendant standing in our shop with his balaclava and gun pointing towards me will always have an effect on my life. Our business has always had a happy and relaxed atmosphere for staff and customers. I fell very nervous and anxious in the shop now. We have our doors locked at all times and don’t have freedom anymore. I also feel very insecure in my home now. ”
The Respondent’s Antecedents
The respondent was aged 20 years at the time of the offending. His formative years were unsettled after his parents relationship broke down when he was an infant. He did not see his father until he was aged 8 years. He lived with his mother who is now aged 38 years. She had serious alcohol and drug problems. She engaged in criminal conduct in furtherance of her addictions. This included the sale of marijuana.
The respondent was involved in his first sexual experience at the age of 12 years when a 16 year old female babysitter and neighbour engaged him in sexual activity. The respondent said that this occurred on a number of occasions.
The respondent’s mother had a succession of boyfriends and boarders. One of his mother’s friends sexually abused the respondent when he was aged 13 years. He later became the respondent’s mother’s boyfriend and moved in with her. The sexual abuse was a regular feature of the respondent’s life and lasted for approximately 18 months. This man used intravenous drugs and would take the respondent on car stealing escapades.
The respondent then went to live with his father. However he had difficulty adjusting to the change of lifestyle and the strictness of the regime. When his father and stepmother travelled overseas for some weeks the respondent was to be supervised by his grandfather. However he had an alcohol problem and gave the respondent little attention. During this time the respondent “borrowed” one of his father’s vehicles and drove it around until he crashed. He did this with two further vehicles whilst his father was away. Following his father’s return an argument ensued and the respondent moved back with his mother. At this time the boyfriend who had abused him had left.

The respondent’s schooling was disrupted and unsettled. He attended a number of schools but never for more than one year at a time. These schools included Ferryden Park Primary school, Modbury High school, Seview High school, Hamilton College and Marden Senior College. He experienced difficulty reading and writing. Academically he was below average. He was a frequent truant. He encountered trouble at school when he was caught selling and smoking cannabis. He stole drugs from his mother. He was suspended for drug related activities. However he passed two terms of year 11 whilst in Cavan Youth Training Centre.
The respondent’s life has for the most part lacked structure and discipline. He was reared in a chaotic environment where illicit drug use was always present. He began smoking cigarettes at age 12 and marijuana soon after. He used amphetamines and trips from age 14 or 15. Many parties were held at his mother’s home and he was encouraged to partake in alcohol and drug use in the same way as the adult party goers. At aged 16 he commenced using heroin as he was living with a heroin addict at the time. The respondent’s drug abuse continued. He developed an addiction to amphetamines and marijuana. The only time he abstained from drugs was during the year 2000 when he participated in the Drug Court program.
The respondent’s criminal antecedents dated back to 1996 when he was aged 14 years. His first custodial experience was at age 16, shortly after he moved back with his mother. During 1996 and 1999 his offending involved primarily driving offences which included driving without a licence, driving uninsured, driving disqualified, giving a false name and address, failing to truly answer questions and a number of instances of using a motor vehicle without consent. The respondent said that he would steal cars and then sell them to obtain money for drugs. Cannabis related offences were also committed. The penalties imposed on the respondent included periods of licence disqualification, suspended sentences and periods of detention. During 2000 he continued to commit the same kinds of offences. In addition he received a suspended sentence bond for a larceny, provided false information on a bail application and failed to comply with a bail agreement. He was fined throughout this period. Towards the end of 2000 he was admitted to the Drug Court Program. He was released on home detention under his father’s supervision. He was employed for six months and remained drug free for a similar period. However, he again found the regime too strict for his liking. In July 2001 the respondent was given a quantity of amphetamines in discharge of a debt owed to him. He used some of the drugs and this in conjunction with his renewed association with his drug using friends saw his drug abuse continue. The respondent began using a mixture of amphetamine, cocaine and heroin called ‘crank’. His counsel explained that he committed the current offences in order to obtain money quickly to satisfy his addiction. The current offending was the first involving violence and offending of a sexual nature. Neither the respondent nor his psychiatrist could explain the sexual component of the offending. The offences were committed whilst he was under supervision pursuant to the terms of a bond. The respondent has been in custody since 6 November 2001.
The respondent had no psychiatric history. However he said that he feared reprisals from other prisoners as a result of previous drug and other financial deals. In early 2002 he cut his wrists. He has been described as exhibiting antisocial attitudes and having an antisocial personality disorder. However the medical evidence supports the view that he has the potential to be usefully employed if he can reform his tendency for criminal behaviour.
The Approach of the Sentencing Judge
The judge remarked:
“For the offences which attract the penalty of imprisonment, I will impose a single term pursuant to s 18A of the Sentencing Act. However, as a first step in the determination of your sentence, I will group together such of the offences as represent a single and continuous course of conduct. Accepting that there must necessarily be an element of concurrence within each group, I will assign to each group a separate provisional cumulative period of imprisonment. I will also assign separate provisional cumulative periods to such of the other offences as attract the penalty of imprisonment. The result of the first step is as follows:
Armed robbery, attempted rape and indecent assault on 15 September 2001, nine years; armed robbery, assault with intent to rape and indecent assault on 18 September 2001, seven years; assault with intent to rob and armed robbery on 13 October 2001, seven years; illegal use of a motor vehicle on 13 October 2001, nine months and licence disqualification for 12 months; armed robbery and attempted rape on 16 October 2001, eight years; receiving on 25 October 2001, 18 months; and receiving on 29 October 2001, 18 months.
The total of these provisional periods is 34 years and nine months. I reduce that total by approximately one-third to 23 years for your pleas of guilty, cooperation with the authorities and contrition and remorse. I further reduce that total to 16 years to avoid a crushing sentence and to keep it within the bounds of the overall culpability of your conduct; to observe, in other words, the principle of totality. Finally, both the head sentence an the nonparole period will be reduced by four months to reflect the credit that you are entitled to receive for the periods that you have spent in custody on remand.
In the result, the order of the court is that you be sentenced to a single term of imprisonment of 15 years and eight months. I fix, with respect to that head sentence, a nonparole period of seven years and eight months. Both the head sentence and the nonparole period will date from today. There will be the mandatory order that you be disqualified from holding or obtaining a licence to drive for a period of 12 months.”
Issues on Appeal
Crown’s Submissions
Counsel for the Crown complained about the judge’s approach.[29] It was said that a “starting point” for each offence should have been fixed and then the head sentences for all offences totalled to give an ultimate provisional head sentence. The submissions included:
“... when one looks at the individual offences in relation to these matters, that the starting point is too low when one looks at, for example: the [suburb A] offences of an armed robbery, an attempted rape, indecent assault, occurring on a vulnerable witness, armed with a gun, that one would be looking, ordinarily, at a starting point for the armed robbery alone of in the range between six and eight years, as settled by Place. Given that it is not what one might call a street robbery towards the lower end of the range, one is looking towards the middle of the range.
If one does that on a mathematical basis, of course, it is about seven years which means, obviously, that for the aggravated attempted rape with a weapon and the indecent assault, there is an additional two years.
That starting point is too low. That flows through with the rest of the offences. Indeed, when one goes back to have a look, for example, at the two offences on 13 October at [suburb C] both of those offences, the assault with intent to rob, more particularly the armed robbery, having been sentenced to seven years for both of them as a starting point, is markedly low when one looks at Place.
The Crown’s submission is that in this case the starting point is too low. That given that the starting point, is as the Crown submits, too low, that has then coloured the rest of the case in relation to this matter.”
[29] R v Major (1998) 70 SASR 488
Counsel for the Crown submitted that with one exception the judge identified a provisional sentence appropriate for armed robbery when dealing with the group offences. It was contended that the judge failed to punish for the sexual offending and other matters of aggravation attaching to each group offence. The exception related to the offending in Suburb A where the Crown inferred that the judge had allowed two years imprisonment for the sexual offending in arriving at a provisional sentence of nine years. All provisional sentences were said to be manifestly inadequate. This was also said to be manifestly inadequate.
The Crown’s submission proceeded on the basis that the penalty for the offence of armed robbery had been “settled” by the court in R v Place[30] at six to eight years imprisonment. It was said that the armed robberies committed by the respondent were more serious than “street offences” and should therefore attract the mid range of seven years. This was said to be the appropriate starting point for each offence of armed robbery. Apart from submitting that two years was too low for the sexual offending in suburb A counsel for the Crown did not identify a provisional head sentence for the other sexual offending or for the offences of receiving and illegal use.
[30] (2002) 81 SASR 8
It was said that the judge’s provisional head sentence of 34 years and nine months was manifestly inadequate. No complaint was made with respect to the reduction of one third on account of the pleas of guilty[31]. However it was said that the reduction of seven years for totality was too great.
The Respondent’s Submissions
[31] “JUDGE:  What do you say about a third for the plea of guilty and so on? That is fairly substantial.
“COUNSEL FOR          It is substantial but it is warranted in this case. There was an indication of the pleas
THE CROWN:   of guilty at a very early stage in relation to this matter and the pleas have clearly avoided the need for these women to give evidence of a most distressing incident; so a third as a discount is an appropriate discount.”
Counsel for the respondent submitted that the judge had applied correct sentencing principles. It was said that the judge’s use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) was appropriate. No error of fact had been identified. The Crown’s complaint was in substance a complaint about the exercise of the judge’s discretion. In these circumstances the case could not be viewed as rare or exceptional. Finally it was said that the sentence imposed of 16 years with a non parole period of eight years did not shock the public conscience. It was pointed out that the sentence was fixed having regard to a one third reduction on account of the pleas of guilty, cooperation with the authorities, contrition and remorse. Counsel for the respondent emphasised that the respondent had prospects of rehabilitation. It was said that the application of the totality principle to avoid the sentence being crushing was an appropriate exercise of discretion.
The Approach to Sentencing
A majority of the High Court appear to favour the instinctive synthesis approach to sentencing. In AB v The Queen [32] McHugh J considered the question of the proper approach:
“To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases - where punishment, deterrence and protection dominate the process - such an approach almost always invites error. Statutory exceptions aside, the task of the judge ‘is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence’. If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. Instead of sentencing his embezzler, with this history, for taking this amount in these circumstances, consciously or unconsciously, the judge may determine the objective sentence by what is perceived to be appropriate for an embezzler who has taken a large (or small) amount of money in breach of trust. Abstraction replaces the convicted person’s circumstances in determining the appropriate sentence.
...
The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby, Street CJ said, correctly in my opinion, that the ‘determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements’. No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an ‘objectively’ determined sentence.”
[32] (1999) 198 CLR 111 at [16-19]. See also Hayne J at [119-121]
In R v Wong[33] Gaudron, Gummow and Hayne JJ endorsed the principle that a sentencing judge must make an instinctive synthesis of all factors which bear upon the sentence to be imposed and arrive at a single result which takes due account of them all. It was considered to be a breach of principle to adopt an approach to sentencing in which a provisional sentence is first determined and then reduced or increased by factors which mitigate or aggravate the offence. Their Honours expressly agreed with the earlier cited observations of McHugh J:
“In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender’s place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences.”
[33] (2002) 185 ALR 233 at [76]
The advocates of the two-tiered approach have advanced transparency and accountability as the primary advantages. In R v Cameron[34] Kirby J observed:
“In this Court, there has been something of a controversy about whether it is appropriate, in sentencing, to proceed explicitly by way of a ‘two-stage approach’ or not. In Victoria, the courts have long been hostile to this notion. Subject to overriding statutory obligations, they have favoured what is described as the ‘instinctive synthesis’ of factors resulting in a single ‘appropriate sentence’.
...
The appeal therefore reveals the need for ‘two stages’ and the general importance of transparency in judicial reasons for sentence. The history of administrative law in the past quarter century has seen a retreat from unaccountable decision-making. In the context of the higher duty of judges to state reasons that facilitate the judicial process, considerations important to judicial orders should likewise be revealed for the scrutiny of the litigants, the public and the appellate process. They should not be hidden in judicial formulae about ‘instinct’.”
[34] (2002) 76 (3) ALJR 382 at [69], [73]
It has more recently been suggested that there may be little difference in substance between the two approaches. It is said that any difference should be characterised as semantic. In Cameron[35] Kirby J observed:
“The difference that has emerged in this Court on this question may be one of semantics rather than of substance. However that may be, in my view it is desirable, and certainly permissible, by the common law, for a judge to identify the measure of the discount which he or she has allowed for a plea of guilty. If that means that a ‘two-stage approach’ is involved, including identification of the primary and then the discounted sentence, I regard it as inherent in the provision of an identifiable discount for such a plea. No such discount can be reduced to a set formula. Elements of intuition and judgment remain to be given weight in arriving at the aggregate sentence finally imposed.”
[35] (2002) 76 (3) ALJR 382 at [71]
There will necessarily be a degree of transparency in sentencing remarks. The sentencing judge is expected to apply established sentencing principles and provide reasons which identify the material facts and other considerations that have been weighed and balanced in the sentencing process. A sentencing judge may choose to disclose a more detailed process of reasoning thereby providing greater transparency. However as McHugh J observed in AB this approach may invite error.
There is a tension between the traditional approach to sentencing and the two-tiered approach. The assessment of imprecise material together with reason, judgment and mercy are the hallmarks of the traditional approach. Mathematical computations and adjustments involve accuracy and precision. McHugh J in AB[36] summarised the tension:
“The two-tiered approach of determining an objective sentence and then adjusting it is in conflict with the discretionary nature of the sentencing process. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks. The two-tiered approach is also in conflict with the statements of principle in Veen v The Queen [No 2][37] where Mason CJ, Brennan, Dawson and Toohey JJ said:
‘However, sentencing is not purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter.”

[36] (1999) 198 CLR 111 at [15]
[37] (1988) 164 CLR 465 at 476-477
In Place the court’s consideration of whether the correct approach to sentencing was two-tiered or instinctive synthesis was confined to the issue of a reduction on account of guilty pleas. The court approved the practice of identifying the extent of the reduction given for guilty pleas. The wider debate concerning the general approach to sentencing was not the subject of consideration.
Tariff Issues
As earlier observed counsel for the Crown submitted that the “starting point” for armed robbery had been “settled” in Place. In the present case the Crown did not differentiate between the four offences of armed robbery. All were said to attract the same starting point of seven years imprisonment.

In AB[38] McHugh J exposed the inherent weakness of applying a so called “starting point”. He observed that consciously or subconsciously a judge may determine the objective sentence for an offence by what is perceived to be appropriate without consideration of the penalty which should be imposed for any particular offence. The present case illustrates the danger. The Crown submitted that the same starting point should apply to each offence of armed robbery. The suggested starting point of seven years was said to have been “settled” in Place. This suggests the fixing of an objective sentence. The Crown submission appeared to give a prescriptive effect to Place.
[38] (1999) 198 CLR 111 at [16-19]
In Place[39] the court rejected the proposition that a sentencing tariff had been promulgated for the offence of armed robbery:
“The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.”
Notwithstanding the care with which Perry J [in Newton[40]] explained the circumstances that, in his view, could lead to the description of a particular offence of armed robbery as a “street offence”, for the reasons we have given, in our opinion it is undesirable to attempt to attach labels of that type to a particular set of circumstances.
Perry J also suggested that the standard had been formulated by reference to a “category of offence” which he identified as “a bank hold-up or armed robberies committed against business houses which are “vulnerable targets” such as chemist shops or service stations trading late at night …”. A footnote to the passage cited referred to a number of appellate decisions involving armed robberies of those types of premises. In our opinion, however, the authorities to which his Honour referred were not concerned with identifying a standard applicable to a “category of offence”, but were indicating that the particular offences fell within the broad description to which we have referred. As we have said, in our view it is inappropriate to attempt to create categories of offending or to regard the standard as applying to a particular ‘category’.”
[39] [2002] 81 SASR 395 at [104-105]
[40] R v Newton [2002] SASC 36 at [46-47]
The court considered it undesirable to attempt to attach labels to any particular type of armed robbery for example a “street offence”. The circumstances of armed robberies are variable as are the motivations and reasons for their commission[41]. In Place the court did not “settle” a range of penalties for the offence of armed robbery. In the passages cited earlier the court was explicit that a tariff was inappropriate and was not being fixed. The remarks in Place are not to be taken as prescriptive.
Multiple Offending
[41] R v Newton [2002] SASC 36 at [63]
The present case is complicated by the fact that the judge was dealing with multiple offences which were of the same or a similar character.
The Crown’s submissions had no regard to the provisions of section 10(1)(c) of the Sentencing Act:
“A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; ...”
When sentencing with respect to offences which form part of a course of conduct section 10(1)(c) requires the court to have regard to other criminal acts of the same or a similar character. The approach being advanced by the Crown creates considerable difficulty. In cases like the present it would require the court when considering each separate offence to have regard to all other criminal acts of the same or similar character that form part of the course of conduct. In the present case the judge addressed this issue by grouping the offences that he considered to be of the same or a similar character and then imposing the one penalty pursuant to section of the Sentencing Act 18A.
Section 18A provides:
“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.”
This section permits the fixing of the one penalty for a number of offences. It has been the subject of considerable judicial comment. Its breadth has been acknowledged in R v Symonds[42] where Doyle CJ observed:
“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 s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.”
Provisional Head Sentence
[42] [1999] SASC 217 at [21-22]
The judge provided extensive sentencing remarks. It has not been suggested that he made any error of fact. It has not been suggested that he overlooked any relevant material or took any irrelevant consideration into account.
As earlier observed the judge grouped a number of the offences together as he considered that they formed part of an ongoing course of conduct. The judge then totalled the provisional sentences. A reduction was made for the pleas of guilty, contrition and remorse and cooperation with the authorities. Finally when determining the one penalty pursuant to section 18A the judge applied the totality principle. This approach allowed the overall criminality of the respondent’s conduct to be appropriately addressed.
Has any error of principle been disclosed? Is the sentence manifestly inadequate? Is this case within the category of cases justifying a grant of leave to appeal to the Crown?
There were alternative ways in which the judge could have approached the task of sentencing the respondent. The Crown did not submit that the judge’s approach involved any error of principle. The Crown suggested that the alternative approach of considering each offence separately would have been the best approach.
Another alternative which could have been adopted was to determine the one sentence having regard to the respondent’s entire criminal conduct. This would also have been appropriate if the criminal acts formed part of an ongoing course of conduct. The groups of offences identified by the sentencing judge could be said to be of the same or a similar character. All appeared to have been drug related. There was a pattern to the offending.
The sentence must reflect the entire culpability and criminality of the respondent’s conduct. Regard should also be had to the matters of aggravation including the course of conduct, the sexual offending and the suffering of the victims. At the same time regard must be had to the respondent’s youth, his personal antecedents and his prospects for rehabilitation. The sentencing judge considered all of these matters. Having regard to these considerations a provisional sentence of 34 years and nine months cannot be said to be manifestly inadequate. The provisional sentence is not disproportionate to the seriousness of the conduct.
Guilty Pleas
As earlier observed the Crown did not complain about the reduction of one third on account of the respondent’s pleas of guilty, cooperation with the authorities, contrition and remorse.
The Totality Principle
Counsel for the Crown complained about the application of the totality principle. It was submitted that the reduction of seven years was manifestly excessive. No error of principle was identified. The challenge was directed towards the judge’s exercise of discretion.
In Postiglione v R[43] McHugh J addressed the totality principle in the following terms:
“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved[44] In Kelly v The Queen[45]O’Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi[46]:
‘There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.’
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged[47]. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences[48].
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.”
[43] (1997) 189 CLR 295 at 307-308
[44] See Mill v The Queen (1988) 166 CLR 59 at 63
[45] (1992) 33 FCR 536 at 541
[46] Unreported, Court of Criminal Appeal of SA; 20 April 1988
[47] R v Holder [1983] 3 NSWLR 245 at 260
[48] Holder [1983] 3 NSWLR 245 at 260
The judge had regard to the overall criminality of the offending. He also had regard to the respondent’s relative youth and his prospects of rehabilitation. The reduction of seven years was a proper exercise of discretion. The judge’s reduction, together with the unchallenged reduction of one third for the pleas of guilty, cooperation with the authorities, contrition and remorse led to a head sentence of 16 years. This is not so disproportionate to the seriousness of the crime as to shock the public conscience.
The Non Parole Period
The fixing of a non parole period is a further matter within the judge’s discretion. Having regard to the respondent’s youth and prospects of his rehabilitation the non parole period fixed was a proper exercise of discretion.
Conclusion
The approach taken by the judge in the present case was authorised by section 18A of the Sentencing Act. It allowed for the application of the principles of concurrent and cumulative sentencing. The judge’s remarks demonstrated a degree of transparency which disclosed his process of reasoning. Although the judge need not have gone this far the transparency which resulted has not attracted error. All relevant material was considered. No irrelevant considerations were taken into account. No error in the application of general sentencing principles has been demonstrated. The head sentence of 15 years and eight months with a non parole period of seven years and eight months[49] may have been merciful but given the respondent’s youth and personal antecedents the sentence cannot be said to shock the public conscience.
[49] Regard has been had to time spent in custody
This case does not provide an appropriate vehicle for laying down principles for the governance and sentencing guidance of courts. This application is not within the rare and exceptional category of case justifying a grant of leave to appeal to the Crown. This application for leave to appeal should be refused.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2002) 185 ALR 233.
2.    R v Williscroft [1975] VR 292 at 300 (Victorian Full Court).
3. Ibid para 76.
4. Gleeson CJ confined himself to dealing with the “guidelines” which had been adopted by the Court of Criminal Appeal of New South Wales. Kirby J did not agree with the criticism of the “two-stage” approach. He said (ibid para 102):
“... it would be a retrograde step to subsume the adjustments which the law requires to be taken into account in sentencing by a ‘return to unexplained judicial intuition’. Greater transparency and honesty are the hallmarks of modern public administration and the administration of justice. In sentencing we should not turn our backs on these advances.”
The remaining judge, Callinan J, did not address this aspect of the matter.
5. (1999) 198 CLR 111 at para [15] page 121.
6.    (2001) 81 SASC 9.
7. Ibid paras 21 and 24.
8.    Kirby J, Wong at [102].
9. (2002) 81 SASR 395.
10. (2000) 49 NSWLR 383.
11. (2002) 187 ALR 65.
12. (1981) 26 SASR 573.
13. (1988) 142 LSJS 451.
14. (1988) 166 CLR 59.
15. (1997) 189 CLR 295.
16. (1998) 70 SASR 488.
17. Ibid 497.
18. Ibid 490.
19.   See, for example, R v Osenkowski (1982) 30 SASR 212 and R v Everett (1994) 181 CLR 295.
20.   The maximum penalty for armed robbery and for assault with intent to rob is imprisonment for life. The maximum penalty for attempted rape and assault with attempt to rape is imprisonment for 12 years. The maximum penalty for indecent assault is imprisonment for eight years. The maximum penalty for a subsequent offence of illegal use of a motor vehicle, is imprisonment for between three months and four years. For receiving the maximum penalty is imprisonment for eight years.
21. (1981) 28 SASR 362 at 363
22. (1982) 30 SASR 212
23. (1994) 181 CLR 295 at 299 and 300
24. (1976-1977) 137 CLR 293 at 310
25. (1997) 69 SASR 150 at 159
26.   Kirby J expressed approval of McHugh J in Dinsdale v R (2000) 74 ALJR 1538 at [61-62]
27. (2000) 74 ALJR 1538
28.   The gun was real but had been disabled from use. However this was not known by the victims.
29.   R v Major (1998) 70 SASR 488
30. (2002) 81 SASR 8
31.   “JUDGE:            What do you say about a third for the plea of guilty and so on? That is fairly substantial.
“COUNSEL FOR         It is substantial but it is warranted in this case. There was an indication of the pleas
THE CROWN:   of guilty at a very early stage in relation to this matter and the pleas have clearly avoided the need for these women to give evidence of a most distressing incident; so a third as a discount is an appropriate discount.”
32. (1999) 198 CLR 111 at [16-19]. See also Hayne J at [119-121]
33. (2002) 185 ALR 233 at [76]
34.   (2002) 76 (3) ALJR 382 at [69], [73]
35.   (2002) 76 (3) ALJR 382 at [71]
36. (1999) 198 CLR 111 at [15]
37. (1988) 164 CLR 465 at 476-477
38. (1999) 198 CLR 111 at [16-19]
39. [2002] 81 SASR 395 at [104-105]
40.   R v Newton [2002] SASC 36 at [46-47]
41.   R v Newton [2002] SASC 36 at [63]
42. [1999] SASC 217 at [21-22]
43. (1997) 189 CLR 295 at 307-308
44.   See Mill v The Queen (1988) 166 CLR 59 at 63
45. (1992) 33 FCR 536 at 541
46.   Unreported, Court of Criminal Appeal of SA; 20 April 1988
47.   R v Holder [1983] 3 NSWLR 245 at 260
48.   Holder [1983] 3 NSWLR 245 at 260
49.   Regard has been had to time spent in custody

[2002] SASC 258

24 October 2002