R v Copeland (No 2) - [2010] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COPELAND (No 2)
[2010] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
25 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence - defendant and appellant found guilty by jury verdict of using a motor vehicle without consent, attempted armed robbery and three counts of aggravated armed robbery - defendant sentenced to the one term of imprisonment of 16 years pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - a non-parole period of 10 years fixed - whether sentence and non-parole period manifestly excessive - whether error of approach identified in application of section 18A - whether Judge required to have specific regard to sentence appropriate for each offence when utilising section 18A to fix the one sentence.
Held: appeal dismissed.
(Gray J): no error of approach identified - the use of section 18A to fix the one sentence of imprisonment was appropriate - section 18A does not require the identification of separate notional sentences for each offence - sentencing remarks adequately explain how the ultimate sentence was determined - sentence and non-parole period within the Judge's discretion.
(White J): when s 18A of the CLSA is invoked it is necessary for the sentencing court to provide an adequate explanation for the sentence imposed – it is usually desirable for the Court to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent, and then to determine the aggregate sentence – in those cases in which that approach is impracticable, the sentencing court should, by other means, give an adequate explanation of the sentence – the failure of the Judge to give an explanation of the means by which the starting point of 16 years and 4 months was derived was an error – neither the Judge’s head sentence nor the non-parole period are manifestly excessive.
(Kourakis J): no error in approach identified - a failure to disclose individual sentences when fixing a single sentence pursuant to section 18A is not an error of law - it is good practice to identify sentences and issues of concurrency when utilising section 18A - sentence imposed not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 137(1), s 270A and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10 and s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; Attorney-General v Tichy (1982) 30 SASR 84; R v Simpson (2004) 89 SASR 515; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v Van der Horst [2006] SASC 243; R v Jason [2002] SASC 201; R v Elliott (2001) 121 A Crim R 254; R v Place (2002) 81 SASR 395; R v Power [2003] SASC 288; R v Kelly [2000] SASC 293; R v Bennett [2005] SASC 55; Morgan v Police [2009] SASC 337; R v Gibbs (2004) 89 SASR 30; R v Waugh (2005) 93 SASR 274; House v The King (1936) 55 CLR 499; Wong v The Queen (2001) 207 CLR 584; Cameron v The Queen (2002) 209 CLR 339; Ryan v The Queen (2001) 206 CLR 267; Dinsdale v The Queen (2000) 202 CLR 321; R v Copeland [2010] SASFC 11; R v Gale (1999) 74 SASR 235; R v Tu (2001) 216 LSJS 297; Germain v Police [2006] SASC 340; Taliangis v Police [2008] SASC 155; R v Sevo [2006] SASC 124; R v Knowles [2007] SASC 185; R v E, AD [2005] SASC 332; R v B, RWK (2005) 91 SASR 200; R v Blain (1984) 115 LSJS 270; R v Drew [2007] NSWCCA 331; R v Randall-Smith (2008) 100 SASR 326; R v Cramp (2010) 106 SASR 304; R v Dorning (1981) 27 SASR 481; MacKenzie v Betts (1980) 23 SASR 307; Robinson v Samuels (1978) 18 SASR 137; R v Knowles (1987) 45 SASR 14; Jarvis v The Queen (1998) 20 WAR 201; Herbert v The Queen (2003) 27 WAR 330, considered.

R v COPELAND (No 2)
[2010] SASCFC 61
Court of Criminal Appeal Gray, White and Kourakis JJ
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Darren Clyde Copeland, was found guilty by jury verdict of one count of using a motor vehicle without the consent of the owner,[1] one count of attempted armed robbery[2] and three counts of aggravated armed robbery.[3] The circumstance of aggravation in the three counts was the use by the defendant of a double barrelled shotgun.
[1] Contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA).
Maximum Penalty:
For a first offence—imprisonment for 2 years;
For a subsequent offence—imprisonment for not less than 3 months and not more than 4 years.
[2] Contrary to section 137(1) and 270A of the Criminal Law Consolidation Act 1935 (SA).
Maximum penalty – 12 years imprisonment
[3] Contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).
Maximum penalty – imprisonment for life
The offending occurred over a relatively short period of time. On 10 October 2007, the defendant unlawfully took a motor vehicle from Kent Town. Two days later, on 12 October 2007, he used that vehicle to commit the three counts of aggravated armed robbery and the attempted armed robbery. These offences were committed over a period of one to two hours. The offending occurred at three veterinary clinics and at an eye centre. The premises were located at Payneham, Burnside, Tusmore and Blackwood. On each occasion the defendant threatened his victims with the shotgun and demanded money. The count of attempted armed robbery was not completed as the defendant abandoned his plan when faced with a victim who refused to comply with his demand for money.
The defendant’s victims were terrified and, as the trial Judge noted when sentencing, a number had continued to suffer distress and trauma. The Judge sentenced the defendant to the one term of imprisonment of 16 years for all offending, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). A non-parole period of 10 years was fixed.
The defendant has extensive criminal antecedents. These commenced in 1978 when the defendant was aged about 16 years. At that time he was placed under the care and control of the Minister until he reached the age of 18 years.
The defendant’s adult offending commenced in New South Wales in 1981 and continued in South Australia over the following 12 months. His offending at that time included destroy or damage property, building breaking and felony, accessory after the fact to a felony and possessing housebreaking implements. His offending at this time led to the imposition of suspended terms of imprisonment in addition to terms of immediate imprisonment. In 1984 and 1985, the defendant committed offences in New South Wales, including dishonesty offending.
From 1986 until 1997, the defendant committed numerous offences in Western Australia. These included alcohol related offences, assaults and assaults occasioning actual bodily harm and serious dishonesty offending, including burglary with intent. The defendant was sentenced to terms of immediate imprisonment throughout this period, including a sentence of 12 months imprisonment imposed in 1997 for the offence of burglary.
From 1998, the defendant’s offending, with one exception, occurred in South Australia. During this decade, the defendant committed numerous offences, including threatening a person with a firearm, the use of motor vehicles without consent and serious criminal trespasses. He was sentenced to a number of terms of immediate imprisonment, including a sentence of about two years in 2004 and about two years in 2008. During this period he breached bonds, parole and bail agreements on numerous occasions.
The Judge when sentencing outlined the personal antecedents of the defendant. Particular reference was made to the reports and opinions of a forensic psychologist. Those reports traced the neglect and abuse suffered by the defendant as a child. The Judge in his sentencing remarks set out the defendant’s history of drug abuse, which appears to have commenced when he was a nine year old child. The defendant has abused cannabis, amphetamines and other substances for many years. The forensic psychologist considered that the likelihood of the defendant re-offending was high. This might be observed to be an unremarkable conclusion given the defendant’s long-term substance abuse and criminal antecedents.
In determining the sentence to be imposed, the Judge considered the overall criminal culpability of the defendant’s conduct and in this respect observed:
[Counsel for the defendant] has put to me analysis of your criminal record in an attempt to demonstrate that your offending has lessened or become less significant over the years. I am not persuaded by that argument, however I have decided not to make that declaration. I think that you do have prospects of rehabilitation and that you, and the community, will benefit for a longer time with you on parole than s.20B would allow. I note your advancing years. You are only 47 now but you are getting longer in the tooth Mr Copeland, and the fact of the matter is your continued involvement in this type of offending must surely lessen.
Having said that, in light of the seriousness of these offences and your antecedents, I will be imposing a severe penalty.
I also add at this stage that the indications that I have received from persons observing you in custody in recent times, and that there has been a real change in your attitude, are an important feature in my decision not to make the declaration.
In fixing penalty I note all of the submissions and documents put to me on your behalf. I have also had regard to the four months additional time that you have served whilst being remanded. That is, four months in addition to the back-dating date that I’m going to date your sentence from. I do not agree that I should impose wholly concurrent sentences for these offences. Having said that, I have regard to the short time spate, if you like, of this offending and that will significantly affect the length of the sentence. The illegal use offence, the using of [the victim’s] car is not to be ignored either, because that was a serious offence. The damage caused to the vehicle was great and you also have many prior offences of that nature. In fixing the sentence that I will now impose I have also had regard to the totality principle. I sentence you to one penalty pursuant to s.18A of the Criminal Law (Sentencing) Act. The head sentence that I impose is 16 years and I fix a non-parole period of 10 years. That sentence is to date from 3 July 2009.
The Appeal
On the hearing of the appeal, the defendant complained that the sentence and non-parole period were unreasonable and manifestly excessive. It was contended that the Judge failed to have specific regard to the sentence appropriate for each offence and to consider a reduction on the basis of totality. It is relevant to note that it was not suggested that the Judge had failed to have regard to a relevant matter or had given consideration to any irrelevant matter. It was not suggested that there had been any error of sentencing principle.[4]
[4] See Markarian v The Queen (2005) 228 CLR 357.
The circumstances in which this Court will allow an appeal against sentence are clearly defined.[5] The proper scope of the inquiry on an appeal against sentence was outlined in Markarian[6] by Gleeson CJ, Gummow, Hayne and Callinan JJ:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy.
[Footnote omitted]
[5] Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)if it thinks that a different sentence should have been passed—
(i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks     ought to have been passed (whether more or less severe); or
(ii)         quash the sentence passed at the trial and remit the matter to the court of trial for      resentencing; or
(b)in any other case—dismiss the appeal.
[6]    Markarian v The Queen (2005) 228 CLR 357 at [25].
Whether error identified
This Court has oft-discussed the approach to be taken when sentencing in relation to multiple criminal offending that forms part of a course of conduct.[7] It has been recognised that a sentencing Judge has a wide discretion with respect to the approach to be taken. In that respect, it is instructive to refer to the text of section 18A of the Sentencing Act, which 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.
It is to be noted that the terms of section 18A do not limit the wide discretion conferred by that section.
[7] The difficulties in sentencing for multiple offences have been well documented. See eg Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Wells J); R v Blain (1984) 115 LSJS 270 at 273 (King CJ); R v Simpson (2004) 89 SASR 515 at [54]-[62].
There will be cases where a sentencing judge may consider that it is appropriate to identify a notional separate penalty for each offence before arriving at the one sentence to be imposed through the use of section 18A.[8] However, there will be other cases where a sentencing judge will consider it appropriate to arrive at the one head sentence without separately identifying in any sentencing remarks each notional separate sentence.[9]
[8] See the approach taken with respect to the fixing of notional head sentences in R v Major (1998) 70 SASR 488.
[9] See the approach taken to sentencing in R v Symonds [1999] SASC 217 at [22] (Doyle CJ, with whom Perry and Mullighan JJ agreed); see also R v Nylander (2003) 228 LSJS 24 at [78]-[85] (Bleby J); R v Van der Horst [2006] SASC 243 at [54]-[57]; see also R v Jason [2002] SASC 201 at [20]-[22] (Gray J with whom Doyle CJ and Williams J agreed); R v Elliott (2001) 121 A Crim R 254 at [74]-[84] (Gray J with whom Nyland J agreed).
It is to be observed that prior to the introduction of section 18A, this Court grappled with the inherent difficulties present in fixing an appropriate sentence for multiple offences. Without section 18A, the use of concurrent terms was necessary in order to arrive at an ultimately just sentence for the conduct of the offender. In Attorney-General v Tichy, Wells J relevantly identified the potential for creating anomalies through the imposition of either concurrent or consecutive sentences:[10]
…The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[Emphasis added]
These observations clearly highlight the utility of section 18A as a sentencing tool to assist in overcoming the dangers inherent when imposing concurrent or partially concurrent sentences for offending which can be characterised as one “multi-faceted course of criminal conduct”.
[10] Attorney-General v Tichy (1982) 30 SASR 84 at 93.
That section 18A was intended to be used as a sentencing tool to overcome the difficulties inherent in sentencing for multiple offending is illustrated by the following remarks from the second reading speech with respect to the introduction of the provision:
This provision was originally raised by the Senior Judge for consideration as providing a useful sentencing tool, especially in cases involving multiple acts of dishonesty. The amendment has been approved by the Chief Justice and the Department of Correctional Services. The amendment will simplify the task of the sentencer in establishing an appropriate penalty and the setting of a non-parole period. The new provision will also eliminate the risk of miscalculation and errors in complex sentence calculations and avail prisoners of a clear picture of the penalty imposed by the court.
In Major,[11] Doyle CJ identified a risk that where section 18A is utilised, the sentence arrived at may not appropriately reflect the overall criminality involved:
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.
I also agree with Olsson J that when an appropriate single sentence has been arrived at, taking account of all relevant factors, both adverse and favourable, it is then appropriate for the sentencing judge to consider whether the sentence contemplated is so crushing as to call for some reduction as an act of mercy. Once again, in a case in which the principle of totality is called into play, it is necessary for the sentencing judge to give separate consideration to that factor.
[11] R v Major (1998) 70 SASR 488 at 490.

However, it has been accepted that the approach identified in Major was not a mandated approach. As Doyle CJ observed in Symonds:[12]
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. ….
[Emphasis added]
It is apparent that the Chief Justice did not provide an exhaustive category of situations where it would not be necessary or appropriate to follow the approach in Major.
[12] R v Symonds [1999] SASC 217 at [21]-[22] (Doyle CJ, with whom Perry and Mullighan JJ agreed).
An example of the Court choosing to adopt the approach set out in Major is in the Court of Criminal Appeal decision of Place. Doyle CJ, Prior, Lander and Martin JJ, with whom I agreed, commented:[13]
In our opinion this Court should exercise the power contained in s18A 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 s18A 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 s18A, 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 (1988) 194 CLR 610; Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 676-681.
[13] R v Place (2002) 81 SASR 395 at [111].
In Nylander[14] Bleby J set out the approaches outlined in Major and Symonds before commenting:
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[Emphasis added]
[14] R v Nylander (2003) 228 LSJS 24 at [81]-[85] (Bleby J, Prior and Sulan JJ agreeing).
In Van der Horst, the Court further emphasised the potential artificiality that may arise in applying the approach outlined in Major. In the course of her reasons, Vanstone J commented:[15]
However, it is not always necessary to follow that process, or, even if followed, to demonstrate in sentencing remarks the route taken to the final total. As the Chief Justice later observed in R v Symonds [1999] SASC 217, such an approach would not be indicated if the case were straightforward such that a consideration of separate sentences was an “unnecessary elaboration”. By way of further example he observed there would be cases where the totality principle would so obviously operate to reduce an otherwise appropriate sentence that it would become pointless to consider and assemble individual sentences. Accumulating individual sentences might give an unbecoming “air of unreality” to the sentencing process: R v Nylander [2003] SASC 191; (2003) 228 LSJS 24 at 39 per Bleby J, Prior and Sulan JJ agreeing. See also R v Power [2003] SASC 288 per Sulan J at [18], Doyle CJ and Besanko J agreeing.
Whichever approach is indicated, the fact remains that the greater the number of offences under consideration, the greater must be the breadth of discretion residing in the sentencing judge in terms of the sentence to be imposed. In my view that observation is exemplified in the case under consideration.
Here there were 14 separate victims and at least nine separate occasions when the applicant embarked on a course of offending. If this is counted only as nine incursions into criminal conduct then the applicant is fortunate. Because of the very extent of offending, the range within which the final sentence might fall was necessarily a wide one.
With respect to those who might take a different view, I see no reason why a judge dealing with such an array of offences of a broadly similar nature and seriousness should not, using his experience and judgment, select a starting point without attempting to justify it arithmetically. Doing so avoids creating an “air of unreality”. If it is not done, the totality principle would obviously come into play anyway. To do so is no more arbitrary an exercise than is the decision to make the sentences for any of the incursions run concurrently. Such an approach was approved in R v Kelly [2000] SASC 293 and followed without attracting adverse comment in R v Bennett [2005] SASC 55.
[Emphasis added]
[15] R v Van der Horst [2006] SASC 243 at [54]-[57].
I similarly observed:[16]
The advantage of invoking the s 18A discretion in the case of the one incursion into crime involving multiple offending is that it allows the court to properly address the overall criminality of the offender’s conduct and to arrive, as a matter of judgment, at an appropriate overall sentence. The approach avoids the artificiality referred to by this Court in Nylander …
[16] R v Van der Horst [2006] SASC 243 at [22].
In Power[17] Sulan J also referred to the artificiality which may be occasioned when following the approach outlined in Major:
However, that approach can in some instances be of limited value, particularly in cases where by imposing individual notional penalties, the final penalty arrived at is so high that it creates an air of unreality. The consequence of imposing notional sentences where an offender commits a series of serious offences can result in a head sentence which has little bearing to the final sentence imposed when all the relevant factors, including the principle of totality, are taken into account. If the approach of identifying notional sentences for each offence or group of offences and arriving at an overall head sentence is adopted, then the sentencing judge is required to step back and consider the sentence taking into consideration all relevant matters. That consideration may result in the sentence being substantially reduced because the end result of accumulating the individual sentences leads to a sentence which, given the personal circumstances of the offender, is crushing.
[Emphasis added]
[17] R v Power [2003] SASC 288 at [18] (Sulan J, with whom Doyle CJ and Besanko J agreed).
It is further useful to draw attention to the remarks of Prior J in Kelly, where his Honour applied Symonds when observing:[18]
In some cases, however, the two-tiered approach is not necessary, and it is appropriate and convenient to go directly to the imposition of a single sentence. In my opinion, that is the position here, because the totality principle must so obviously here operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and assemble the individual sentences that would otherwise be imposed (see R v Symonds [1999] SASC 217; and AB v R (1999) 198 CLR 111).
[18] R v Kelly [2000] SASC 293.
In Bennett[19] Doyle CJ, with whom Vanstone and White JJ agreed, considered the application of the principle of totality to a sentence arrived at through the use of section 18A and relevantly observed:[20]
…The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s 18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent: cf R v Major (1998) 20 SASR 488; R v Place [2002] SASC 101; (2002) 81 SASR 395 at [114].
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.
It is apparent from these remarks that the Court did not disapprove the approach of fixing a sentence pursuant to section 18A without attributing a notional sentence to each offence.
[19] R v Bennett [2005] SASC 55.
[20] R v Bennett [2005] SASC 55 at [15]-[16]; those remarks were applied in Morgan v Police [2009] SASC 337 (Duggan J).
In Gibbs[21] Doyle CJ outlined the desirability in that case of indicating in approximate terms the sentence appropriate for each offence. The Chief Justice went on to observe that this is no rigid rule, but alluded to the desirability of providing an adequate explanation of how an ultimate sentence was determined in circumstances where it would be unnecessary or inappropriate to follow the Major approach:[22]
However, I recognise, as I said in R v Symonds [1999] SASC 217 at [21] – [22] that there can be no rigid rule in this respect, and in some cases it will be unnecessary or inappropriate to indicate a separate sentence for each of the offences in question. If that is the approach taken, a sentencing judge should be mindful of the need to give an adequate explanation of how the ultimate sentence was determined.
[21] R v Gibbs (2004) 89 SASR 30.
[22] R v Gibbs (2004) 89 SASR 30 at [3]; cf R v Van der Horst [2006] SASC 243 at [81]-[90]; R v Waugh (2005) 93 SASR 274 at 208 (White J).
It is to be recognised that the adequate explanation as contemplated by the Chief Justice would not involve the identification of notional separate sentences for each offence, as the explanation was only alluded to in circumstances where it was considered to be unnecessary or inappropriate to indicate such separate notional sentences. An adequate explanation may be offered in a variety of ways. A Judge retains a broad discretion with respect to how he or she provides that explanation. A Judge may or may not choose to refer to a relevant sentencing standard which is being applied or outline the seriousness of the total criminality, however what constitutes adequate explanation in any given case may differ. Explanations as to why a particular sentence has been imposed are usually appropriate in the sentencing process, whether or not section 18A has been utilised in arriving at the sentence. The reasons for this are obvious.
The above authorities make clear that a sentencing Judge is not obliged to fix notional sentences when utilising section 18A in order to impose the one sentence for multiple offences. A failure to do so is not of itself a sentencing error.[23] It is relevant to observe that in the present proceeding, it cannot be said that the sentencing Judge did not first fix notional sentences before arriving at the total sentence ultimately imposed. As Vanstone J commented in Van der Horst,[24] it is not always necessary to follow that process, or, even if followed, to demonstrate in sentencing remarks the route taken to the final total. That the sentencing remarks did not identify an arithmetic construction of the ultimate sentence imposed also cannot be characterised as a sentencing error.
[23] See R v Van der Horst [2006] SASC 243; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; see also R v Jason [2002] SASC 201; R v Elliott (2001) 121 A Crim R 254.
[24] R v Van der Horst [2006] SASC 243 at [54].
It is convenient to extract the relevant principles arising from the above authorities:
·     The process of sentencing is ultimately a matter of discretion and judgment.[25] The High Court has given its approval to the instinctive synthesis approach[26] and has emphasised that the process of sentencing is not a mathematical exercise.[27]
[25] House v The King (1936) 55 CLR 499 at 503 (Starke J), 505 (Dixon, Evatt & McTiernan JJ).
[26] Wong v The Queen (2001) 207 CLR 584 at [74]-[78] (Gaudron, Gummow & Hayne JJ).
[27] Cameron v The Queen (2002) 209 CLR 339 at 358 (Kirby J) citing Pearce v The Queen (1998) 194 CLR 610 at [46]; Ryan v The Queen (2001) 206 CLR 267 at [33].
· The purpose of sentencing remarks is primarily to provide an explanation to a defendant for the sentence imposed, but also to demonstrate that correct principles have been applied. When sentencing remarks address these concerns, not only is the defendant informed about the punishment to which he or she is subject, but it also assists the appellate Court in understanding the basis for the sentence and in performing its appellate function. This is reinforced by the terms of section 9 of the Sentencing Act with respect to the obligation to provide reasons for sentence.
·     The content of sentencing remarks is a matter of discretion for a sentencing Judge.
·     In the case of multiple offending, it is necessary for the Court, if it be a course of conduct, to have regard to that course of conduct.[28] It is also necessary for the sentencing Court to have regard to other offences that are to be taken into account[29] and the need to ensure that the defendant is adequately punished.[30]
·     There is a need to avoid the artificiality of a sentence that might follow where the sentencing Judge approaches the task mathematically at the cost of appropriately weighing all relevant factors which determine the criminality of the defendant’s conduct.[31]
· Section 18A of the Sentencing Act provides sentencing Judges with an important tool in allowing the Court to overcome the difficulties inherent in sentencing for multiple offences.[32]
·     The authorities recognise that in exercising the power conferred by section 18A, the sentencing Judge may refer to notional head sentences in the reasons for sentence, or may not.[33]
·     The decision not to identify separate notional head sentences for each offence does not represent an error of law.[34]
·     The matter of importance is that an adequate explanation for the sentence is provided in the form that the Judge may decide.[35]
·     On an appeal against sentence, an error must be identified before a sentence may be interfered with.[36] The relevant inquiry to be made on an appeal against sentence is well established. The Court must ask whether specific error has been shown: whether there has been some error of principle; whether irrelevant matters have been taken into account; whether the facts have been mistaken; or, whether a relevant matter has not been taken into account. Error may be inferred from a result that is unreasonable or plainly unjust, that is, manifestly excessive or manifestly inadequate.[37] A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[38]
·     When considering an appeal from a sentence imposed utilising section 18A, absent a specific error as set out above, it would be necessary to consider whether the sentence was manifestly excessive or inadequate and infer an error accordingly in keeping with the ordinary appellate approach.
[28] Section 10(1)(c) of the Criminal Law (Sentencing) Act 1988 (SA).
[29] Section 10(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA).
[30] See section 10(1)(k) of the Criminal Law (Sentencing) Act 1988 (SA).
[31] For example see Wong v The Queen (2001) 207 CLR 584 at [75], [78] (Gaudron, Gummow & Hayne JJ); see also Attorney-General v Tichy (1982) 30 SASR 84 at 93; see also R v Nylander (2003) 228 LSJS 24 at [85] (Bleby J).
[32] See for example discussion in R v Van der Horst [2006] SASC 243 at [54]-[57] (Vanstone J).
[33] R v Major (1998) 70 SASR 488; R v Nylander (2003) 228 LSJS 24 at [81]-[85] (Bleby J, Prior and Sulan JJ agreeing); R v Van der Horst [2006] SASC 243 at [54]-[57] (Vanstone J); R v Power [2003] SASC 288 at [18] (Sulan J, with whom Doyle CJ and Besanko J agreed).
[34] R v Symonds [1999] SASC 217 at [21] (Doyle CJ, with whom Perry and Mullighan JJ agreed).
[35] See the comments of Doyle CJ in R v Gibbs (2004) 89 SASR 30 at [3].
[36] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
[37] Markarian v The Queen (2005) 228 CLR 357 at [25]; Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
[38] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
In accordance with the authorities discussed above, the use of section 18A in the within proceeding was appropriate. The defendant faced multiple sentences of life imprisonment. Even taking into account the usual range of penalty imposed for armed robbery,[39] it is apparent that in the within proceeding the totality principle would “so obviously operate to reduce [the] otherwise appropriate sentence”, and as a consequence “it would become pointless to consider and assemble individual sentences”.[40] The circumstances in the within proceeding accord with those adverted to in Nylander where, to adopt the words of Bleby J in that decision, the proper approach to fixing an appropriate penalty is “to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant”.[41]
[39] See R v Place (2002) 81 SASR 395 at [100]-[101].
[40] R v Van der Horst [2006] SASC 243 at [54], adopting Doyle CJ in R v Symonds [1999] SASC 217.
[41] R v Nylander (2003) 228 LSJS 24 at [85].

I am also of the view that the sentencing remarks adequately explain how the ultimate sentence was determined and the factors relevant in that determination, and disclose no error in approach. The Judge had specific regard to the seriousness of the offending and the criminal and personal antecedents of the defendant. All relevant matters were taken into account and nothing irrelevant was taken into account.
In the circumstances of this matter, I consider that the Judge was entitled to arrive at the one sentence for all offending without separately identifying a notional sentence for each offence. I do not consider that any error of approach has been identified.
Whether sentence manifestly excessive
This Court in Place[42] reviewed the range of penalties imposed with respect to the offence of armed robbery. There the Court observed:
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. In our view, the sentencing judge was doing no more than having regard to the standard of penalty that has been identified by the Court of Criminal Appeal as applicable to the circumstances before him. However, it is clear that his Honour did not apply the standard as if it was a fixed tariff. If he had done so, his starting point would have been 36 years or more. It appears that his Honour used a figure of approximately five years for each of the armed robberies in determining his starting point.
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.
[42] R v Place (2002) 81 SASR 395 at [100]-[101].
It was said on appeal in the present proceeding that when assessing the defendant’s criminal culpability, regard should be had to the close proximity in time of the offending. It is to be accepted that this is a relevant consideration, however, it is also to be borne in mind that each of the defendant’s offences was a separate incursion into crime committed at different locations and involving different victims. The offending involved planning, a vehicle, a disguise, a weapon and execution. This was premeditated offending. The pattern of the offending relied heavily on disguise and the use of a terrifying weapon to frighten victims into compliance with the defendant’s demands. On any view, the defendant’s offending was grave.
The defendant has shown no contrition or remorse and continues to deny his involvement in the offending. His appeal against conviction was dismissed by this Court.[43] No occasion for a reduction on account of contrition and remorse or cooperation with the authorities arises.
[43] R v Copeland [2010] SASFC 11 (Doyle CJ, Duggan and David JJ).
In my view, the Judge imposed a sentence well within her discretion. This was a case where the issues of deterrence, both personal and general, were significant. Otherwise available leniency was precluded by the defendant’s criminal antecedents. There is nothing in the sentence imposed that does not accord with the observations of the Court in Place.[44]
[44] See R v Place (2002) 81 SASR 395 at [100]-[101].
In my view, the sentencing Judge has made no error of principle. No extraneous or irrelevant matters have affected the sentencing process. No mistake of fact has been made. All material matters have been considered. Given the course of criminal conduct, the one sentence of imprisonment for 16 years with a non-parole period of 10 years for all offending was within the Judge’s sentencing discretion.
Conclusion
I would dismiss the appeal.
WHITE J. A jury found the appellant guilty of five offences: three offences of aggravated robbery,[45] one offence of attempted aggravated robbery,[46] and one offence of using a motor vehicle without the owner’s consent.[47]
[45] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[46] Contrary to s 137(1) and s 270A of the CLCA.
[47] Contrary to s 86A of the CLCA.
The appellant, who is now aged 47, has an appalling criminal record. His list of prior offences comprises some 11 pages.
A Judge of the District Court declined to make a declaration under s 20B of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) that the appellant is a “serious repeat offender”. Instead, acting under s 18A of the CLSA, the Judge imposed a single sentence of imprisonment for a period of 16 years and fixed a non-parole period of 10 years. The Judge ordered that the head sentence and the non-parole period commence on 3 July 2009, the date upon which the appellant commenced time in custody in respect of the subject offences. As the sentence of 16 years was in addition to a period of four months which the appellant had spent in custody before 3 July 2009 which was attributable to these offences, it was in effect a sentence of 16 years and four months.
The appellant now appeals against that sentence. There is a single ground of appeal, namely, that the sentence is manifestly excessive.
Although the sentence imposed by the Judge is undoubtedly severe, the appellant’s offending called for such a sentence. I consider that the appeal should be dismissed. My reasons follow.
Circumstances of the Offending
This is the appellant’s second appeal to this Court in relation to the offences which are the subject of this appeal. On 2 August 2010, this Court dismissed an appeal against the convictions.[48] The circumstances of the offences are set out in some detail in the reasons of Duggan J, with whom Doyle CJ and David J agreed. That makes it unnecessary in these reasons to include all the same detail.
[48] R v Copeland [2010] SASCFC 11.
On 10 October 2007, the appellant stole a Mitsubishi sedan from business premises in Kent Town. The car was not recovered until 18 October 2007. The appellant used the car in the armed robberies on 12 October 2007. His taking of the car constituted the offence of using a motor vehicle without the owner’s consent.
The three aggravated robbery offences and the attempted aggravated robbery offence occurred within the space of about one hour on 12 October 2007. At about 2.45 pm, the appellant entered a veterinary clinic at Payneham and, using a sawn-off shotgun, demanded the money in the cash register. When the employee refused to comply with this demand, he fled the clinic but travelled immediately to another veterinary clinic at Burnside. He entered this clinic at about 3.05 pm, pointed the sawn-off shotgun at the attendant and demanded the contents of the cash register. The appellant then went immediately to another veterinary clinic at Tusmore where, again, he used the shotgun in his demand for money. From there, the appellant travelled to an eye clinic at Blackwood. Again he demanded money, backing up his demand with the sawn-off shotgun. This occurred at about 3.35 pm.
On each of the last three occasions, the employees handed over the contents of the cash registers. The appellant attempted to disguise his appearance by various means during the commission of each of these offences.
The appellant’s conduct at the Payneham veterinary clinic constituted the offence of attempted armed robbery. His conduct at the clinics at Burnside, Tusmore and Blackwood constituted the offences of armed robbery.
Needless to say, the victims of the offences were shaken and distressed by their experience. Although none of the victims were physically harmed, several reported continuing psychological effects.
The course of the offending indicates that the appellant had planned his targets in advance. They were not selected at random on the day of the offending. In other words, the appellant’s conduct was premeditated and involved the deliberate commission of separate offences against a number of soft targets.
In his evidence at his trial, the appellant denied that he was the person who had committed the offences. He maintained that denial at the time of sentencing. As the Judge pointed out, this made it difficult to conclude that he had any contrition, and it also meant that the Court did not have any explanation for the offending.
The maximum penalty for each of the offences of aggravated robbery was life imprisonment. The maximum sentence for the offence of attempted aggravated robbery was imprisonment for 12 years and, as the appellant’s offence of using a motor vehicle without the owner’s consent was a “subsequent offence,” the maximum penalty for that offence was imprisonment for three years.
The Appellant’s Criminal History
I referred earlier to the appellant’s appalling criminal history. That history commenced in 1978 when the appellant was 16 years old and involves numerous offences in this State, Western Australia and New South Wales. The appellant’s antecedents include some 28 offences of dishonesty (17 involving robbery or theft), 14 offences involving violence to another and 11 offences of illegal use of a motor vehicle. The appellant has been sentenced to imprisonment on some 26 separate occasions. On numerous occasions he has breached parole conditions or conditions of good behaviour bonds upon which prison sentences were suspended.
Although the appellant’s antecedents do not include any drug offences, much of his offending has been associated with his drug abuse.
The persistence with which the appellant offends, and his repeated failure to take advantage of the opportunities for reform which have been extended to him, can be seen in his history since June 2003. On 26 June 2003, a Magistrate in Adelaide sentenced the appellant for the offence of using a motor vehicle without the owner’s consent committed on 8 January 2002. The Magistrate imposed a sentence of imprisonment for six months but suspended that sentence upon the appellant entering into a bond requiring him to be of good behaviour for a period of two years and to comply with certain other conditions. On 22 August 2003, a Magistrate at Holden Hill sentenced the appellant for another offence of using a motor vehicle without the owner’s consent, receiving and other offences which had been committed before the sentence imposed in the Adelaide Magistrates Court on 26 June 2003. The Magistrate imposed a sentence of imprisonment of seven months but suspended that sentence upon the appellant entering into a bond requiring him to be of good behaviour for a period of 12 months and to comply with other conditions.
The appellant did not comply with the terms of either bond. Just six days after entering into the bond on 22 August 2003, he committed the offence of non-aggravated serious criminal trespass in non‑residential premises as well as other offences, including resisting police. As a consequence, on 12 January 2004, a Magistrate revoked the bonds into which the appellant had entered on 26 June and 22 August 2003 and made orders which had the effect of requiring the appellant to serve two years, one month and eight days in prison but with a non-parole period of one month.
On 15 March 2004, shortly after his release on parole on this sentence, the appellant offended again, committing the offences of being unlawfully on premises and damaging property.
On 25 January 2005, the appellant committed further offences including using a motor vehicle without consent and driving in a reckless or dangerous manner. He was sentenced for these offences to imprisonment for two years but this sentence was suspended upon him entering into a bond to be of good behaviour for three years and to comply with other conditions.
Subsequently, the Parole Board found that he had breached the conditions of his parole, and revoked it, with the effect that the appellant had to serve a period of one year, three months and 24 days in prison. Shortly afterwards, a Magistrate fixed a new non‑parole period of six weeks.
It is unclear when the appellant was paroled but, in any event, he committed further offences on 10 September 2006 (one offence of being unlawfully on premises and two offences of dishonestly taking property without the owner’s consent). In addition, in late June and late July 2007, the appellant committed two further offences of dishonestly taking property without the owner’s consent and one offence of serious criminal trespass in non‑residential premises.
The appellant was sentenced for these offences on 4 April 2008, that is, after his commission of the subject offences in October 2007. The Magistrate revoked the previous suspended sentence bonds and imposed further sentences of imprisonment. The effect was that the appellant had to serve 23 months and 27 days in prison with a non-parole period of 15 months.
At the time of the commission of the offences on 12 October 2007, the appellant had completed service of all the sentences of imprisonment imposed prior to that date, but he was still subject to the good behaviour bond into which he had entered on 6 January 2006. His offending constituted a breach of that bond.
The appellant’s overall history, and the history since June 2003, indicate that he persistently re-offends. He has been given numerous opportunities to rehabilitate himself, but he has not taken advantage of them. This reduced the scope of any exclusion of lenience, and meant that the protective and personal deterrence elements of sentencing were particularly important in his case.
There is another aspect of the appellant’s history which was very relevant to the sentencing. I referred earlier to the fact that the appellant had 14 previous convictions for offences involving violence to another. The sentencing remarks of the Courts in relation to some of those offences were before the Judge in the present case. These indicate that the appellant has been guilty of violent, intimidatory or aggressive behaviour on several previous occasions. It seems that the appellant either has no insight into the effect of his conduct on his victims, or is indifferent as to that effect.
The Appellant’s Personal Circumstances
There is much in the appellant’s personal circumstances which may provide some explanation for his sociopathic behaviour. His parents separated when he was nine months old and, for the most part, the appellant was raised by his mother and her de facto partner. The appellant reports a miserable upbringing, marked by frequent physical, verbal and sexual abuse. At about the age of 15, he was made a ward of the State and commenced to live in juvenile residential institutions.
When the appellant ceased residing in these institutions, he moved to live on the streets, and did so for several years. He learnt from his experiences as a child and young adult to be distrustful of others, something which has remained with him. The psychologist, Mr Balfour, considers that this has contributed to his alienation from society.
The appellant left school at the age of 15 years, part-way through Year 8. He has had numerous different employments but most have been relatively short-term, because of his offending and the subsequent incarcerations.
The Judge received a number of references and other materials regarding the appellant. These indicated that since being in custody, the appellant has become more settled, has taken steps to improve his literacy and numeracy skills and to obtain vocational skills, and that he is developing greater maturity and self-control. The overall impression is that the appellant has been taking positive steps towards his rehabilitation while in custody.
On the other hand, the Judge had two reports from the psychologist, Mr Balfour, dated 20 December 2007 and 29 March 2010 respectively. In the second report, Mr Balfour considered the appellant’s “criminogenic profile for re‑offending” remained high, at least for the short term. Mr Balfour said:
I continue to believe Mr Copeland’s primary diagnoses are a personality disorder, characterised by borderline and antisocial traits, alcohol and polydrug abuse problems, PTSD, and a probably acquired brain injury.
The Approach of the Judge
The Judge referred to the matters which I have summarised above. She said:
Your previous lack of response to leniency and parole would have meant that the inevitable term of imprisonment would involve the imposition of a very lengthy non‑parole period. However, because of the evidence of change I am able to extend some, albeit limited, mercy with respect to the non-parole period that I must impose.
In fixing the penalty the Judge said:
I do not agree that I should impose wholly concurrent sentences for these offences. Having said that, I have regard to the short time [span], if you like, of this offending and that will significantly affect the length of the sentence. The illegal use offence, the using of [the owner’s] car is not to be ignored either, because that was a serious offence. The damage caused to the vehicle was great and you also have many prior offences of that nature. In fixing the sentence that I will now impose I have also had regard to the totality principle.
Consideration of Appeal
The decision of this Court in R v Place[49] indicates that the starting point for a sentence for a single offence of armed robbery will usually be of the order of six to eight years imprisonment. Doyle CJ, Prior, Lander and Martin JJ said:
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.[50]
Of course, this is not an immutable starting point. The circumstances of an individual case may indicate that a higher or lower starting point is appropriate.
[49] [2002] SASC 101; (2002) 81 SASR 395.
[50] Ibid at [100], 429.
The appellant was to be sentenced for three offences of armed robbery in addition to the other offences. This made it inevitable that a sentence greater than the starting point for a single offence would be fixed.
Beyond rejecting the appellant’s submission that the Court should impose separate but wholly concurrent sentences, the Judge did not give any explanation of the way in which the single sentence imposed under s 18A of the CLSA was constructed. It is unfortunate that the Judge did not do so. When s 18A of the CLSA is invoked, it is usually desirable for a sentencing judge or magistrate to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent, and then to determine the aggregate sentence.[51] Of course, there are some circumstances in which it is either unnecessary or inappropriate to determine notional individual sentences. Doyle CJ described such circumstances in R v Symonds[52] in the following terms:
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.[53]
(Emphasis added)
[51] R v Major (1998) 70 SASR 488 at 490, 497; R v Gale [1999] SASC 309 at [18]-[19]; (1999) 74 SASR 235 at 238; R v Tu [2001] SASC 395; (2001) 216 LSJS 297 at [16]; R v Waugh [2005] SASC 470 at [42]; (2005) 93 SASR 274 at 284.
[52] [1999] SASC 217.
[53] Ibid at [22].

In R v Nylander[54] Bleby J elaborated on the circumstances in which it may be unnecessary for a sentencing court to identify individual notional sentences. After referring to the remarks of the Chief Justice in Major and in Symonds, Bleby J said:
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-1999.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.[55]
It can be seen that Bleby J was referring in particular to the circumstance in which the notional starting point may exceed the offender’s life expectancy or in which the reduction from the notional starting point may exceed the ultimate sentence itself.
[54] [2003] SASC 191.
[55] Ibid at [81]-[82].
As I understand the remarks in Nylander, Bleby J was referring to those circumstances in which, even after allowing for concurrency, or partial concurrency of all or some of the notional sentences, the aggregate is still so high as to require a substantial reduction. This is the circumstance which creates the artificiality to which he referred.
When account is taken of the possibility of partial concurrence of individual notional sentences, the present case is not one of this kind.
In my opinion, the general rule as to an appropriate approach is that stated by the Chief Justice in R v Major and in R v Symonds. The converse situation of a sentencing court going directly to a single sentence under s 18A is not the general rule. Rather, it is a course which may be adopted when the general rule cannot, in the circumstances of the particular case, be appropriately applied.
In relation to the obligation of a sentencing court to give some indication of the way in which a single sentence imposed under s 18A is constructed, I venture to repeat an aspect of my reasons in R v Waugh:
Whichever approach is adopted, it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed. Such an explanation is intrinsic in the approach identified in R v Major. That is one of the advantages of that approach. When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved.[56]
(Citation omitted)
Doyle CJ and Sulan J agreed with these reasons. They have also been followed in Germain v Police[57] and Taliangis v Police.[58]
[56] [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284. See also Grzybek v Police [2008] SASC 161 at [19] and R v van der Horst [2006] SASC 243 at [81]-[90].
[57] [2006] SASC 340 at [25].
[58] [2008] SASC 155 at [10].
Doyle CJ also discussed the desirability of a sentencing court giving some explanation of the way in which the single sentence under s 18A is constructed in R v Sevo:[59]
The reason for “building up” the aggregate sentence in this way is that attention to the appropriate sentence for the individual offences, or groups of offences, provides a basis for the sentencing court arriving at a single global sentence for all of the offending. This approach avoids the risk of error through what might be called an unguided or instinctive leap to a single aggregate sentence. There is a risk of error in the latter approach, when there is a number of offences involved, each of them attracting different minimum or maximum penalties. A further reason for spelling out the basis upon which the aggregate sentence is arrived at is that this enables the approach of the sentencing court to be understood and tested on appeal. The reasons for this approach have been considered by this Court in R v Major; R v Gale; and in R v Waugh.[60]
(Citations omitted)
Doyle CJ also went on to repeat that it is not always necessary or appropriate for a sentencing court to go through the process of identifying individual notional sentences but, on my reading, did not modify the general rule about which he had spoken in R v Major and in R v Symonds.
[59] [2006] SASC 124.
[60] Ibid at [18].
In my respectful opinion, in the particular circumstances of this case, the failure of the Judge to give some explanation of the means by which the single sentence of 16 years (in effect a sentence of 16 years and four months) was determined was an error.
In addition to an absence of explanation of the manner in which the head sentence was reached, the Judge’s statement that she had regard to the totality principle creates some uncertainty. Given that the Judge proceeded to fix a sentence under s 18A without accumulating notional individual sentences, it is unclear what use the Judge could have made of the totality principle. The totality principle has little application in a case such as the present in which a judge imposes a single sentence under s 18A without identifying notional individual sentences for each offence. Doyle CJ spoke of the inapplicability of the totality principle in such cases in R v Bennett:[61]
The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s 18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent …
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.[62]
(Citations omitted)
See also R v Knowles;[63] R v E, AD;[64] R v B, RWK;[65] and R v Waugh.[66]
[61] [2005] SASC 55.
[62] Ibid at [15]-[16]. See also R v E, AD [2005] SASC 332 at [36]-[38]; (2005) 93 SASR 20 at 29-30; R v B, RWK [2005] SASC 84 at [24]; (2005) 91 SASR 200 at 204-5.
[63] [2007] SASC 185 at [66]-[69].
[64] [2005] SASC 332 at [36].
[65] [2005] SASC 84 at [16]-[17]; (2005) 91 SASR 200 at 203.
[66] [2005] SASC 470 at [40].
The sentencing of the appellant in the present case involved some complexity. The very seriousness of the offending meant that a severe sentence had to be imposed, and the appellant’s extensive criminal history meant that there was little scope for leniency. In addition, the fact that the appellant committed four separate offences of armed robbery within the space of about one hour added to the complexity of the sentencing task as it raised the question of the extent to which individual sentences, if imposed, should be served concurrently or cumulatively, or only partly concurrently. On the topic of whether sentences should be cumulative or concurrent, Wells J in Attorney-General v Tichy,[67] a case decided before the introduction of s 18A into the CLSA, said:
[A] convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterized as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi‑faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.[68]
[67] (1982) 30 SASR 84.
[68] Ibid at 92-3.
In R v Blain[69] King CJ spoke of the appropriate approach (including the possibility of partial accumulation of sentences) in the following terms:
[G]enerally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed both by the charges in the information and the matters asked to be taken into account. I do not say that is the only way in which it can be done, but it seems to me that it is the most appropriate way.[70] (Emphasis added)
It can be seen that in this passage, King CJ contemplated partial concurrency of individual sentences.
[69] (1984) 115 LSJS 270.
[70] Ibid at 273.
On one view, the appellant’s conduct on 12 October 2007 could be regarded as a single incursion into criminal activity, albeit involving different facets. This is because the offences were committed over a very short space of time, with the appellant going immediately from one place to another to carry out the next robbery. As noted earlier, it is reasonably plain that the appellant had planned his “itinerary” in advance, and that each robbery was not the result of a random or spur of the moment decision. Instead, it was part of a pre-determined course of conduct.
However, in my opinion, such a characterisation of the appellant’s conduct would result in a significant under-estimation of its overall criminality. The appellant planned and carried out separate offences, at separate businesses, at separate places, and involving different victims. There were both common and disparate features of the offending.
The differences in this case in the time, place and victims of the appellant’s offending mean, in my opinion, that the Judge was correct in rejecting the submission that the sentences for all the offences should be wholly concurrent. That is to say, the differing objective features of the offending overrode those features which were more personal to the appellant. In this respect, the reasons of Harrison J (with whom Mason P and Hidden J agreed) in R v Drew[71] in relation to the sentencing of an offender for multiple robbery offences in a short space of time are apposite:
The five offences were committed over a period of six days. Two of them were committed on the same day. There was then a gap of two days before the final offence was committed. The offences in Counts 1 to 4 inclusive did have certain features in common, although Count 3 is arguably quite different from the others for obvious reasons. Count 5 is different from the other four, again for obvious reasons. At one level it would be possible to view all five offences as part of a single, discrete episode of criminality. This submission, however, draws more upon a consideration of certain subjective factors relating to the respondent than upon an objective assessment of the acts said to constitute the offences. I do not think that it would be appropriate to sentence the respondent as if the five offences were all part of a single, discrete episode.[72]
[71] [2007] NSWCCA 331.
[72] Ibid at [42].
In my opinion, if s 18A was not invoked, the offences committed on 12 October 2007 required sentences which were partly concurrent and partly consecutive. By this means, the sentences could reflect the appropriate additional criminality involved in each offence but, at the same time, take account of the elements which the offences had in common. The appellant’s illegal use of the vehicle on 10 October 2007 was a separate and distinctive offence, and the sentence for that offence should be wholly cumulative upon the other sentences.
On this basis, I consider that notional sentences of eight years would have been appropriate for each of the armed robberies, a sentence of six years for the offence of attempted armed robbery and a sentence of two years for the illegal use of the vehicle. It would have been appropriate to direct that the sentence for the second armed robbery commence two years after the first; the sentence for the third commence two years after the commencement of the second; the sentence for the offence of attempted armed robbery commence one and a half years after the commencement of the third; and the sentence for the illegal use commence one year after the commencement of the sentence for attempted armed robbery. This would result in a notional total period of imprisonment of 16 years and six months. That is very close to the Judge’s effective head sentence of 16 years and four months. On that basis, it cannot be said, in my opinion, that the sentence imposed by the Judge was manifestly excessive.
The appellant also complained of the non-parole period of 10 years. In my opinion, the appellant’s complaint is without substance. The Judge did take account of the positive steps towards rehabilitation taken by the appellant. Further, it cannot reasonably be said that the Judge’s determination that 10 years was the minimum period which the appellant should spend in custody in order to achieve the deterrent, punitive and protective purposes of the sentence was inappropriate.
Conclusion
For the reasons given above, I would dismiss the appeal.
KOURAKIS J: I gratefully adopt the summaries of the offending and the proceedings below which appear in the judgments of Gray and White JJ. In my opinion the sentence imposed is not manifestly excessive; nor is it attended by any other error which vitiates the District Court Judge’s exercise of the sentencing discretion.
In my view, this appeal does illustrate the desirability, when the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (CLSA) is exercised, of identifying the sentences which would have been imposed for each offence if the power had not been exercised. At the very least, it is desirable to set out the following matters: the starting point for the sentences on each individual offence, the broad approach taken to accumulation or concurrency, and whether there has been a reduction of the sentence which would otherwise have been imposed, either on account of a guilty plea, or in accordance with the totality principle.
Identifying individual sentences
The power conferred by s 18A CLSA provides a procedural faculty which is calculated to avoid inadvertent error in the announcing and recording of multiple sentences and the calculation of release dates for those sentences by the correctional authorities.[73] Section 18A CLSA does not abrogate sentencing principles governing the accumulation of sentences[74] nor was it intended to render the sentencing process inscrutable. There is obvious utility in explaining how a single sentence imposed pursuant to s 18A CLSA is arrived at by reference to the individual sentences which would otherwise have been imposed for a series of offences. The offender, and the community on whose behalf the prosecution is brought have a real interest in knowing how the criminality, of each of the individual offences, was evaluated and the relative contribution each made to the ultimate sentence.[75] That interest is not as acute, and the practicality of differentiating between offences is more difficult, in the case of multiple charges arising out of a single criminal episode.
[73] In introducing the Bill the Attorney-General said ‘This provision was originally raised by the Senior Judge for consideration as providing a useful sentencing tool, especially in cases involving multiple acts of dishonesty. The amendment has been approved by the Chief Justice and the Department of Correctional Services. The amendment will simplify the task of the sentencer in establishing an appropriate penalty and the setting of a non-parole period. The new provision will also eliminate the risk of miscalculation and errors in complex sentence calculations and avail prisoners of a clear picture of the penalty imposed by the court.’ South Australia, Parliamentary Debates, Legislative Council, 12 February 1992, 2663 (The Honourable CJ Sumner, Attorney-General).
[74] R v Major (1998) 70 SASR 488 at 490, 497.
[75] R v Major (1998) 70 SASR 488 at 490 per Doyle CJ, at 497 per Olsson J; R v Symonds [1999] SASC 217 at [21] – [22] per Doyle CJ with whom Pryor and Mullighan JJ agreed; R v Randall-Smith (2008) 100 SASR 326 at [23] per Doyle DJ; R v Cramp (2010) 106 SASR 304 at [57].
On the present state of the authorities, notwithstanding the public utility in disclosing the individual sentences which would have been imposed a failure to do so when a single sentence is fixed pursuant to s 18A CLSA is not, in itself, an error of law. Even though it is a good rule of practice to do so, it is neither, universally, nor in particular classes of cases, a legal requirement.
The proposition that it is not a universal legal requirement is reasonably clear from the discussion of the question in R v Major.[76] The issue in Major was not the adequacy of the reasons, but whether s 18A CLSA had abrogated the common law sentencing principles governing the imposition of cumulative or concurrent sentences;[77] this Court held that it had not.
[76] (1998) 70 SASR 488.
[77] R v Major (1998) 70 SASR 488.
In R v Symonds[78] Doyle CJ expressly stated that a failure to identify the individual component sentences was not, in itself, an error:
[21]In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under 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.[79]
[78] [1999] SASC 217.
[79] R v Symonds [1999] SASC 217 at [21].

In my respectful opinion the very next paragraph of the reasons of Doyle CJ in Symonds, which is cited by White J, does not hold that a failure to identify the individual sentences will be an error of law unless the case falls within the exceptions mentioned in that paragraph. Rather, the excepted categories are merely illustrative of cases where the application of the rule of practice is pointless. My reading of the passage is confirmed by the result in Symonds. The head sentence was not set aside for error in failing to give adequate reasons. Rather, the head sentence was confirmed because, after identifying the proper term of imprisonment for the separate offences, Doyle CJ held that the sentence, although higher than what he would have imposed, was not manifestly excessive. On the other hand, the non-parole period was set aside, not for an inadequacy of reasons, but because it was manifestly excessive. If the failure to identify the individual sentences was in itself an error, Doyle CJ would have been both required to resentence, and bound to impose the slightly lower head sentence which he thought appropriate.
Even though I have found no appealable error in the failure to identify the sentences, I wish to explain further why it is good practice to do so. In particular, I wish to emphasise the importance of giving careful consideration to the extent, if any, to which individual sentences would have been made concurrent, if s 18A had not been utilised. From the perspective of sentencing principle, the failure to identify the individual sentences conceals the approach taken to accumulation or concurrency, the answer to which, obviously enough, has a great effect on the total sentence.
In R v Dorning[80] this Court affirmed the general principle, which had been stated by Walters J in MacKenzie v Betts,[81] that where offences arise out of the one course of criminal conduct or activity, and are truly connected with each other, the sentences should be concurrent. However the Court in Dorning also accepted the qualifying observation of Mitchell J, made in Robinson v Samuels,[82] that that principle did not go so far as to require the imposition of concurrent sentences for offences of a similar nature not widely separated in time. Dorning had been sentenced to two concurrent sentences for two counts of assault with intent to rob which were then made cumulative on two further concurrent sentences imposed on two counts of armed robbery. The offences were committed over a period of five days for the purpose of obtaining money to travel to New Zealand. The Court held that the connection between the offences was insufficient to characterise them as “one course of criminal conduct”. The Court explained:
Each crime was obviously premeditated and was committed on a different day from the others. In these circumstances the crimes could not be said to have arisen out of the one course of conduct or to have been connected with one another in any relevant sense.[83] (Emphasis added)
[80] (1981) 27 SASR 481.
[81] (1980) 23 SASR 307 at 308.
[82] (1978) 18 SASR 137 at 138.
[83] (1981) 27 SASR 481 at 483.
The reasoning of the Court implicitly raises the possibility that offending committed on the same day, and within a period of time as short as the one hour in which the appellant committed these offences, may properly be considered to be a single course of criminal conduct. In R v Knowles[84] Jacobs J so characterised two offences of armed robbery which the sentencing remarks implicitly suggest were committed on the same day. The motive for both offences was to obtain money to pay business debts. The first robbery was committed on a trailer hire firm and netted just $650. The proceeds of that robbery fell short of Knowles’ financial needs and so he planned the robbery of a bank from which he obtained $9,700. Jacobs J imposed concurrent sentences explaining:
Your two offences bear some relationship to each other, in the sense that you would probably not have been driven to commit the second if the proceeds of the first offence had been sufficient to enable you to pay your debts; with some hesitation but having regard to the total sentences to be served and the whole of the circumstances, I have therefore decided to impose concurrent sentences for these offences.[85]
[84] (1987) 45 SASR 14.
[85] (1987) 45 SASR 14 at 19.
In the following passage from Attorney-General v Tichy[86] Wells J elucidated the competing considerations which are relevant to the concurrent or accumulative sentencing issue:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.[87]
[86] (1982) 30 SASR 84.
[87] Attorney-General v Tichy (1982) 30 SASR 84 at 92-3.
It is difficult, but I think useful, to attempt to identify why it is that very similar and proximate offences committed in furtherance of a single criminal plan warrant, at least to some extent, concurrent sentences.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen[88] Ipp J explained this consideration in the following way:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.[89] (Emphasis added)
[88] (1998) 20 WAR 201.
[89] Jarvis v The Queen (1998) 20 WAR 201 at 207 B-D per Ipp J, approved in Herbert v The Queen (2003) 27 WAR 330.
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single, or a number of, courses of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality. Where, for example, a sentencing judge commences with a notional sentence which is calculated by simply multiplying the sentence which would have been imposed on one of a series of offences, by the number of offences committed in that series, there will almost always need to be a substantial reduction for totality. However, if the notional head sentence is arrived at after making proper allowance for the appropriate degree of concurrency, the artificiality commented on by Bleby J in R v Nylander[90] will seldom arise. In such a case the notional sentence may only need to be adjusted, if at all, to allow some scope for rehabilitation in the circumstances of the particular offender.[91]
[90] [2003] SASC 191 at [81]-[85].
[91] See R v Cramp (2010) 106 SASR 304 at [51]-[52].
The phrase “instinctive synthesis” describes the form of reasoning, which is inductive and not deductive, applied in exercising the sentencing discretion. It is inductive because the point within the legislatively prescribed sentencing spectrum which is chosen by a sentencing judge is derived from a range of material considerations. Moreover, the relative weight of those considerations is in turn affected by the competing purposes of sentencing. Because the form of reasoning is inductive it is generally not possible to take an arithmetic approach except in the case of discrete, largely policy based, reductions in the sentence, which would otherwise be appropriate, for a plea of guilty and cooperation with the authorities.
However, the inapplicability of arithmetic does not mean that a rational, and indeed in one sense mathematical, approach is impermissible. It would be a grave solecism to mistake inductive reasoning for mysticism. Neither the authorities which have sanctioned the phrase, nor s 18A of the CLSA, are authority for such a course. If sentencing is to remain within the province of reason then its results must be capable of explanation. The reasoning process commences with a statement of the purposes of sentencing which are punitive, deterrent and rehabilitative. The next step is to recognise the statutory limits placed on sentencing powers, which generally take the form of maximum and minimum penalties. The prescribed minima and maxima do not only establish the metes and bounds of the power; the principles of parity and proportionality demand that sentences be ordered within those limits in a way which properly reflects, as far as reasonably practicable, similarities and differences between offences.
The sentencing process is complex enough when concerned with single offences. When sentencing for multiple offences the notional maximum penalty available, and the proliferation of variables and differences which confound any attempt at comparison with other sentences, present the judge with a daunting challenge. In my view, there is but one way in which that challenge can be met rationally and transparently. It is by the application of established principles governing the imposition of cumulative and concurrent sentences, having regard to the relative importance of punishment, deterrence and rehabilitation in the particular case.
Conclusion
In this case it is evident from the head sentence that there must have been a substantial degree of overlap between the notional sentences that might have been imposed for each individual offence. The Judge expressly said as much. It is not possible to make any mitigatory finding about the appellant’s motivation for the series of offences because of his denials. Whatever the appellant’s motive may have been, the number, and method of execution, of the offences suggest a great need for personal deterrence. I am not persuaded that it was wrong not to allow for a greater degree of concurrency. I can see no error in the final result. I would dismiss the appeal.