R v Cullen - [2007] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CULLEN
[2007] SASC 225
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Sulan and The Honourable Justice David)
21 June 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
Appellant pleaded guilty to two counts of non-aggravated serious criminal trespass in a place of residence and one count each of theft and common assault – Sentence of 5 years and 3 months imposed by District Court – Appellant previously sentenced by a magistrate to imprisonment for a series of offences covering period of District Court offences – Order that sentences be cumulative – Whether Judge erred in failing to apply principle of totality – Whether the principle of totality was considered at an inappropriate stage – Whether combined effect of total sentence was excessive – Appeal allowed - Appellant re-sentenced.
Correctional Services Act (SA) s 75, referred to.
R v Rossi (1988) 142 LSJS 451; R v Todd [1982] 2 NSWLR 517, applied.
Johnson v R (2004) 205 ALR 346; R v Knight (1981) 26 SASR 573; Mill v The Queen (1988) 166 CLR 59; R v Bruce & Hollick (1988) 71 SASR 536, discussed.
Reg v Faulkner (1972) 56 Cr.App.R. 594, considered.

R v CULLEN
[2007] SASC 225
Court of Criminal Appeal: Bleby, Sulan and David JJ
BLEBY J:
Introduction

This appeal concerns the application of the principle of totality in sentencing where a custodial sentence has already been imposed for a series of offences by one court, and another court imposes a further custodial sentence for another series of offences committed during the period covered by the first series of offences.
The facts
The appellant pleaded guilty on 4 December 2006 in the District Court to two counts of non-aggravated serious criminal trespass in a place of residence and one count each of theft and common assault. The first offence of serious criminal trespass in a place of residence occurred on 18 December 2004 at Walkley Heights (“the Walkley Heights offence”). The second occurred on 3 January 2005 at Medindie, together with the offences of theft and common assault (“the Medindie offences”).
In relation to the Walkley Heights offence, the appellant gained entrance to a residence by breaking through a rear sliding door. A resident of the house was asleep in a bedroom. The appellant entered with the intention of committing theft. He left the premises upon being disturbed by members of the family who lived there returning home.
The Medindie offences occurred at about 1.50am when the appellant entered the residence through a rear kitchen door. He used a screwdriver to remove a plasma television set from the wall of a room inside the house. He believed that the house was then being renovated and was unoccupied. The house was in fact occupied, the victim living there as a caretaker while…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cullen

Details

AGLC: R v Cullen [2007] SASC 225
Case: [2007] SASC 225
Decision Date: 21 June 2007

CaseChat Overview and Summary

The appellant appealed against the severity of the sentences imposed by the District Court, which were for two counts of non-aggravated serious criminal trespass in a place of residence, one count of theft, and one count of common assault. The District Court imposed a sentence of 5 years and 3 months imprisonment, while the Magistrate had previously sentenced the appellant to 4 years, 7 months, and 14 days imprisonment for a series of offences covering the period of the District Court offences, with an order that the sentences be cumulative. The appellant argued that the Judge failed to properly apply the principle of totality, which requires the court to consider the aggregate sentence imposed for a series of offences. The court was required to decide whether the Judge erred in failing to apply the principle of totality and whether the combined effect of the total sentence was excessive.

The court held that the principle of totality must be considered when sentencing an offender for a number of offences. The court must review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle requires the court to take a last look at the total just to see whether it looks wrong. The court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. The court held that the Judge erred in failing to properly apply the principle of totality and that the combined effect of the total sentence was excessive. The court allowed the appeal and re-sentenced the appellant.

The court re-sentenced the appellant to 4 years, 7 months, and 14 days imprisonment for the offences committed between 21 December 2001 and 29 June 2005, with a non-parole period of 2 years from 10 August 2005, and to 2 years and 6 months imprisonment for the Walkley Heights and Medindie offences, with a non-parole period of 1 year and 3 months from the date of the appellant's apprehension. The sentences for the Walkley Heights and Medindie offences were to be served concurrently with the sentence for the offences committed between 21 December 2001 and 29 June 2005. The court held that the principle of totality was considered at an appropriate stage and that the combined effect of the total sentence was not excessive.

Orders

Orders of the court

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Background

Background to the litigation

This appeal concerns the application of the principle of totality in sentencing where a custodial sentence has already been imposed for a series of offences by one court, and another court imposes a further custodial sentence for another series of offences committed during the period covered by the first series of offences.The facts The appellant pleaded guilty on 4 December 2006 in the District Court to two counts of non-aggravated serious criminal trespass in a place of residence and one count each of theft and common assault. The first offence of serious criminal trespass in a place of residence occurred on 18 December 2004 at Walkley Heights (“the Walkley Heights offence”). The second occurred on 3 January 2005 at Medindie, together with the offences of theft and common assault (“the Medindie offences”). In relation to the Walkley Heights offence, the appellant gained entrance to a residence by breaking through a rear sliding door. A resident of the house was asleep in a bedroom. The appellant entered with the intention of committing theft. He left the premises upon being disturbed by members of the family who lived there returning home. The Medindie offences occurred at about 1.50am when the appellant entered the residence through a rear kitchen door. He used a screwdriver to remove a plasma television set from the wall of a room inside the house. He believed that the house was then being renovated and was unoccupied. The house was in fact occupied, the victim living there as a caretaker while renovations were occurring. The victim was upstairs at the time and came downstairs when she heard a noise. She locked the kitchen door. The appellant entered the kitchen from another room carrying the television and pushed the victim aside causing her to fall. That constituted the count of common assault. The action of carrying away the television constituted the count of theft.The appellant’s antecedents The appellant had a substantial criminal history dating back to September 1994. There were many convictions for traffic and drug offences, building breaking and larceny, unlawful possession, receiving, being unlawfully on premises, damaging property, resisting police, breaching a bond and failing to comply with bail agreements. In particular, there was a series of offences committed between 21 December 2001 and 29 June 2005 for which the appellant was convicted and sentenced in the Elizabeth Magistrates Court on 10 August 2005. Those offences included three offences of non-aggravated serious criminal trespass (residential) with associated counts of larceny or theft, illegal interference with a motor vehicle and theft, two offences of driving in a manner dangerous, four offences of driving while unlicensed, one offence of being unlawfully on premises and one offence of breaching bail. The offences of larceny and theft associated with the offences of serious criminal trespass involved, in each case, property exceeding $2,000 in value. For those offences the Magistrate imposed a single head sentence of 4 years imprisonment. When the first of those offences was committed, the appellant was on parole. He then had 7 months and 14 days of unexpired parole to serve. This was required to be added to the sentence fixed by the Magistrate.[1] The total head sentence was therefore 4 years, 7 months and 14 days, for which the Magistrate fixed a non-parole period of 2 years from 10 August 2005.[1] Correctional Services Act 1982 (SA), s 75.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appeal is against the severity of the sentences imposed by the District Court. There is no complaint about the individual sentences if they were for isolated offences. The appellant complains that, in aggregating the sentences, the Judge failed properly to consider the totality of the sentence he imposed for the Walkley Heights and Medindie offences and failed to consider the totality of the penalties for those offences and the offences for which the appellant was sentenced in the Magistrates Court.Consideration of the appeal Evidence before the Magistrates Court and before the District Court indicated that the appellant’s offending the subject of the proceedings in both Courts had been driven by a drug habit involving the consumption principally of cannabis and amphetamines. Reliance was placed in the District Court on the appellant’s conduct in custody as indicating that he was a good candidate for rehabilitation. As can be seen from the Schedule annexed to these reasons, the offending for which the appellant was sentenced in the District Court was part of a continuing pattern of criminal behaviour dictated largely by the appellant’s drug habit. In those circumstances it is necessary to consider the proper application of the principle of totality. In R v Knight,[2] Walters, Zelling and Williams JJ in a joint judgment said:[I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.C.J in Reg. v. Faulkner[3], “at the end of the day, as one always must, one looks at the totality and asks whether it was too much”.[4][2] (1981) 26 SASR 573.[3] (1972) 56 Cr. App. R. 594 at 596.[4] R v Knight (1981) 26 SASR 573 at 576. That passage was quoted with approval in a joint judgment of the High Court in Mill v The Queen[5] where the Court also said:The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[6][5] (1988) 166 CLR 59.[6] Ibid at 62-63.