R v Cullen
[2007] SASC 225
•21 June 2007
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 225Court 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 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.
In arriving at his head sentence of 4 years the Magistrate first determined a notional sentence for each offence or group of offences committed on the same occasion. That came to a total of 76 months. He then deducted 18 months for pleading guilty to each of the charges and a further 10 months on account of time already served in custody, a period of home detention bail and totality. The period in custody had been approximately 8 weeks and the period on home detention bail had been approximately 6 months. The Magistrate did not allocate particular deductions for those periods, but assuming for present purposes that the appropriate deduction on those accounts was a period of approximately 4 months, it would appear that a further 6 months was deducted on account of totality. Full particulars of how the Magistrate arrived at his sentence are set out in the schedule attached to these reasons.
The District Court Proceedings
The District Court Judge sentenced the appellant in respect of the Walkley Heights offence and the Medindie offences on 16 February 2007, while the appellant was still serving the non-parole period determined in the Magistrates Court. The Judge fixed a sentence of 2 years and 3 months imprisonment in respect of the Walkley Heights offence and 3 years in respect of the Medindie offences, having allowed a discount in each case for the appellant’s pleas of guilty. In doing so the Judge was fully aware of the appellant’s past record and of the sentence imposed in the Magistrates Court and the offences for which it was imposed. Having fixed the sentences, the Judge said:
When those offences are accumulated, as they should be, the total is five years and three months. I am not persuaded here that any consideration of totality is merited.
The Judge therefore aggregated the two sentences he had imposed with that imposed in the Magistrates Court, making a total of 9 years, 10 months and 14 days, commencing on 10 August 2005. He then fixed a new non-parole period of 5 years commencing on the same date. Particulars of how the sentencing Judge arrived at his sentence are also set out in the Schedule.
The appeal
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.
As appears from the decision of the High Court in Johnson v R,[7] the lowering of individual sentences may be appropriate where there are common aspects of two or more offences of which a person is being convicted, in order to ensure that the person is not punished twice for the same conduct. That does not apply in this case. Rather, it is a matter of applying the principle expressed by King J in R v Rossi:[8]
These crimes were unrelated crimes, each involving its own distinct criminality and each deserving of the sentences which were passed by the learned sentencing judge for them. It is, therefore, not surprising that the learned sentencing judge made the order that the sentences be cumulative upon one another. This Court has often said that offenders cannot expect a discount for quantity, and it is not to be thought that an offender who continues to offend is to be punished less severely for the subsequent offences.
There can be no complaint, therefore, to my mind, in principle about the judge’s decision to make the sentences cumulative. The problem in the case is that the result of the three cumulative sentences for the offences of armed robbery in addition to the unexpired portion of the previous sentence, is that the head sentence becomes a very long head sentence, almost 30 years, so long indeed as to be properly characterised as a crushing head sentence.
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect ….[9]
However, as Gummow, Callinan and Heydon JJ pointed out in Johnson v R[10] it is not only in a case of an otherwise crushing burden of aggregated sentences that the totality principle may be applied.
[7] (2004) 205 ALR 346; [2004] HCA 15 at [22].
[8] (1988) 142 LSJS 451.
[9] Ibid at 452-453.
[10] (2004) 205 ALR 346 at 355; [2004] HCA 15 at [22].
On the other hand, one must be alive to the warning sounded by Doyle CJ in R v Bruce & Hollick[11] where he said:
However, as is well-established, one has to look at the totality of the punishment imposed, and consider whether, even though justifiable in the abstract, the actual sentence is more than is required for the purposes of punishment and deterrence. The court on numerous occasions has referred to the question of whether the sentence is a crushing one. That is, I consider, another way of stating the same point.
I regard these two cases as very difficult cases. I agree that it is proper to make some allowance, in a manner in which one cannot be precise, for the fact that a term of imprisonment has already been served for offences that are part of the same pattern of conduct. On the other hand, one has to be careful not to simply take a "bulk discount" approach. People who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise.[12]
[11] (1998) 71 SASR 536.
[12] Ibid at 541.
However, there is no doubt that the principle can be applied where sentences are imposed by different courts. In R v Todd[13] the appellant was sentenced in Queensland in December 1974 to imprisonment for 8 years with a non-parole period of 3 years for offences of armed robbery committed in January 1974. In May 1979 he was sentenced in the District Court of New South Wales to imprisonment for 10 years for armed robbery and for other charges. Those offences were also committed in January 1974. In the course of his judgment Street CJ said:
I have formed the conclusion that his Honour fell into error in thus placing aside the sentences served by the appellant in Queensland as having no relevance except in so far as they may shed some light upon his present state of rehabilitation. The fact that the crimes were committed in Queensland operated, of course, to expose the appellant to the processes of the Queensland criminal law. This involved an inevitable deferment of the processes of the New South Wales criminal law being put into effect and carried through against him in this State. But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for a second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.[14]
[13] [1982] 2 NSWLR 517.
[14] Ibid at 519. Moffitt P and Nagle CJ at CL agreed.
That approach was approved by the High Court in Mill v The Queen.[15]
[15] (1988) 166 CLR 59 at 64-66.
Had the District Court Judge been sentencing the appellant for the two sets of offences in isolation, the penalties imposed, served cumulatively, with an appropriate non-parole period, would have been justified. The offences were discrete and isolated offences. Both would have required a separate penalty. There would have been no reason to discount the total any further. That may well be what the sentencing Judge had in mind when he said that he was not persuaded that any consideration of totality was merited.
However, the Judge was not sentencing in isolation. He was sentencing for two sets of offences which were part of a long course of similar conduct, all of which had been driven by the appellant’s drug habit. It is not entirely clear how the offending came to be dealt with by different courts, other than that, in respect of these offences, the appellant was originally charged with and was committed for trial on charges of aggravated serious criminal trespass and more serious associated offences. By the time he was dealt with in the District Court, a fresh Information had been laid to which he pleaded guilty.
It is unfortunate that all of the offending was not dealt with in the one court at the same time. Had that happened, the problem revealed by this appeal may not have arisen.
However, the sentencing Judge was aware of the circumstances of the other offending and of the Magistrate’s sentencing remarks in imposing the earlier sentence. He was aware that any sentence he imposed would necessarily be aggregated with the sentence imposed in the Magistrates Court. He was or should have been aware that the offending was part of a course of conduct involving 21 offences for which the appellant, at that time, had only been partly sentenced.
In the circumstances, the Judge was obliged to look at the total sentence imposed, the pattern of conduct, any additional relevant circumstances which could not have been taken into account in the Magistrates Court, and to ask himself whether, in those circumstances, the combined effect of the sentences was crushing or was more than was warranted.
The Judge did not do that. He considered the question of totality when aggregating the two sentences he imposed. He decided at that point that no consideration of totality was merited. He then aggregated those sentences with the existing one, but failed to address the question of totality at that stage. In doing so he erred.
The total sentence must therefore be reconsidered, bearing in mind the principles stated in the cases to which I have referred.
The Judge referred to and took into account the appellant’s prospects of rehabilitation based on his behaviour, attitude and offers of employment since he had been in custody. In my opinion, a total head sentence of almost 10 years for this offending is excessive and requires some further discount. I am conscious of the fact that the Magistrate allowed some discount for totality in fixing the head sentence he did. I am also conscious of the fact that the notional starting point of the Magistrate of 18 months for each of the non-aggravated serious criminal trespass and associated offences was, if anything, lenient. I must be conscious of not awarding a discount for multiple offending. Nevertheless, I am satisfied that the combined effect of the individual sentences is more than is warranted, and requires some further discount. At the same time, recognition must be accorded to the seriousness of the individual offences and of the need for the penalties for such offences to act as a general deterrent.
In the circumstances, I consider that justice will be served by requiring the sentences fixed by the sentencing Judge to be served concurrently, but cumulatively upon the sentence imposed in the Magistrates Court. It is acknowledged that the Judge mistakenly took that as a sentence of four years, seven months and seventeen days imprisonment, whereas in fact the period was four years, seven months and fourteen days. The total head sentence would therefore be seven years, seven months and fourteen days from 10 August 2005.
The Magistrate fixed a non-parole period for the sentence he imposed of one half of the head sentence. The appellant should not be deprived of that benefit. Taking that into account and the prospects of rehabilitation which have become evident since he has been imprisoned, I would fix a new non-parole period of three years and nine months.
It follows that I would allow the appeal. Save for the sentences of two years and three months imprisonment and three years imprisonment imposed by the District Court I would set aside the sentence imposed by the District Court. I would direct that the sentences imposed in the District Court be served concurrently. I would direct that such concurrent sentences be cumulative upon the sentence imposed in the Magistrates Court of four years, seven months and fourteen days commencing from 10 August 2005. In respect of the total head sentence of seven years, seven months and fourteen days I would fix a non-parole period of three years and nine months from 10 August 2005.
Cullen v DPP
Schedule
Offences for which Mr Cullen was sentenced and penaltiesOffences in ordinary font – sentenced on 10/08/05 in Magistrates Court
Offences in bold – sentenced on 16/02/07 in District Court
Offence Date Charge Notional Sentence (Months) Notional Sentence (Months) 21/12/01 NASCT (Residential) )
) 18
21/12/01 Larceny 14-17/3/02 NASCT (Residential) )
) 18
14-17/3/02 Larceny 13/6/04 Interfere with motor vehicle without consent )
)) 9
)
)
)13/6/04 Theft 13/6/04 Drive in a manner dangerous 13/6/04 Drive unlicensed 28/7/04 Unlawfully on Premises )
) 5
29/7/04 Breach Bail 29/10/04 NASCT (Residential) )
) 18
29/10/04 Theft 18/12/04 NASCT (Residential) Walkley Heights 36 3/1/05 NASCT (Residential) – Medindie )
)) 42
)
3/1/05 Theft 3/1/05 Assault 4/1/05 Driving a motor vehicle without a licence )
)) 4
)
)4/1/05 Drive in a manner dangerous 4/1/05 Drive without due care 29/6/05 Unlawful Possession )
) 4
29/6/05 Drive Unlicensed Total 76 78 Total discount for plea of guilty 18 15 (9 + 6) Balance 58 63 (27 + 36) Credit for time served, home detention
bail and totality 10 -Balance 48 63 Add unexpired period of parole 7-14 - Total 55-14 Add existing sentence 55-14 Total 118-14 = 9 years 10 months 14 days from 10/8/05 Non-parole period = 5 years from 10/8/05
SULAN J: I would allow the appeal. I agree with the reasons of Bleby J and the orders he proposes.
DAVID J: I would allow the appeal for the reasons given by Bleby J. I also agree with the orders he proposes.
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