R v Culley - [2019] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v CULLEY
[2019] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
15 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
Crown application for permission to appeal against sentence; respondent cross-appeal
The respondent was sentenced for trafficking in a controlled drug (on 19 December 2016) for which he was sentenced on 10 December 2018 to four years and 19 days (‘the subject offending’). At the time of sentencing for the subject offending, the respondent was serving a sentence of three years, ten months and 17 days with a non-parole period of two years (‘the earlier sentence’) for 11 counts of trafficking in a controlled drug, two counts of simple possession and one count of possessing a prescription drug without a prescription (in April 2015) which was imposed on 26 May 2017.
The Director contended that the sentence for the subject offending was manifestly inadequate. The respondent contended that he had been wrongly classified as a serious repeat offender such that his non-parole period had been incorrectly calculated.
At time of sentencing for the subject offending, the respondent had served two years of the earlier sentence. The sentencing judge, finding that a sentence of four years and 19 days would be crushing on the respondent, backdated it to commence on 20 December 2017. The effect of the orders was to extend the earlier sentence by one year, two months and two days (‘the effective sentence’). The combined sentence for the earlier and subject offending was therefore five years and 19 days, having commenced on 20 December 2016.
The sentencing judge calculated the length of the non-parole period by reference to the effective sentence to arrive at a non-parole period of two years, 11 months and one week.
The Director sought permission on the grounds that the sentencing Judge erred in:
- applying an inappropriate concurrency in the sentence; and
- having found the respondent to be a serious repeat offender, not fixing a non-parole period that was four-fifths of the overall sentence of four years and 19 days.
The respondent maintained by his cross-appeal that the finding that he was a serious repeat offender was incorrect because:
- for the four-fifths rule to operate, the offence triggering his classification was required to, and did not, occur after the commencement of the Sentencing Act 2017; and
- he was not correctly classified as a serious repeat offender because the counts of the earlier offending were properly characterised as having occurred on a single occasion such that he had not committed three qualifying offences as required by s 53(1) before classification as a serious repeat offender could occur.
The respondent further argued, in the alternative, that if he is a serious repeat offender, the four-fifths rule is confined to the fixing of non-parole periods but not the extension of them, such that it did not operate upon the sentence imposed upon him.
Held per curiam, granting the respondent permission on the cross-appeal but dismissing his appeal, the Director not requiring permission but having established that the sentence was manifestly inadequate warranting re-sentencing, setting aside the sentence imposed by the sentencing judge and resentencing the respondent:
1. The sentencing judge erred in applying concurrency to the sentence imposed. The fact that both the subject and earlier offending arose from the respondent’s drug addiction was not sufficient to warrant concurrency when they were committed 20 months apart. Nor did the principle of proportionality require concurrency when the subject offending was committed whilst the respondent was on home detention bail.
2. The effective sentence was manifestly inadequate, having regard to the need for general deterrence and the aggravating feature of the commission of the offence having occurred whilst the respondent was on home detention bail.
3. Section 53 of the Sentencing Act 2017, construed with the transitional provisions, contains no requirement that the ‘triggering offence’ for qualification as a serious repeat offender must have occurred after the commencement of the Act.
4. The respondent is a serious repeat offender. The earlier offending in 2015, comprising multiple counts of drug trafficking over eight days, did not constitute a single occasion or episode notwithstanding that the offending had common features. There was no continuity of action or thought linking the discrete offences.
5. For the purposes of s 54(1)(b), an extension of a non-parole period is nonetheless a non-parole period that is ‘fixed’.
6. The sentence to which the non-parole period was required to be calculated was the sentence imposed for the subject offending, and not the effective sentence. The sentencing judge was required to find that the non-parole period was three years, two months and 28 days.
7. On re-sentencing, the appropriate sentence for the earlier and subject offending is seven years and 11 months’ imprisonment, being the two sentences aggregated without concurrency. The non-parole period is fixed at five years 10 months.
Sentencing Act 2017 s 47, s 53, s 54 ; Criminal Procedure Act 1921 s 157; Correctional Services Act 1982 (SA) s 66, s 67, referred to.
R v Haradine [2019] SASCFC 144; Tognolini v The Queen (2011) 211 A Crim R 68; Signato v The Queen [1998] HCA 74; 194 CLR 656, applied.
R v Cassidy [2017] SASCFC 134, distinguished.
R v Belczacki [2012] SASCFC 4; (2012) 112 SASR 95; R v Howell [2018] SASCFC 12; R v Standley [2016] SASCFC 141; R v Irvine [2016] SASCFC 104; R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398; (2010) 208 A Crim R 190, discussed.
R v Spiero (1981) 26 SASR 577; R v Mangelsdorf (1995) 66 SASR 60; R v Kong [2013] SASCFC 15; (2013) 115 SASR 425; R v Cleaver [2016] SASCFC 43; R v Curtis (No 2) [2009] SASC 350; (2009) 105 SASR 411; R v Robinson [2003] SADC 182, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"serious repeat offender”, “manifestly inadequate”, “qualifying offences”, “separate occasions"

R v CULLEY
[2019] SASCFC 143
Court of Criminal Appeal: Kourakis CJ, Peek and Hughes JJ
THE COURT:

The Director of Public Prosecutions applied for permission to appeal against a sentence imposed by a Judge of the District Court on the respondent for one count of trafficking in a controlled drug. The Director’s application has two grounds. The first relates to the sentencing Judge’s order for partial concurrency with a sentence that the respondent was already serving. The second relates to the calculation of the non-parole period pursuant to the serious repeat offender provisions in the Sentencing Act 2017. The Director says that together, these aspects of the sentencing decision resulted in manifest inadequacy and error in the sentence.
The respondent cross-appealed. He contends that he was incorrectly found to be a serious repeat offender, and that the non-parole period was incorrectly calculated for that reason.
Overview of the earlier offending and the subject offending
The application and cross-appeal require consideration of two sentences. In April 2015 the respondent committed 11 counts of trafficking in a controlled drug, two counts of simple possession and one count of possessing a prescription drug without a prescription. The offences were admitted to have occurred against a background of a course of conduct of trafficking over two to three years. CCTV footage from the respondent’s house provided evidence of numerous drug sales occurring. The respondent spent seven days in custody in June 2015 and then remained on home detention bail during the sentencing process.
Shortly after being placed on home detention bail awaiting sentencing for the earlier offending, the subject offending occurred, on 19 December 2016. Police attended the respondent’s residence and conducted a search. They located the 63.1 grams of methylamphetamine in a tub in the refrigerator. He subsequently pleaded guilty to trafficking in a controlled drug. The basis on which he was sentenced for this offending was that the respondent stored the drugs for a person, whom he declined to identify, in the knowledge that the person intended to sell the drugs. The respondent did so in order to secure a benefit for himself, namely provision of some of the drugs for his own use, and also because the person had asked him to do so because he was at risk of apprehension. He was taken into custody 20 December 2016 for this conduct.
The two sentences
On 25 May 2017, the respondent was sentenced for the earlier offending that had occurred in April 2015. The sentencing Judge’s starting point was a sentence of imprisonment for four years and six months. After a reduction for his plea and time spent in custody, the respondent was sentenced to imprisonment for three years, 10 months and 17 days with a non-parole period of two years (“the earlier sentence”). The earlier sentence was backdated to commence on 20 December 2016 when he had been taken into custody. It might be observed that this was a sentence at the lower end of the range for what was an established sales enterprise, but no challenge was brought at the time.
The offending that gave rise to the subject sentence occurred whilst the respondent was on home detention bail during the sentencing process for the earlier offending. The subject offending occurred on 19 December 2016.
In respect of the subject offending, the respondent was sentenced by a different Judge of the District Court on 10 December 2018 for one count of trafficking 63.1grams of mixed weight methylamphetamine for which the maximum penalty was 10 years imprisonment or $50,000 or both. He was sentenced to four years, six months for the offending. He was entitled to a 10 per cent reduction in his sentence for his plea, such that it was reduced to four years and 19 days. This is the sentence that is the subject of the application and cross-appeal.
At the time of sentencing for the subject offending, the respondent had served just under two years of the earlier sentence. The sentencing Judge considered that the imposition of the sentence of four years 19 days would be crushing upon the respondent. His Honour ordered that the new sentence should commence on 20 December 2017 and thereby made it partially concurrent with the earlier sentence. The effect of this was that the sentence being served was extended by one year, two months and two days. For the combined 2015 and 2016 offending the total sentence was five years and 19 days from 20 December 2016.
The non-parole period of two years imposed on the earlier sentence was reviewed and extended to two years, 11 months and one week.
The sentencing remarks
The sentencing Judge described the facts of the offending and observed that the offending breached a bail agreement that the respondent had entered into on 19 April 2016. The Judge described the earlier offending and the sentence. The remarks describe the respondent’s prior convictions for drink driving in 2017, driving under disqualification in 2014 and breaches of bail in August and September 2016. The Judge canvassed the respondent’s personal circumstances at some length including the various supportive references that had been supplied to the Court for the earlier offending and the subject offending. His Honour then said:
Against that background I turn to the question of sentence. Taking part in the distribution of methylamphetamine, even to what might be described as the limited extent you did, in storing the drug for someone who was apparently at risk of apprehension, contributes to community harm in the sense that those who consume the drug, as you well know, face the risk of suffering physical and psychiatric harm, damage to relationships, loss of employment and perhaps, in turn, might be led into crime to feed the additional to that insidious drug.
In imposing sentence it is necessary to again reflect to you the seriousness with which such offending is regarded and to appropriately punish you for the offending although I accept that those objectives have, in a sense, in large part been achieved by the sentence you are currently serving. It is also necessary to reflect to others the seriousness with which such offending is regarded.
The offending is made more serious because it was committed while you were on home detention bail after your arrest on earlier drug trafficking charges. The fact that you continued to offend in those circumstances perhaps reflects the depth of the addiction to methylamphetamine to which you had descended.
After imposing the sentence of four years and 19 days, the Judge turned to the issue of concurrency and said:
The current offending, separated as it was in time from the offending for which you are serving a sentence, is clearly a separate incursion into criminal offending. However, it is linked by the common thread of your deep and insidious addiction to methylamphetamine. The issue arises as to whether the sentences should be served cumulatively or partially concurrently.
After consideration of certain portions of the decisions of this Court in R v Belczacki[1] and R v Copeland (No 2),[2] the Judge found that it was appropriate to direct that the sentence be served partially concurrently with the earlier sentence. The Judge said:
In doing so, I also have regard to the fact that you have already served a period of almost two years imprisonment. To make the sentence wholly cumulative would, in my view, result in a sentence that was crushing. By using the mechanism of partial concurrency there is no need to go on to consider the question of totality as the adjustment which might have been taken to assess totality is factored into the order for partial concurrency.
[1] [2012] SASCFC 4; (2012) 112 SASR 95.
[2] [2010] SASCFC 61; (2010) 108 SASR 398; (2010) 208 A Crim R 190.
The Judge proceeded to make the new sentence partially concurrent with the earlier sentence by backdating the new sentence to commence from 20 December 2017. Finally, his Honour dealt with the non-parole period and in particular his obligations regarding the respondent’s status as a serious repeat offender as follows:
[…] I am required by the Sentencing Act to impose a non-parole period of not less than four-fifths of the current sentence imposed. I regard the sentence imposed for that purpose as being the length of the increase in the sentence to be served. That is a period of one year, two months and two days. Four-fifths of that amount is 11 months and one week. I am required to extend the non-parole period by that amount. That makes the non-parole period two years, 11 months and one week to operate from 20 December 2016. Accordingly, you will be eligible for parole on 27 November 2019.
The application, the appeal and the issues that arise
The Director of Public Prosecutions maintains that the effective sentence of one year, two months and two days is manifestly inadequate in respect of the respondent’s conduct. The Director submitted that the sentencing Judge erred in the extent of concurrency applied. Further, the Director alleges an error in the calculation of the non-parole period under the serious repeat offender provisions. The respondent cross-appealed in relation to the characterisation of the respondent as a serious repeat offender and, in the alternative, in the calculation of the non-parole period. Several significant questions of interpretation arise from the respondent’s appeal grounds and the second of the Director’s appeal grounds, because the questions raised by them have not previously been considered by this Court. For the reasons that follow, we would grant permission to the respondent to bring his appeal on each of his three grounds, though dismiss his appeal. Pursuant to s 157(2) of the Criminal Procedure Act 1921, the Director may bring his appeal without permission if the convicted person is granted permission to appeal against sentence. In any event, the Director’s ground two raises a matter of sufficient importance for permission to be granted.
Two applications were brought by the Director for the consideration of the Court of Criminal Appeal as constituted in the March sittings each requiring the proper construction of the serious repeat offender regime in the Sentencing Act 2017. The other proceeding is R v Harradine. These two proceedings provide an opportunity to the Court to consider the legislative provisions in different factual circumstances.
Concurrency and manifest inadequacy
In relation to the sentence imposed, the Director submitted that the starting point of four years and six months was appropriate. The Director observed that in sentencing for the subject offending, the Judge accepted the respondent’s version of events but neither the respondent nor the Crown had established facts that shed sufficient light on the respondent’s actions to enable a finding of moral culpability less than the Court would usually assume for the participation in the distribution of illicit drugs.
The Director accepted that it was open to the sentencing Judge to use concurrency in the sentencing exercise on either of the two bases upon which concurrency is properly used, which are discussed further below. However, the Director’s submission was that the use of that mechanism in the way that it was employed led to a sentence that was manifestly inadequate.
Whether sentences should be concurrent and the extent to which the mechanism should be used is a function of the extent of the connection between the offending the subject of the sentences and the overarching need to achieve a sentence that reflects the criminal conduct and the circumstances of the offender.
Peek J described the relevant principles in R v Belczacki[3] as follows:
[3] [2012] SASCFC 4; (2012) 112 SASR 95 at 105 [41] per Peek J (Blue J concurring).
Concurrency of sentence
Thomas, Principles of Sentencing refers to the core principle of concurrency of sentence as the “one-transaction rule” and states:
The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive.
This core principle has long been recognised in Australia. In 1974 in Dicker v Ashton, Wells J stated:
I am of the opinion that, unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated, and that simply represent facets or the one course of conduct.
In R v Dorning Walters, Zelling and Williams JJ identified the same principle stating:
The general principle is 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.
Of course, words such as “course of criminal conduct” or “activity” or “one transaction” or indeed “one multi-faceted course of criminal conduct” will always be somewhat unspecific. The matter is really one of degree and the approach is by reference to proximity to, or distance away from, a postulated core principle. A passage from the judgment of Wells J in Attorney General v Tichy is often referred to in this context and is as follows:
... 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. ... (footnotes omitted)

In R v Standley[4], Blue J (with whom Kelly and Doyle JJ agreed) elaborated on the bases on which concurrency might properly be used as follows:
In very broad terms, there are potentially two fundamental rationales for ordering that sentences be made wholly or partially concurrent. The first rationale is the principle of double jeopardy in its application to sentencing (as opposed to conviction) pursuant to which a defendant is not to be punished twice for the same crime. Where there is an overlap between the elements of two offences committed by engaging in a single criminal activity, a sentence that would be appropriate for the second offence if it were committed independently should not be fully accumulated with a sentence that would be appropriate for the first offence if it were committed independently.
[…]
The second rationale is the principle that the punishment should be proportionate to the crime. When a defendant is sentenced for a single crime, the sentence must be proportionate to the criminality (the principle of proportionality). When a defendant is sentenced for multiple crimes, the total sentence (if section 18A is utilised) or total of the sentences (if separate sentences are imposed) must be proportionate to the total criminality. This is sometimes called the principle of totality, which is a specific application of the principle of proportionality to the case of multiple offending. Application of the totality principle often results in a non-linear increase in the total sentence as total length of imprisonment increases. The principles of proportionality and totality have application together with the principle of double jeopardy in the situations referred to in [40] above. Leaving aside that situation, the principle of totality applies in various circumstances, of which two are the most common.
The first circumstance occurs when a defendant engages in a course of criminal conduct involving the repeated commission of multiple crimes of the same nature. In this circumstance, the total criminality will often be assessed differently to the sum of the criminality involved in each individual crime. Once a certain point is reached, the total sentence appropriate to the totality of the offending will be less than the sum of individual sentences that would have been imposed for isolated offences. If separate sentences are imposed, this can be achieved by ordering a measure of concurrency or by reducing the individual sentences. If a single sentence is imposed pursuant to section 18A, this can be achieved directly by fashioning the single sentence so that it is proportionate to the course of conduct as a whole.
[…]
The second circumstance occurs when merely accumulating individual sentences for individual crimes (whether related or unrelated) would result in a total sentence or sentences that is or are disproportionate to the total offending, having regard in particular to the defendant’s life expectancy. This applies particularly to heavy sentences. (footnotes omitted)
[4] [2016] SASCFC 141 at 9 [40], 10 [42]-[43], 11 [44].
The sentencing Judge’s remarks allude to an overlap in the subject offending with the earlier offending by virtue of the common motive for both. His Honour said:
The current offending, separated as it was in time from the offending for which you are serving a sentence, is clearly a separate incursion into criminal offending. However, it is linked by the common thread of your deep and insidious addiction to methylamphetamine. The issue arises as to whether the sentences should be served cumulatively or concurrently.
The Director conceded that a common motive for multiple incidents of offending can create the requisite connection between otherwise discrete offences to warrant concurrency. This may be so even where the offending, as in this case, did not constitute a course of conduct. Kourakis J, as his Honour then was, in R vCopeland (No 2)[5] summarised the manner in which a common motive between offending may be a basis for applying concurrency as follows:[6]
[5] [2010] SASCFC 61; (2010) 108 SASR 398; (2010) 208 A Crim R 190.
[6] (2010) 108 SASR 398 at 424 [99]-[100].
In R v Dorning this Court affirmed the general principle, which had been stated by Walters J in Mackenzie v Betts, 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, 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. (Emphasis added.)
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 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.
(footnotes omitted)
Kourakis J went on to say:[7]
[7] (2010) 108 SASR 398 at 425-426 [102]-[106].
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 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 of 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.
(Emphasis added)
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 course, 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 respondent’s 2015 and 2016 offending were not instances of “similar and proximate offences committed in furtherance of a single criminal plan”. The earlier offending was trafficking drugs by way of a home business to create income. The subject offending took place eighteen months after the earlier offending and was the storing, at a different address, of a quantity of drugs belonging to a third person in exchange for keeping a small quantity for personal use and to assist that other person evade police detection.
Further, where the motive that explains two instances of offending is drug addiction, the strength of the connection is diluted by virtue of the prevalence of this motive for offending. In R v Spiero (1981) 26 SASR 577 the Court said:
In our view, merely to establish that the motive for committing crimes of a different nature committed on separate and distinct occasions […] was the same in each case does not establish that the crimes were connected in any relevant sense. [8]
[8] (1981) 26 SASR 577 at 579 per Walters, Zelling and Williams JJ.
This length of time between offences militates against concurrency that is said to be based on the connection between the two instances offending. So too does the fact that the subject offending was committed while the respondent was on home detention bail and the sentencing process for the earlier offending was underway. Far from being “a single criminal plan”, the subject offending took place at a time at which it might be expected that the respondent would be reflecting upon the consequences of his earlier offending.
We do not consider that the overlap in the type of offending or the motivation underpinning the offending justifies concurrency in this case. Such justification, if it exists, must be derived from the principle of proportionality against the background of the earlier offending and the earlier sentence that the respondent was serving. The respondent directed the Court to the Chief Justice’s remarks in R v Cassidy[9] and in particular the following passage:[10]
There are necessarily limits on the extent to which sentences can be imposed cumulatively. First, as the penalties are accumulated the requirement for personal deterrence, and the weight attached to it, is relatively reduced and the relative severity of the punishment increased by the circumstance that the offender only commences to serve each cumulative term after serving each preceding term is served and after long periods of earlier imprisonment.
[…]
The abovementioned considerations militate against a linear arithmetic accumulation of sentences. Instead as more sentences are imposed they will have a relatively smaller effect on the total head sentence and will follow what might be described as a logarithmic function.
There is a further limit on a linear accumulation. For offences falling in the lower end of the criminal calendar which individually would not warrant long sentences, it is both possible and desirable to take a graduated approach to personal deterrence. Sentences of imprisonment may be increased incrementally having regard to the length of sentences previously imposed. Of course, ultimately, if an offender persists in recidivistic offending, the total head sentence for multiple offending may be as severe as sentences imposed for much more serious offences.
[9] [2017] SASCFC 134.
[10] [2017] SASCFC 134 at 6-7 [23]-[25] per Kourakis CJ (Peek and Nicholson JJ agreeing).
The difficulty with the respondent’s reliance upon this passage is that a factual comparison undermines the analogy. Kourakis CJ’s remarks were made in the context of sentencing for significant numbers of discrete offences and the dangers of accumulation in such situations. In R v Cassidy the court had the difficult task of sentencing for 37 offences involving different victims and circumstances over approximately six months. The principles set out in R v Cassidy have limited application to the respondent’s single offence some 20 months after his earlier offending. Concurrency was not an appropriate sentencing tool in this matter.
The sentence as constructed was manifestly inadequate
The sentencing Judge’s commencement with a sentence of four years, six months was based on the comparable sentence for a single instance of trafficking in R v Howell.[11] The respondent maintains, and we accept, that there were some features of the offending that might have justified a lower starting point. Whereas R v Howell involved a single sale transaction for profit, the respondent’s benefit was only to obtain methylamphetamine to support his addiction. The amounts of the drug in the two cases were similar but higher in R v Howell by some 20 grams. On the other hand, R v Howell entailed significant evidence of steps toward rehabilitation, whereas the respondent’s offending had the aggravating feature of having been committed whilst the respondent was on home detention bail for the earlier offending.
[11] [2018] SASCFC 12.
Whilst the sentence of four years, 19 days was within the range of four to seven years for this type of offending as described in R v Mangelsdorf,[12] R v Kong[13] and R v Cleaver,[14] it is the effective sentence about which the Director complains. The effective sentence achieved after concurrency was employed was one year, two months and two days. Given that the offending entailed participation in the distribution chain of methylamphetamine, and the need for general deterrence in respect of breaching home detention conditions, the effective sentence was a serious departure from a sentence that would achieve those objectives. There was no basis proffered to support a merciful approach. The effective sentence was manifestly inadequate and, subject to the respondent’s arguments, we would grant permission to the Director, allow his appeal on ground 1 and re-sentence the respondent. However, several questions regarding the proper interpretation of the Sentencing Act 2017 require consideration before the sentence may be re-visited.
[12] (1995) 66 SASR 60.
[13] [2013] SASCFC 15; (2013) 115 SASR 425.
[14] [2016] SASCFC 43.
Is the Respondent a Serious Repeat Offender?
The respondent was sentenced as a serious repeat offender. The Director’s second ground is that there was an error in the calculation of the non-parole period required to be imposed on the respondent. Section 53 of the Sentencing Act 2017 states:
53—Serious repeat offenders
(1)A person will, by force of this subsection, be taken to be a serious repeat offender if—
(a)     the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions a category A serious offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(b)     the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(c)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(d)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a category A serious offence (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences.
The consequences of being so classified are contained in s 54, which provides:
54—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)     the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
The Director’s contention that there was a sentencing error was made on the basis that the sentencing Judge was required to impose a non-parole period that was four-fifths of the sentence of four years and 19 days. Having instead made the sentence concurrent with the earlier sentence and then applied the four-fifths rule to the balance that was cumulative on the earlier sentence, his Honour then extended the non-parole period by that amount. The Director submitted that this was an error. Before considering that error, it is necessary to resolve one aspect of the respondent’s cross-appeal which would, if successful, render otiose consideration of the Director’s argument. The respondent maintained that he is not a serious repeat offender and that therefore the four-fifths rule does not apply to him.
The first of the respondent’s grounds is that the characterisation of the respondent as a serious repeat offender entails giving retrospective effect to the relevant provisions of the Sentencing Act 2017 inconsistent with the proper interpretation of such provisions.
It is convenient to refer to the offences that enliven the operation of s 53 as ‘qualifying offences’ and the third of them as the ‘triggering offence’, being the offence that causes an offender to be classified as a serious repeat offender.
The respondent contended that he is not a serious repeat offender because, on a proper construction of s 53, the triggering offence must have occurred after the commencement of the Sentencing Act 2017. All of the respondent’s offending occurred prior to the commencement of the Act.
The respondent contended that to achieve the classification of a serious repeat offender based on offences committed prior to the commencement of the Act would be to give retrospective effect to the Act where there was insufficiently clear expression of such an intention. The respondent supported this argument by reference to the presumption against retrospectivity in the interpretation of statutes, and in particular penal statutory provisions.

The respondent relied upon R v Curtis (No 2)[15] in support of the proposition that the scheme should be deemed only to imply retrospectivity for qualifying offences but that the offence enlivening the classification (the triggering offence) must have occurred since the commencement of the Act.
[15] [2009] SASC 350; (2009) 105 SASR 411.
The decisions of R v Curtis (No 2) and R v Robinson[16] which deal with retrospectivity under the predecessor regime of s 20B of the Criminal Law Consolidation Act 1935 (“CLCA”) as amended in 2003 and to which the Court was referred, do not assist in the construction of Part 3, Division 4 of the Sentencing Act 2017. Part 3, Division 4 must be construed with reference to the transitional provisions to discern its meaning. The transitional provisions state:
[16] [2003] SADC 182.
(1)    Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
(2)    However—
(a)    the old sentence reduction provisions of the repealed Act will continue to apply in relation to the sentencing of a defendant for an offence where the proceedings for that offence are commenced before the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017; while
(b)    the new sentence reduction provisions of this Act will apply in relation to the sentencing of a defendant for an offence where the proceedings for that offence are commenced after the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017, regardless of when the offence was committed.
(3) In this clause—
new sentence reduction provisions means Part 2 Division 2 Subdivision 4 of this Act;
old sentence reduction provisions means sections 10A, 10B and 10C and Part 2 Division 6 of the repealed Act;
repealed Act means the Criminal Law (Sentencing) Act 1988 repealed by clause 1.
A sentencing judge is directed by section 53(2) to include the subject offence when determining whether the person qualifies as a serious repeat offender. The transitional provisions apply the new Act including the serious repeat offender consequences, to the offence for which the defendant is being sentenced “regardless of whether [that offence] was committed before or after” the commencement of the Act. Together, these provisions establish that the triggering offence is an offence may have occurred prior to the commencement of the Act.
The difficulty with the respondent’s contention is that the presumption of retrospectivity does not defeat the transitional provision. The provision is broadly stated. The entire Act concerns sentencing. It is apparent on its face that the transitional provision will operate upon, at least, sentencing of offenders whose offences were committed prior to the commencement of the Act but whose sentencing occurred after the commencement of the Act. It might be argued that this is the only circumstance that was contemplated by the legislature. Undoubtedly it is the most obvious. However, there is no reason to limit the operation of the transitional provision in that fashion. In particular, the exceptions in clause 2(2)(a) and (b) serve to undermine any such limitation. The exceptions establish that the legislature has identified situations in which it does not intend that the new Act should apply. It could have done so in relation to the serious repeat offender scheme but did not do so. Alternatively, the drafting of s 53 could have achieved the outcome contended for by the respondent. Section 53 could have included a requirement that one of the occasions upon which a qualifying offence occurred had to have occurred after the commencement of the Act. It does not include such a provision. An almost identically-worded transitional provision concerning amendments to sentencing legislation in the Northern Territory was considered by the High Court in Signato v The Queen[17]. Special leave for a ground of appeal asserting that the transitional provision did not have the effect of applying the new provisions to the appellant whose offending occurred prior to the amendments was refused. The appellant nevertheless argued that the provisions should not apply to him in particular because of a delay in his sentence. The High Court said:[18]
The Court of Criminal Appeal held, on the true construction of the legislation, and upon the basis of common law principles as to the operation of statutes[19], that those new provisions applied to the sentencing of the appellant. Special leave to appeal against that part of the decision of the Court of Criminal Appeal was refused. Parliament intended the new sentencing regime to apply to persons in the position of the appellant.
The appellant sought to circumvent this conclusion by relying on one of the sentencing guidelines set out in s 5 of the Act. At the end of sub-s (2), which sets out matters to which a court is obliged to have regard in sentencing an offender, it is provided that the court shall have regard to:
"(s) any other relevant circumstance."
Senior counsel for the appellant did not seek to argue that the mere fact that the offence was committed before the commencement of the Act was a relevant circumstance. To do so would be to seek to construe par (s) as including, without expressing it, a transitional provision radically altering the operation of the Act. Indeed, it would be to repeat one of the arguments in respect of which special leave to appeal was refused. Nor did he seek to advance a general proposition to the effect that a court, sentencing a serious sex offender after the commencement of the Act, should take the abolition of remissions into account. Such an argument would be inconsistent with s 58(1), which addresses that subject, but applies only to sentences of less than 12 months.
The argument was that, in the particular circumstances of the present case, which included the fact that some of the delay in bringing the appellant to trial occurred as a result of the conduct of the complainant, and was not the fault of the appellant, fairness and "equal justice" required that the appellant should not be punished more severely than he would have been had he been sentenced before the commencement of the Act. Thus, on the individual facts of this particular case, the consideration that the appellant was being punished for an offence committed before the operation of the Act was a "relevant circumstance".
This argument should be rejected. The Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act. Giving effect to that intention produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced. This is not relevantly inequality before the law. It is a consequence of a change in the law. The circumstances which, in a given case, meant that an offender came under the new regime could vary greatly. The Legislative Assembly could have enacted transitional provisions to cover such cases, but it did not do so, and this failure to do so must (in the light of the transitional provisions that were made) be taken to be deliberate. (Emphasis added)
[17] [1998] HCA 74; 194 CLR 656.
[18] [1998] HCA 74; 194 CLR 656 at 662, [13] – [17].
[19] See: Rodway v The Queen (1990) 169 CLR 515 at 521-523.
For these reasons, we would reject the respondent’s argument regarding retrospectivity. Section 53 contains no requirement that the triggering offence must have occurred after the commencement of the Act. In those circumstances, there is no room within which the presumption might operate.
Whether the respondent’s 2015 offending was on separate occasions
The respondent’s second ground of appeal also related to his classification as a serious repeat offender. The respondent maintained that his offending established only two ‘occasions’ of offending within the meaning of that word in s 53(1)(b).
In R v Harradine[20] the Court was required to consider what constitutes an ‘occasion’ for the purpose of s 53(1). In that case Hughes J observed that since 2003, the occasions that, if sufficiently accumulated, enliven a defendant’s classification as a serious repeat offender are occasions of conduct and not, as they had previously been, occasions of conviction. It is convenient to repeat some of those observations here. Hughes J said:[21]
In its current context within the Sentencing Act 2017 the term “occasion” connotes an event defined by reference to temporal limits. In the context of s 53, the relevant event is the offending conduct. An occasion in the context of offending conduct identifies a period from the beginning to the end of that conduct. However, offending conduct is constituted both by physical acts and a mental state. A mental state may endure continuously for a period in which distinct physical acts occur, creating uncertainty as to whether one or several occasions best describes the events.
[20] [2019] SASCFC 144
[21] [2019] SASCFC 144 at [82]
In Tognolini v The Queen[22], the court drew a useful distinction between the characteristics of an ‘act’ and an ‘occasion’, the latter of which “is a reference to a junction of circumstances amounting to an episode.”[23] This analysis of what makes occasions separate from one another is apt to assist the proper interpretation of the term in the Sentencing Act 2017. The Court in Tognolini found that separation might be a function of time or circumstance.[24] The Court said:[25]
Of more immediate relevance is a recent decision of the Northern Territory Court of Criminal Appeal, to which senior counsel for the Crown helpfully drew our attention. In Kelly v R, Riley J said of a similar provision:
There is nothing in the section or in the expression ‘three or more occasions’ to suggest the legislature intended that any particular period of time or any particular circumstance would constitute an occasion. In my view, the word ‘occasions’ within the expression contemplates at least three separate events or occurrences. There would not be more than one occasion if the acts were effectively part of one continuous occurrence. Whether two or more acts defined to constitute an offence of a sexual nature occurred on one or more occasions will always be a matter of fact for the jury to resolve. However, in my view, for more than one act to be described as occurring on a separate occasion there must be present, at least, a temporal separation or a separation in circumstances between the acts sufficient to warrant such a description.
We respectfully agree. As McHugh J said in KRM, the ‘occasion’ on which an act takes place will be defined for the purposes of s 47A – and must be identified by the prosecution – by reference to the surrounding ‘circumstances or occurrences’. Where two (or more) acts occur, it will not be open as a matter of law to conclude that they occurred on separate ‘occasions’ unless there is a clear separation in time or circumstance between the acts. DDJ, for example, was a case where, although the circumstances of the sexual abuse remained largely unchanged throughout the sexual relationship, the individual acts relied on to establish the s 47A count occurred on different days and, hence, on separate occasions.
In the present case, as senior counsel for the Crown properly conceded, the sexual acts relied on were not separated in either time or circumstance. As described by the complainant, the individual sexual acts took place as part of an unbroken sequence of sexual activity on the final night. This was a single occasion, a single episode. As a matter of law, therefore, the evidence of the individual acts which took place on that night could not have established the s 47A count. (footnotes omitted, my emphasis)
[22] (2011) 211 A Crim R 68.
[23] (2011) 211 A Crim R 68 at 72 [19].
[24] (2011) 211 A Crim R 68 at 70 [4].
[25] (2011) 211 A Crim R 68 at 73 [21]-[23].
Applying that to the relevant provisions of the Sentencing Act 2017, in R v Harradine, Hughes J said:[26]
It is possible to discern, then, that an occasion may give rise to multiple identical or different offences, but also that multiple offences of the same nature can properly be characterised as separate if they are temporally or circumstantially distinct. To analyse it by analogy to a course of conduct, however, would be imprudent. The phrase “course of conduct” is employed in the Sentencing Act 2017 and was not used for this Division. Nevertheless, it is evident from the Second Reading Speech, to which resort may be had for the ascertainment of the mischief the provision is directed at addressing, that an occasion was intended to cover both an isolated incident and a course of conduct. (footnotes omitted)
[26] [2019] SASCFC 144 at [85]
Turning to the factual circumstances of the respondent’s offending, it is necessary to first consider the earlier offending in 2015. That offending was described by the sentencing Judge as follows:
You were originally charged with a total of 43 counts of trafficking, however on 5 August 2016 you pled guilty to counts 4,7, 13.15, 22, 23, 27, 33, 36, 3, 39, 41, 42 and 43 which were accepted in satisfaction of the information. The pleas to counts 41 and 42 were to simple possession, based on the fact that the CCTV footage shows you to be a substantial user of drugs yourself. The remaining counts relate to trafficking that is disclosed by the CCTV footage. On each of those nine occasions between 13 April 2015 and 27 April 2015, the day before the police attendance, you are shown selling bags which you admit by your plea were methylamphetamine to people attending your house.
It is agreed that the CCTV shows constant ongoing offending and it is agreed that the charged counts to which you have pled guilty are representative of and committed against a background of a course of conduct of ongoing trafficking represented in the entire footage tendered showing you using your lounge room almost exclusively for running your drug business. The footage shows you receiving, handling and counting out significant amounts of money, sometimes into $1,000 bundles, such that large amounts of money were being earnt by you over time in this enterprise.
You were using the money you made from trafficking to support yourself both in terms of your drug use and your costs of living.
It is not disputed that this drug selling has been going on for years.
The respondent argued that these counts amounted to a course of conduct that should be viewed as a single occasion for the purpose of s 53. We reject that characterisation. Whilst the instances of offending had common features, it cannot properly be characterised as amounting to a single occasion. The trafficking occurred in nine sales transactions over fifteen days. Each occurred at the respondent’s home. Each involved the sale of drugs. The respondent was sentenced on the basis that his conduct represented a “single ongoing course of trafficking” such as to warrant a single sentence reflecting “the criminality of that course of conduct”.[27] However, there was no continuity of action or thought linking the discrete offences such as to create an episode. In this regard the respondent’s actions are to be distinguished from the actions over several hours that constituted the occasion of offending perpetrated by the offender in R v Harradine. Here, the respondent’s offences were discrete, repetitious acts.
[27] Sentencing remarks of Judge Stretton 26 May 2017 at p 4.
The respondent’s numerous discrete occasions of offending triggered his characterisation as a serious repeat offender. It is therefore unnecessary to consider whether the 2016 offending was separate from the 2015 offending or to rely on the 2016 offence as a qualifying offence.
The respondent is a serious repeat offender and the respondent’s second ground of appeal fails.
Does the four-fifths rule apply to the fixing of the non-parole period or also to extending it?
The respondent further argued that if he is a serious repeat offender, the four-fifths rule did not apply to this sentence because the sentence did not entail the fixing of a non-parole period.
The respondent maintained that the serious repeat offender scheme should be understood to require a sentencing judge to ensure that a non-parole period fixed following the imposition of a sentence is at least four-fifths of the length of the sentence. On the respondent’s case, when a sentencing judge is extending a non-parole period that is already in place pursuant to s 47 of the Sentencing Act 2017, the non-parole period is not being fixed.
The Director contended that the extension of the non-parole period as occurred in this case amounted to the fixing of a non-parole period in relation to the sentence. The Director maintained that the use of the broad phrase “in relation to” expands the concept of fixing to include extending.
For the purpose of s 54(1)(b) a non-parole period is fixed both when sentencing a defendant who is not then serving a non-parole period, and when extending the non-parole period being served by a defendant who is sentenced for other offending. Section 47(1)(b) uses the terminology of extending a non-parole period as a useful drafting device for the purpose of limiting the length of the period of extension by reference to the length of the subsequent sentence. The extended non-parole period is nonetheless a non-parole period ‘fixed’ for the totality of the sentences of imprisonment. It is so treated by ss 66 and 67 of the Correctional Services Act 1982 (SA) which allows for release after the expiry of the non-parole period ‘which has been fixed’, making no mention of an ‘extended’ non-parole period. It cannot be the case that a defendant serving an extended non-parole period is not entitled to release on parole pursuant to those sections. Moreover, to treat the fixing of a non-parole period as a different order to the extending of a non-parole period would be self-defeating because s 54(1)b) would have no application at all to an extended non-parole period. The sentence to which s 54(1)(b) of the Sentencing Act 2017 refers is the sentence, or contemporaneously imposed sentences, which enliven the obligation to fix (including to extend) a non-parole period.
Does the four-fifths rule apply to the length of the sentence imposed or the effective sentence?
The respondent’s sentence of four years and 19 days was backdated to 20 December 2017 by making it partially concurrent with the earlier sentence. The effective sentence was therefore one year, two months and two days. The Director asserts that the sentencing Judge erred in applying the four-fifths rule to the period of one year, two months and two days rather than the whole of the new sentence of four years and 19 days. The sentencing Judge said, “I regard the sentence imposed for that purpose as being the length of the increase in the sentence to be served”. It is difficult to find support for that approach in the relevant provisions. “Sentence” is defined in the Act as:
sentence means—
(a)the imposition of a penalty; or
(b)the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)the fixing, extending or negating of a non-parole period; or
(d)the making of any other order or direction affecting penalty, including the decision of a court to discharge a defendant—
(i) without imposing a penalty; or
(ii) without recording a conviction;
Clearly, in the context of s 54(1)(b), both occurrences of the word ‘sentence’ only make grammatical and contextual sense if each is taken to mean the imposition of a penalty. The penalty imposed in this instance was four years and 19 days. The respondent does not resist this conclusion.

The error that the Director alleged is made out. The sentencing Judge was required to find that the non-parole period for the sentence imposed was three years, two months and 28 days.
How the four-fifths rule operates where concurrency is employed
However, it remains to be considered how the four-fifths rule operates where partial concurrency is employed. Section 47 of the Sentencing Act 2017 required the earlier non-parole period to be reviewed and extended. The non-parole period, once extended, must therefore not be less than four-fifths of the sentence the imposition of which invokes s 47 of the Sentencing Act 2017. That sentence is the sentence of four years and 19 days. Whether it is imposed concurrently or cumulatively, we acknowledge that it follows that in the sentencing of a serious repeat offender who is subject to an existing non-parole period, the four-fifths requirement will be easily satisfied. The consequence is that a sentencing judge will retain a wider discretion when extending a non-parole period than when fixing one for a serious repeat offender who is not then subject to an existing non-parole period.
It may well be that Parliament thought s 54(1)(b) would operate differently and that an existing non-parole period would be extended by four-fifths of the subsequently imposed sentence or by four-fifths of the effective increase in the total period of imprisonment. It may be that Parliament did not turn its mind to the problem at all. The failure to expressly deal or even mention extensions suggests the latter. Be that as it may, the text itself does not support any construction other than the one we would adopt. This is not a case in which the ambiguity can be removed by contracting the breadth of the meaning of the words of the section. To reach a different outcome would require the Court to read text into the section. There is insufficient justification to do so and to thereby limit the discretion of sentencing courts. Sentencing courts will of course exercise their discretion having regard to Parliament’s concern that the community be protected from serious repeat offenders.
Grant of permission
The application and the cross-appeal have raised important questions of interpretation. The Director has established manifest inadequacy in the effective sentence and a process error in the calculation of the non-parole period.
In R v Irvine[28] Stanley J said,
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing Judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. (footnotes omitted)
[28] [2016] SASCFC 104 per Stanley J.
We would grant the Director’s application for permission based on manifest inadequacy of the sentence, and we would also grant permission in respect of the process error in the original sentence. We would grant permission to the respondent on his three grounds of cross-appeal as each raises a matter of public importance, being the proper interpretation of the Sentencing Act 2017, however he succeeds in none of them. The respondent having been granted permission, the Director does not require permission in accordance with s 157(2) of the Criminal Procedure Act 1921. It is appropriate to re-sentence.
Resentence
As it transpires, on the construction of s 54(1)(b) of the Sentencing Act 2017 set out above, the non-parole period fixed by the Judge complied with it. However, the Judge’s error was in imposing a manifestly inadequate sentence by reason of the degree of concurrency his Honour allowed.
The total head sentence that the appellant should serve is seven years 11 months, being the two sentences aggregated without concurrency. We would extend the non-parole period to five years 10 months. That non-parole period is a little less than four-fifths of the total of the two terms of imprisonment but it exceeds four-fifths of the sentence imposed for the subject offences.