R v Curry
[2016] SASCFC 16
•3 March 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CURRY
[2016] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
3 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND UNLAWFUL DETENTION
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - INTERFERENCE WITH WITNESSES OR JURORS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERJURY AND FALSE STATEMENT - FALSITY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
Appeal against sentence. The appellant pleaded guilty to a number of offences and was sentenced by a Judge of the District Court on counts including failure to secure ammunition, possess prescription drug without prescription, multiple breaches of bail, unlawful possession, aggravated robbery, false imprisonment, attempt to dissuade witness from attending judicial proceedings, induce person to make a false statement under oath and multiple breaches of bond.
The Judge imposed a total head sentence of 13 years and three months, and a non-parole period of eight years.
The appellant appealed on the grounds that the head sentence and non-parole period was manifestly excessive, and that the Judge failed to give consideration to the principle of totality.
Held per Kourakis CJ, dismissing the appeal
1. The starting point was not excessive (at [4]).
2. The sentence imposed by the Judge was wholly concurrent with the relatively low sentence for the unlawful imprisonment (at [4]).
Held per Stanley J (Nicholson J agreeing), dismissing the appeal:
1. The starting point was not manifestly excessive (at [33]).
2. The non-parole period should not be reduced in order to maintain the ratio between the non-parole period and the head sentence (at [35]).
3. It was not established that the Judge failed to take into account the principle of totality (at [46] - [49]).
Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, referred to.
R v Place (2002) 81 SASR 395; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 221; The Queen v Morse (1979) 23 SASR 98; R v Shannon (1979) 21 SASR 442; R v Jackson [2014] SASCFC 118; R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 48; Bugmy v The Queen (1990) 169 CLR 525; R v Moyle (1996) 186 LSJS 462; Postiglione v R (1997) 189 CLR 295; R v Copeland (No. 2) (2010) 108 SASR 398; R v B, RWK (2005) 91 SASR 200; Mill v The Queen (1988) 166 CLR 59, considered.
R v CURRY
[2016] SASCFC 16Court of Criminal Appeal: Kourakis CJ, Stanley and Nicholson JJ
KOURAKIS CJ: I gratefully adopt the record of the sentence imposed and the summary of the sentencing circumstances set out in the judgment of Stanley J. I too would dismiss the appeal.
Robberies of the kind to which the range in R v Place[1] applies usually involve no more than the threat of violence using a weapon. However, armed robberies of business premises carry a serious risk of harm to members of the public and traumatise numerous employees and customers. The applicable range is calculated to effectively deter offences which were once more prevalent than they are today.
[1] (2002) 81 SASR 395.
Sentences imposed for robberies of individuals have historically fallen below the range identified in R v Place. There are several reasons why that is so. Robberies of individuals are often opportunistic. They generally do not put as many people at risk. Nonetheless some robberies of individuals do warrant a sentence within, or higher than, the range applicable to armed robberies of businesses. In this case the appellant inflicted significant harm on the victim. Additionally, the use of the gun to threaten the victim substantially added to his terrifying ordeal.
In those circumstances, the starting point of eight years was not excessive. Moreover, the sentence imposed by the Judge was wholly concurrent with the relatively low sentence imposed for the unlawful imprisonment. For that reason the effective head sentence of eight years, after the reduction for the appellant’s guilty plea, must be reviewed on the basis that it applies to the overall criminality encompassed by both offences.
I would dismiss the other grounds of appeal for the reasons given by Stanley J. I only add that the very substantial sentence which the appellant must now serve is the product of persistent serious offending arising out of his attachment to the violently criminal ways of outlaw motor cycle gangs. Both general and personal deterrence leave little scope to give effect to his late expressions of regret. The non-parole period is in that context relatively favourable.
STANLEY J:
Introduction
This is an appeal against sentence. The appellant pleaded guilty to a number of offences and was sentenced by a Judge of the District Court as set out below. A suspended sentence and a good behaviour bond was also revoked. The judge imposed a total head sentence of 13 years and three months. The judge imposed a non-parole period of eight years. The appellant complains that the head sentence and non-parole period are manifestly excessive. He complains only of the component of the sentence which was imposed for the offence of aggravated robbery. He submits that the appeal should be allowed and the court should resentence for all offending and fix a new non-parole period. In the alternative, the appellant submits that the sentencing judge failed to have regard to the principle of totality in relation to the head sentence of 13 years and three months. He contends this error requires the court’s intervention to reduce the total head sentence by the imposition of an appropriate sentence which is fair and reasonable in all the circumstances.
The relevant offending and sentences were as follows:
Offence
Sentence
Failure to secure ammunition
No sentence
Possess prescription drug without prescription
Two months (30% discount applied) concurrent with the revoked suspended sentence.
Breach of bail (not residing at bail address)
Breach of bail (by residing at an address not permitted)
Breach of bail (by being in possession of 2 rounds of ammunition)
Unlawful possession
Aggravated robbery
Eight years (20% discount applied)
False Imprisonment
16 months (20% discount applied) concurrent with the eight year sentence
Breach of bail (by being in possession of a firearm)
Not mentioned
Attempt to dissuade witness from attending judicial proceedings
24 months (30% discount applied) cumulative upon the eight year sentence
Induce person to make a false statement under oath
12 months (30% discount applied) cumulative upon the eight year and 24 month sentences
Breach of bond
Suspended sentence revoked: two years and three months to be served cumulative upon the eight year, 24 month and 12 month sentences
Breach of bond (damage property)
One month concurrent with the revoked suspended sentence of two years and three months
The Offending
The appellant was apparently involved in a drug deal with the victim, who incurred a debt to the appellant through that sale. The appellant and the victim reached an agreement that the victim repay the money owed on 1 April 2014. On 31 March 2014 the appellant attended the victim’s home to demand the money owed to him. There the appellant threatened to shoot the victim in the leg. The appellant left the victim’s home without any further threats of violence.
He returned the next day with a .22 mm handgun. The victim paid the appellant the money he owed. The appellant then entered the property making the same threat to shoot the victim that he had the day previous. Another man, not known to the victim, also entered the premises and along with the appellant punched and kicked the victim. The appellant was holding the handgun at this time. He then passed the handgun to the other man and picked up an aluminium baseball bat, he proceeded to beat the victim in the legs and the back.
The appellant demanded the mobile phone and car keys of the victim. He was given the car keys and he took the victim’s mobile phone and the car registration papers from the car. Following this the appellant pointed the gun at the victim and demanded he sign the car over to him. The victim acquiesced.
The victim was ordered into the boot of the car and driven around for approximately ten minutes. The victim was again assaulted. The appellant threatened to harm the victim’s family if he reported the events to the police.
After 1 April 2014 the appellant enlisted the aid of others to dissuade the victim from giving evidence. There are a number of phone calls which document the actions of the appellant in relation to this. The sentencing Judge considered that as a result of this the victim feared for his safety but gave evidence nonetheless.
In addition, the appellant induced his partner to make a false statement under oath. For the purposes of attempting to obtain bail, the appellant persuaded his partner to knowingly swear a false affidavit claiming that she was pregnant with their child.
Through conversations recorded on the prison telephone the appellant encouraged his partner, Ms Batters, to approach his solicitors to prepare an affidavit stating that the appellant and Ms Batters were expecting a child. Ms Batters swore that affidavit on 28 May 2014 in which she claimed to be 11 weeks pregnant. She knew, at the time, that she was not pregnant.
Personal circumstances of the appellant
The appellant is 24 years of age. He had a difficult and troubled upbringing. His parents separated when he was very young and he was shuttled between households. He suffered severe beatings from his father and his mother’s de facto. From his early adolescence he commenced using drugs, including cannabis and ecstasy. He became involved in street gang activity. At 17 this progressed to membership of an outlaw motorcycle gang. He progressed from street crimes to more serious offending related to his drug use. Much of his offending occurred which he was intoxicated with drugs and alcohol. By 17 he was addicted to amphetamines. His schooling finished at the age of 14. He completed a one-month long prevocational course at TAFE. He was offered an apprenticeship. He commenced a full-time boilermaker and welder’s apprenticeship at the age of 15. After a year he was dismissed because his work performance and attendance had deteriorated as a result of his drug and alcohol use. He then obtained employment as a process worker for four of five years and more recently has worked as an order picker in a warehouse for over three years.
The appellant has been in a de facto relationship with his current partner for four years. They have a daughter who is two years old. His partner remains supportive. The appellant has ambitions to become a structural engineer.
Notwithstanding his extensive criminal antecedents, he has not previously served any term of imprisonment.
He has been diagnosed in the past as suffering from post-traumatic stress disorder as a result of discovering two dead bodies at the ages of 13 and 16. He has suffered from depression since he was taken into custody.
The appellant has now reconciled with his father. His father has now been diagnosed with terminal bone cancer. He has a prognosis of only a couple of years’ life remaining. The appellant is distressed by the prospect of his father’s death.
Since being taken into custody the appellant has repeatedly expressed his remorse and contrition and desire to cease involvement with outlaw motorcycle gangs and to desist from further criminal activity. He expresses a wish to be a good husband and father and to provide for his family.
In a report Mr Richard Balfour, a psychologist, observes that the appellant has a history of entrenched drug and alcohol abuse problems and a long-terms history of affiliation with an outlaw motorcycle gang. Nonetheless he believes that he is motivated to rehabilitate himself by participating in psychological and psychiatric treatment for his mental health problems. He considers the appellant is no longer in denial regarding his drug and alcohol abuse problems and has developed insight into the importance of avoiding contact with criminal elements if he is to have any chance of remaining drug and offence free. Mr Balfour considers that the family relationship and his good work history are positive features which give some hope for his rehabilitation. Mr Balfour considers the type of psychosocial problems which have contributed to his offending behaviour would respond well to strict community supervision and assertive case management.
The judge’s sentencing remarks
The judge considered that the aggravated robbery was a very serious offence of its type. He considered it was towards the upper end for offences like it. He characterised it as legally and factually aggravated because it was committed by the appellant in conjunction with another man and was committed using both a gun and a baseball bat. The judge also considered the two offences relating to the administration of justice were very serious.
The judge referred to the victim impact statement. He noted that the appellant’s offending resulted in physical injuries to the victim, ongoing psychological trauma, the loss of his job and independence. The victim was forced to move interstate for fear of reprisals, leaving his wife and child in South Australia.
The judge said:[2]
[2] Sentencing remarks of Judge Rice delivered 19 June 2015.
You, Mr Curry, are now aged 24 years. I have had regard to the submissions made on your behalf and have taken into account Mr Balfour’s long and helpful psychological report dated 16 March 2014.
Despite the obvious seriousness of your offending, both individually and overall, your counsel rightly addressed me on the positive aspects of your situation. He emphasised your age and reasonably stable relationship with Ms Batters. Your personal situation is not unlike many of those that come before this court. You had a dysfunctional upbringing, your parents separated when you were young and you moved between households. Despite significant difficulties in your early years, you now enjoy a good relationship with your father. Your father’s health is a matter to which I will return shortly.
You were introduced to alcohol and drugs at an early age. You developed an addiction to methylamphetamine. You have found out the hard way that, as you told Mr Balfour, your association with an outlaw motorcycle gang has, to quote your words ‘Just ruined my life’. You tried to break that association, but it appears that you had not managed to do so as at the time of these offences. Your drug addiction became worse once you associated with the outlaw motorcycle gang.
This offending arose when you were pressured to repay a debt and you, in turn, robbed the victim in the way I described, even though he paid you the agreed amount.
I also note from the submissions that your use and addiction to methylamphetamine became worse when you learned that your father was suffering from a terminal illness. He continues to suffer from that illness but, as I say, you now enjoy a good relationship with him.
You have had a reasonably consistent work record and were working at the time of the offending. Your family clearly remains supportive of you.
One of your letters expresses your regret and apologises to the victim. In your letter to me, you also express your contrition and say that prison has changed you for the better, and you have hopes for the future upon your release.
I have also taken into account the letter from your parents, family and friends, including from Ms Wright from the Salvation Army. You have used your time in prison well to improve your education.
Mr Balfour says he believes that without the assistance of a supervised, structured rehabilitation program, your prognosis to cease offending in the short-term is poor. He refers to factors in your favour when considering your general prognosis to cease offending. In the light of those factors, he then goes on to make certain recommendations.
Principles on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[3] where Doyle CJ said:[4]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[3] [2009] SASC 346, (2009) 266 LSJS 283.
[4] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
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[5] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[6] 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.
[5] [1936] HCA 40, (1936) 55 CLR 499.
[6] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Manifestly excessive?
In The Queen v Morse[7] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[8]
[7] (1979) 23 SASR 98.
[8] (1979) 23 SASR 98 at 99.
The relevant maxima for the offences for which the appellant fell to be sentenced were:
·Failure to secure ammunition (DCCRM-14-2002): $2,500
·Possess prescription drug without prescription (DCCRM-14-2002): $10,000 or imprisonment for 2 years
·Breach bail (DCCRM-14-2002): $2,500 or imprisonment for 6 months
·Breach bail (DCCRM-14-2002): $2,500 or imprisonment for 6 months
·Breach bail (DCCRM-14-2002): $2,500 or imprisonment for 6 months
·Unlawful possession (DCCRM-14-2003): $10,000 or imprisonment for 2 years
·Aggravated robbery (DCCRM-14-1453): life imprisonment
·False imprisonment (DCCRM-14-1453): common law
·Breach of bail (DCCRM-15-519): $10 000 or imprisonment for 2 years
·Attempt to dissuade a witness from attending judicial proceedings (DCCRM-14-2653): 10 years imprisonment
·Induce a person to make false statement under oath (DCCRM-14-2653): 7 years imprisonment
·Breach bond (DCCRM-14-1106): 2 years and 3 months imprisonment with a non-parole period of 15 months
In R v Place[9] this Court considered sentencing standards for armed robberies. In a passage frequently cited the Court said:[10]
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. In our view, the sentencing judge was doing no more than having regard to the standard of penalty that has been identified by the Court of Criminal Appeal as applicable to the circumstances before him. However, it is clear that his Honour did not apply the standard as if it was a fixed tariff. If he had done so, his starting point would have been 36 years or more. It appears that his Honour used a figure of approximately five years for each of the armed robberies in determining his starting point.
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
[9] [2002] SASC 101, (2002) 81 SASR 395.
[10] [2002] SASC 101 at [100] – [101], (2002) 81 SASR 395 at 429.
The appellant submits that in considering whether the sentence imposed for aggravated robbery was manifestly excessive, it is necessary for the court to consider the notional head sentence of 10 years used by the sentencing judge before the discount was applied pursuant to s 10C for the guilty plea. I accept this submission. The statutory framework enshrined in the enactment of s 10B and s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) requires that a court, in considering an appeal against sentence on the ground of manifest excess or inadequacy must disregard the impact of the application of those sections. To do otherwise would result in a misleading inquiry directed to a sentence which has been distorted by the reduction resulting from the operation of the statutory discount. The position under s 10B and s 10C differs from the position which existed prior to their enactment, when the question of whether, and to what extent, a sentencing judge would discount a sentence for a plea of guilty, was very much a matter of the exercise of the sentencing judge’s discretion.[11] The enactment of s 10B and s 10C has significantly circumscribed that discretion.
[11] R v Shannon (1979) 21 SASR 442 at 452 – 453.
The appellant further submits that the starting point of 10 years used by the judge impermissibly resulted in the imposition of a sentence above the Place tariff.
I do not accept this submission.
The standard penalty of six to eight years imprisonment referred to in Place is to apply to the typical armed robbery on premises such as banks, shops and service stations where weapons or objects that appear to be weapons are used to threaten the immediate victim. This was a case where weapons were not only used to threaten the victim of the robbery, but a baseball was used in a violent and vicious assault upon him. In addition, the offence was committed while the appellant was on bail and serving a suspended sentence. In my view this takes this case outside the range of typical or usual armed robberies that the court in Place had in contemplation in setting the tariff of six to eight years imprisonment. While the starting point of 10 years in this case is at the high end, as the judge acknowledged, I do not consider it manifestly excessive. Given the need for both personal and general deterrence, I consider 10 years imprisonment is within the available range for this offending. In this context I also note that the appellant sought to place some reliance on the remarks in R v Jackson[12] of the Chief Justice that in sentencing for serious offences a sentencing court is entitled to have regard to an offender’s youth, deprived upbringing and the relatively short periods of detention and imprisonment previously served, such that while an offender’s history of prior offending may be very bad, it does not preclude all hope for rehabilitation, allowing an incremental approach to be taken to the length of the term of imprisonment to be imposed.[13] Those observations were obviously made in the context of a particular appellant. To the extent that they can be considered to apply more broadly as a statement of principle, the observation is always qualified by the requirement that a court must impose a sentence that fits the crime. Some offending will be so serious as to preclude the taking of a more incremental approach to the imposition of a term of imprisonment. As the Chief Justice noted in Jackson, depending on the circumstances, a higher or lower sentence than that enunciated in Place may be required.[14] This is a case where the circumstances of the offending warranted a higher sentence than the usual tariff provided for in Place.
[12] [2014] SASCFC 118.
[13] [2014] SASCFC 118 at [16].
[14] [2014] SASCFC 118 at [13] – [14].
The appellant submits that the non-parole period of eight years, which represents about 60 per cent of the head sentence, is manifestly excessive. In the alternative, he submits that if the court accepts that the sentence imposed for the aggravated robbery offence is manifestly excessive, the court should reduce the non-parole period to maintain the ratio of the non-parole period to the head sentence of 60 per cent.
It is convenient first to address the latter submission. As I do not consider the notional sentence imposed for the offence of aggravated robbery is manifestly excessive, I reject the submission that the non-parole period must be reduced in order to maintain the ratio between the non-parole period and the head sentence.
I also would reject the former submission. The appellant submits that the non-parole period of eight years was manifestly excessive having regard to his personal circumstances.
In principle a non-parole period should, like a head sentence, operate as a deterrent and be properly proportionate to the gravity of the crime. In R v Creed King CJ said:[15]
... in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent. It is necessary, moreover, that the courts in fixing non-parole periods, no less than in fixing the head sentence, should make it clear that if there is repetition of crime, there will be no question of the punishment for the subsequent crimes being absorbed in that which is imposed for the earlier crimes, but that on the contrary the offender will have imposed upon him salutary punishment for the subsequent crimes also. The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
...
[The] Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.
[15] (1985) 37 SASR 566 at 568-569.
The fixing of a non-parole period however, serves a different function from the setting of a head sentence. In R v Miller[16] Doyle CJ observed that in accordance with what was said by the High Court in R v Shrestha,[17] in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence[18] and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.[19]
[16] [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
[17] [1991] HCA 26, (1991) 173 CLR 48 at 68-69.
[18] Bugmy v The Queen [1990] HCA 18, (1990) 169 CLR 525 at 531; R v Moyle (1996) 186 LSJS 462 at 465.
[19] R v Miller [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
The appellant is a relatively young man of 24 years. He has been in a reasonably stable relationship with his partner for some years. He had a harsh and dysfunctional upbringing. It involved alcohol, drugs and a violent father. Nonetheless he had a reasonably consistent work record and a supportive family. He has reconciled with his father who now suffers a terminal illness. These are matters which weigh in his favour. Yet this was serious offending. While greater weight is to be given to rehabilitation in fixing a non-parole period than would be the case in fixing a head sentence, the non-parole period must reflect the punitive, the deterrent and the preventive purposes of punishment. Recognising these principles, I do not consider a non-parole period representing about 60 per cent of the head sentence is outside the range of non-parole periods which could reasonably be imposed for this offending properly weighing the personal circumstances of the appellant.
For these reasons I would dismiss this ground of appeal.
Totality
The appellant submits that the judge erred in failing to take into account the principle of totality by stepping back and considering the aggregate term to be imposed by way of the totality of each sentence imposed, asking whether the total sentence should be considered crushing.
The principle of totality was explained in Postiglione v R[20] where McHugh J said:[21]
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.
[20] [1997] HCA 26, (1997) 189 CLR 295.
[21] [1997] HCA 26, (1997) 189 CLR 295 at 307.
McHugh J continued:[22]
When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.
[22] [1997] HCA 26, (1997) 189 CLR 295 at 308.
In R v Copeland (No. 2)[23] Kourakis J (as he then was) said:[24]
[T]here 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.)
[23] [2010] SASCFC 31, (2010) 108 SASR 398.
[24] [2010] SASCFC 31 at [103], (2010) 108 SASR 398 at 425.
However, the occasion for the application of the totality principle is relatively infrequent. As Doyle CJ said in R v B, RWK:[25]
In the course of submissions counsel for the appellant invoked the totality principle. There is no substance at all in that submission. The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
[25] [2005] SASC 84 at [16], (2005) 91 SASR 200 at 203.
It is true that the judge did not expressly state that he stood back and took a last look at the total sentence arrived at to see whether it was just and appropriate. However, the judge plainly had regard to the appellant’s relative youth and his personal circumstances and imposed a sentence of imprisonment for the offence of false imprisonment which was made wholly concurrent with the sentence imposed for the offence of aggravated robbery, which is the very outcome the application of the totality principle would have.
In Mill v The Queen[26] the High Court explained the totality principle by reference to a passage in Thomas, Principles of Sentencing:[27]
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'.
[26] (1988) 166 CLR 59 at 62 – 63.
[27] 2nd ed, 1979 pp 56 – 57.
The High Court went on to observe that if was reduction in the sentence was to be made on account of the totality principle, it could be achieved either by ordering that part of the sentence be served concurrently, or by lowering the length of the sentence as going to make up the total head sentence, the court expressed a preference for the former method[28] and that preference was reinforced in Johnson v The Queen.[29]
[28] (1988) 166 CLR 59 at 63.
[29] (2004) 78 ALJR 616.
In my view, there is no error demonstrated in the approach taken by the sentencing judge. I would dismiss this ground of the appeal.
Conclusion
I would dismiss the appeal.
NICHOLSON J. I agree the appeal should be dismissed for the reasons given by Stanley J. I agree with the additional observations of the Chief Justice.
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