R v Dwyer - [2015] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DWYER
[2015] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
16 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Appeal against sentence.
The appellant pleaded guilty at committal to four counts of aggravated robbery. Two counts were committed on 13 February 2014 and two counts were committed on 15 February 2014. At the time of the offending the appellant was on parole for earlier offences of aggravated robbery, serious criminal trespass and theft. The appellant was sentenced to a single term of imprisonment in respect of all offending. After a reduction of 25 per cent in respect of the guilty pleas, the sentencing judge fixed a sentence of 13 years and six months imprisonment. To this was added the unexpired balance of the sentence for which the appellant was on parole of three years, six months and nine days. This resulted in a head sentence of 17 years and nine days. A non-parole period of nine years was fixed.
Whether the head sentence and non-parole period imposed were manifestly excessive. Whether the Judge erred in failing to give adequate reasons for selecting a reduction of 25 per cent for the pleas of guilty.
Held per Stanley J (Kourakis CJ and Gray J agreeing) allowing the appeal:
1. No error demonstrated in the commencement point adopted by the Judge in sentencing the appellant (at [23]).
2. The Judge fell into error in the approach taken to fixing the discount for the pleas of guilty. The Judge erred in failing to afford the appellant the entire discount permitted by s10C(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA). The Judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum discount available (at [34]).
3. There was scope in this case for the Judge to adopt an approach of partial concurrence in sentencing the appellant on counts 1 and 2 (at [44]).
4. Appeal allowed. Appellant resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10C; Criminal Law Consolidation Act 1935 (SA) s 137, referred to.
Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; R v Place (2002) 81 SASR 395; R v Khim [2002] SASC 343; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103; R v Dorning (1981) 27 SASR 481; DPP v Fermaner (1994) 61 SASR 447; R v Drumgoon (Unreported, Court of Criminal Appeal of South Australia, delivered 13 December 1995); Mead v Police (2014) 119 SASR 223; R v McPhee [2014] SASCFC 107; R v Rossi (1988) 142 LSJS 451; R v Anderson [2008] SASC 106; R v B, RWK (2005) 91 SASR 200 ; R v E, AD (2005) 93 SASR 20; Postiglioni v R (1997) 189 CLR 295; R v Copeland (No. 2) (2010) 108 SASR 398; Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v Knowles (1987) 45 SASR 14; R v Wakefield [2015] SASCFC 10, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "totality", "discount for guilty pleas"

R v DWYER
[2015] SASCFC 12
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Stanley J. I would set aside the sentence ordered in the District Court and impose instead the sentences proposed by Stanley J.
GRAY J. I allow the appeal and set aside the sentence imposed in the District Court. I would sentence the defendant in the terms as proposed by Stanley J. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty at committal to four counts of aggravated robbery. Two counts were committed on 13 February 2014 and two counts were committed on 15 February 2014.
At the time of the offending the appellant was on parole for earlier offences of aggravated robbery, serious criminal trespass and theft after being released from custody on 28 January 2014.
The learned sentencing judge utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) and imposed a single term of imprisonment in respect of all offending. After a reduction of 25 per cent in respect of the guilty pleas, the sentencing judge fixed a sentence of 13 years and six months. To this was added the unexpired balance of the sentence for which the appellant was on parole of three years, six months and nine days. This resulted in a head sentence of 17 years and nine days. The learned sentencing judge fixed a non-parole period of nine years.
There are two grounds of the appeal as amended. First, that both the head sentence and the non-parole period are manifestly excessive having regard to the principle of totality, the appellant’s remorse and contrition, his personal circumstances and prospects of rehabilitation, and the circumstances leading to his offending as a result of his release on parole without proper medical provision. Secondly, that the learned sentencing judge erred in failing to give adequate reasons for selecting a reduction of 25 per cent for the pleas of guilty.
Circumstances of the offending
On the night of 13 February 2014 the appellant, in company with another, entered a pizza bar. Each was wearing a balaclava. One of them had a knife. They stole about $100 from the proprietor. Approximately one hour later the appellant, in company with another, robbed a shop. They stole about $1,500 and threatened the shop assistant that they would come back and get her if she called the police. The circumstances of aggravation of the first robbery were that the robbery was committed in company and with a knife. The circumstance of aggravation of the second robbery was that it was performed in company.
On 15 February 2014 the appellant robbed a hairdressing salon. He was wearing a hoodie and was armed with a machete. He menaced the hairdresser and stole the till. In addition he menaced a customer and stole her handbag. The till contained about $230 and the handbag contained personal effects, including the owner’s mobile telephone. The bag and its contents were valued at over $1,000. The theft of the till and the handbag were charged as separate counts. Both were aggravated because of the use of the machete.
Circumstances of the appellant
At the time of these offences the appellant was 27 years of age. He has had a troubled and difficult upbringing. He has abused drugs since the age of 14 when he dropped out of school. He is a heroin addict. He has been diagnosed as suffering from an anti-social personality disorder and an opioid use disorder. He also suffers from depression. He has an extensive criminal record which reflects his antisocial personality disorder, his use of illegal drugs and his need to fund that drug habit. In 2009 he was sentenced to five years and four months imprisonment with a non-parole period of four years upon conviction for offences of committing theft using force, serious criminal trespass and dishonestly taking property without consent.
He had been paroled for just over a fortnight when these offences were committed. His motivation was to finance the purchase of heroin.
While the appellant was in prison he was prescribed suboxone in order to control his craving for drugs. When paroled on 28 January 2014 he was provided with a three-day prescription for suboxone. The prescription expired. The appellant claimed that he did his best to obtain a fresh prescription but was unable to do so. He underwent withdrawal and relapsed into using heroin.
The appellant complained that the prison health service failed to arrange a doctor’s appointment prior to his release to enable him to be assessed and obtain an ongoing prescription for suboxone. It is apparent, however, that he took no steps to seek the assistance of his parole officer to rectify this problem.
Subsequent to his arrest for this offending, the appellant was assessed by a forensic psychologist, Mr Allen Fugler. He considers that given the appellant’s personality disorder and history of substance abuse and criminal offending, he would not expect there to be a significant improvement in the appellant’s prognosis for around a decade. Individuals with a personality disorder generally decrease the level and rate of offending in the fourth decade of their lives. On the other hand, Mr Fugler considered there was some prospect that positive change might be accelerated if the appellant were to be involved in a drug treatment program of a duration of at least 12 months, together with cognitive skills training and stress management with an experienced psychologist in the context of ongoing supervision.
The sentencing judge’s approach
The learned sentencing judge canvassed the appellant’s personal circumstances and the circumstances of the offending. He noted that the appellant had written a letter to the court accepting responsibility for his actions and acknowledging that being unable to access suboxone did not excuse his crimes. He referred to his contrition and insight into his addictions and the appellant’s completion of the Making Changes program while in prison. He noted his wish to escape drugs and find meaningful employment upon release. He noted that when he was drug-free he appeared to be sensible and industrious but his behaviour spiralled out of control when in the grip of drugs. The learned sentencing judge said:
You have suffered from depression and you are currently on medication which seems to be alleviating your symptoms. You are assessed as likely to be in the borderline low average range of intellectual functioning. You have maladaptive coping strategies which do not help you in difficult situations and you do not address your issues in the way that you should. Your current crimes seem to be examples of this. You would plainly benefit from psychological treatment.
However, the sentencing process is not all about you.
Your crimes were plainly very serious. Two of your victims continue to suffer psychological after effects as a result of what you did and your conduct has had physical ramifications for one of your victims.
Moreover, you have an appalling criminal record stretching back for many years. You have committed many serious offences and you are a serious repeat offender in the eyes of the law. You served periods of detention when you were a youth. You have been put on bonds. You have breached some of those bonds and you have served sentences of imprisonment, but nothing seems to have deterred you. Disturbingly, you have a previous conviction for aggravated robbery.
You have had your parole cancelled twice in the past and your response to supervision is said to have been poor.
The deterrence of others must ordinarily be the predominant consideration in fixing sentences for crimes such as yours. You are also plainly in need of a measure of personal deterrence and your prospects of rehabilitation are guarded.
Despite the fact that you are a serious repeat offender, I nonetheless think that the public can be properly protected if I proceed to sentence you in the usual way and indeed the prosecution do not submit otherwise.
You pleaded guilty in a timely fashion and you will be given appropriate credit for your pleas. You were facing a very strong prosecution case in relation to your crimes at the hairdressers and there is an air of bowing to the inevitable in relation to those pleas. Your pleas to the other two charges carry greater weight.
In fixing sentence the learned sentencing judge noted that the appellant’s crimes were closely connected in time and on that basis he imposed one sentence to cover all four counts. In imposing sentence the judge commenced with a starting point of 18 years which he reduced to 13 years and six months to reflect the guilty pleas. The judge arrived at this reduction by what he described as a process of “instinctive synthesis”. As I have noted, the judge made that sentence cumulative upon the unexpired balance of the previous sentence, making a total of 17 years and nine days. He fixed a non-parole period of nine years so as to provide adequate punishment and deterrence. The sentencing judge indicated that the non-parole period was a little less that it would have been but for the appellant’s insight and intentions.
The approach on appeal
The circumstances in which an appellate court may interfere with a sentence are well known. In Markarian v The Queen[1] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[2]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[Citations omitted].
[1] [2005] HCA 25, (2005) 228 CLR 357.
[2] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370 – 371.
This approach was further explained in Dinsdale v The Queen[3] by Kirby J, who said:[4]
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
[Citations omitted].
[3] [2000] HCA 54, (2000) 202 CLR 321.
[4] [2000] HCA 54 at [59], (2000) 202 CLR 321 at 340.
Consideration
In R v Place[5] the Court of Criminal Appeal underlined that armed robberies of, inter alia, shops where weapons or objects that appear to be weapons are used to threaten victims are prevalent crimes committed against vulnerable persons. Such crimes are frequently committed by persons addicted to and affected by alcohol or other drugs, who commit these offences in order to obtain funds to satisfy their addictions. The Court said that in fixing sentences for such crimes, considerations of general deterrence and the protection of the public are of particular importance. The Court considered that the standard penalty appropriate for these types of armed robberies, committed by these types of offenders, is in the order of six to eight years of imprisonment.[6] The Court said further:[7]
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.
[5] [2002] SASC 101, (2002) 81 SASR 395.
[6] [2002] SASC 101 at [100], (2002) 81 SASR 395 at 429.
[7] [2002] SASC 101 at [101], (2002) 81 SASR 395 at 429.
The approach in Place has been subsequently reaffirmed by the Court of Criminal Appeal.[8] Moreover, the approach in Place echoed a long line of authority to the same effect.[9]
[8] R v Khim [2002] SASC 343, R v Randall-Smith and Davi [2008] SASC 99, (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103.
[9] R v Dorning (1981) 27 SASR 481 at 481 - 484; DPP v Fermaner (1994) 61 SASR 447; R v Drumgoon (Unreported, Court of Criminal Appeal of South Australia, delivered 13 December 1995).
While the standard in Place is not to be applied inflexibly, there is nothing in the circumstances of this case that warranted any significant departure from the sentencing standards. In my view, this was serious offending. The use of a knife in count 1 and the use of a machete in counts 3 and 4 must have been terrifying for the victims. The fact the appellant was on parole for previous offending of a similar character is relevant. He had been on parole for only a little more than two weeks. This early relapse into serious offending warranted the imposition of a significant term of imprisonment for reasons of both specific and general deterrence. The need for specific deterrence is further emphasised by what the sentencing judge accurately described as the appellant’s appalling criminal record stretching back many years. The court is obliged to impose penalties that afford some protection to the community from addicts who are prepared to threaten serious injury to vulnerable victims to obtain money or other property for the purposes of funding their drug habit. The learned sentencing judge did not identify separate notional sentences for each offence in adopting a commencement point of 18 years of imprisonment. Utilising the bottom of the Place standard range, it would appear that the sentencing judge may have treated the offending in counts 3 and 4 on 15 February 2014 as being so closely related to each other as to fix a notional starting point by making the sentence for each of count 3 and 4 wholly concurrent so as to arrive at the overall starting point of 18 years for each of the four offences. Such an approach was open and can be considered merciful.
As the appellant’s counsel acknowledged, the learned sentencing judge had regard to pertinent matters concerning the appellant’s personal circumstances. The appellant’s complaint in relation to the failure of the correctional services authorities to ensure he had an adequate supply of suboxone as a factor in mitigation I consider to be misconceived. The appellant had other options available to address his need for medication, including contacting his parole officer, without recourse to crime.
Assuming the judge sentenced the appellant on the basis that he notionally treated the sentences for counts 3 and 4 as wholly concurrent, the head sentence was fixed at the low end of the Place range. In the circumstances I do not consider that there has been any error demonstrated in the commencement point adopted by the learned sentencing judge. However, in my view, the sentencing judge fell into error in the approach taken to fixing the discount for the pleas of guilty.
The appellant fell to be sentenced in accordance with the provisions of s 10C of the Sentencing Act.

The appellant was arrested on 15 February 2014. He appeared for the first time in court in relation to this offending on 17 February 2014 at which a time was set for the provision of declarations. On 29 April 2014 the appellant again appeared in court where the majority of declarations were provided and a defence and an answer charges date was set. The appellant next appeared in court on 13 June 2014 when the answer charges date was delayed for the provision of further declaration material by the DPP and to allow for negotiations between defence and prosecution to occur with respect to a number of summary offences with which the appellant was charged. The appellant came before the court again on 26 June 2014 at which point the guilty pleas were entered after the Information was amended that day in relation to the two counts of aggravated robbery which occurred on 15 February 2014 to remove from the Information one particular of the circumstances of aggravation alleged, namely, that the offences were committed in company with another. On the Information originally laid in relation to the two counts of 15 February 2014 the circumstances of aggravation were alleged to be that the appellant was in possession of an offensive weapon and was in company with another.
On the appeal, Mr MacFarlane, counsel for the appellant, submitted that the learned sentencing judge erred in one of two ways in applying the discount for the appellant’s guilty pleas. First, on the basis that the appellant should have received a discount of 40 per cent. Secondly, in the alternative, that the appellant should have received a discount of 30 per cent.
In order to understand these submissions, it is necessary to set out the terms of s 10C. It provides:
10C—Reduction of sentences for guilty plea in other cases
(1)     This section applies to a sentencing court other than where section 10B applies.
(2)     If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e)     within 7 days immediately following—
(i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or
(ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,
determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(f)    in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(3)     If—
(a)     a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
(b)     the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i)the court did not sit during that period; or
(ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii)the court did not list the defendant's matter for hearing during that period; or
(iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a)     whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b)     the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c)     the circumstances surrounding the plea;
(d)     in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e)     if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;
(f)    whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
(5)Nothing in this section affects the operation of sections 15, 16 and 17.
(6)For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.
Mr MacFarlane submitted that the appellant was entitled to the benefit of s 10C(2)(a) by reason of the operation of the provisions of s 10C(3). He contended that the appellant did not plead guilty within the time prescribed by s 10C(2)(a) because of a matter outside his control, namely, the failure of the prosecution to produce all the declarations within that time frame, thereby depriving him of the opportunity of assessing the strength of the case against him. Mr MacFarlane argued this brought the appellant within the provisions of s 10C(3)(b)(iv). I reject this submission.
The appellant’s guilty plea was entered on 26 June 2014. That was more than four weeks after he first appeared in court in relation to the relevant offences. Those offences were alleged to be the commission of robbery by using force, or threatening to use force contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to be aggravated. Notwithstanding that the Information was subsequently amended on 26 June 2014 to delete one of the allegations of aggravating circumstances, I consider that the “relevant offence” for the purposes of s 10C(2)(a) of the Sentencing Act was the offence of committing robbery by using force or threatening to use force contrary to s 137(1) of the Criminal Law Consolidation Act in circumstances of aggravation. It was always open to the appellant to plead guilty to that offence as originally charged while disputing the circumstances of aggravation. While the particulars of the aggravating circumstances were subsequently amended, the actual offence charged was always the same offence to which the appellant ultimately pleaded guilty on 26 June 2014.
In my view, s 10C(3) did not apply to the appellant’s circumstances. The reason the appellant did not plead guilty within the period prescribed in s 10C(2)(a) was not for any of the reasons specified in s 10C(3)(b). His failure to plead guilty during the relevant period in s 10C(2)(a) was not because of any matter outside his control by reason of which the court was unable to hear his matter. Rather, the reason he did not enter a plea during the relevant period was because of forensic decisions he made. While the appellant is not to be criticised for those forensic decisions – he was plainly entitled to await receipt of declarations before deciding to enter a plea – nonetheless, the legislation is predicated upon a recognition that in order to obtain the maximum possible discount for an early guilty plea, it will usually be entered at a time before declarations or at least all declarations are available to a defendant. The scheme established by s 10C is utilitarian in its approach. It is intended to provide an incentive to defendants to enter early guilty pleas, so as to assist in the efficient administration of justice. To obtain the greatest discount a defendant will frequently be required to decide whether or not to enter an early plea at a time before he or she is in a position to assess the strength of the prosecution case. Plainly, the Parliament must have intended that to occur. Such an intention is consistent with the utilitarian nature of the legislation.
As the Attorney-General said in his Second Reading speech introducing the Bill which led to the enactment of s 10C:
The main objective of the Bill is to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way … at present, it is clear that far too many offenders plead not guilty at committal, only to plead guilty later in the proceedings. The encouragement and expectation should be for those defendants, who are likely to plead guilty in respect of major indictable offences, to do so, before or at committal and not at some later date.
The failure to enter a plea within the time prescribed by s 10C(2)(a) was not because the court was unable to hear the appellant’s matter within that time but because of a choice the appellant made.
Accordingly, I reject the appellant’s first submission in relation to the discount applied for the pleas of guilty. However, I accept the appellant’s alternative submission.
In my view, the learned sentencing judge erred in failing to afford the appellant the entire discount permitted by s 10C(2)(b). As I have noted, the learned sentencing judge reduced the head sentence he would otherwise have imposed by reason of the appellant’s pleas of guilty by 25 per cent. Pursuant to s 10C(2)(b) a discretion is conferred permitting the judge to reduce the appellant’s sentence by up to 30 per cent. In my view, the learned sentencing judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum available. In this context it is important to recognise the basis of the scheme enacted pursuant to s 10C. There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court.[10] Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. In R v McPhee[11] Nicholson J, with whom Vanstone and Blue JJ agreed, said:[12]
In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.
[10] Mead v Police [2014] SASC 61 at [37], (2014) 119 SASR 223 at 233.
[11] [2014] SASCFC 107.
[12] [2014] SASCFC 107 at [46].
If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed. The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why.
Section 10C(4) prescribes the matters which the court must consider in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea. While the prescribed matters are not exhaustive, they do not include any consideration of the strength of the prosecution case. It is to be noted that although the prescribed factors include whether a reduction of the sentence would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of a particular defendant that it would shock the public conscience, the remaining factors are directed to the timing and the circumstances surrounding the guilty plea. To my mind, that serves to highlight the focus of the scheme established by s 10C upon the utilitarian considerations which underpin the scheme.[13]
[13] R v Wakefield [2015] SASCFC 10 at [53] - [56].
In discounting the notional head sentence by 25 per cent the sentencing judge explained that he adopted a process of “instinctive synthesis”. That concept is somewhat opaque. The sentencing judge did explain earlier in his remarks that the appellant was facing a very strong prosecution case in relation to his crimes at the hairdresser’s and there was an air of bowing to the inevitable in relation to those pleas, however the pleas to the other two charges carried greater weight. Commonly, prior to the enactment of s 10C, sentencing judges would refer to the strength of a prosecution case for the purposes of fixing a percentage by which a notional head sentence would be discounted to reflect a guilty plea. But s 10C effects a change in sentencing principles. In my view, under the sentencing regime established pursuant to s 10C, the strength of the prosecution case is a factor which must carry less weight in deciding the discount for an early guilty plea. As discussed earlier, the scheme envisages that in order to obtain the maximum discount an accused person will often have to enter a plea before he or she can know the strength of the prosecution case. The scheme will operate most efficaciously the earlier the plea is entered. The sliding scale of discounts reflects this intent. Depriving an accused person of the full benefit of the discounting regime simply because he or she recognises the strength of the case against him or her so as to deprive the accused person of the full measure of the scheme, seems to me counterintuitive. After all, as I have said, the scheme operates on the basis that a defendant, in order to obtain the maximum discount for which the scheme provides, will usually have to enter a guilty plea before he or she knows the strength of the prosecution case. While I do not suggest that the strength of the prosecution case is irrelevant in all cases to fixing the appropriate discount in the proper exercise of the discretion conferred, in this case I do not consider the reasons for denying the appellant of the full benefit of the discount prescribed by s 10C are adequate. The judge did not refer to the matters prescribed by s 10C(4). Neither did he refer to the utilitarian considerations which underpin the scheme established by the section. In my view, the strength of the prosecution case in relation to counts 3 and 4 did not justify, in this case, reducing the sentence by anything less than the maximum allowable pursuant to s 10C(2)(b). Accordingly, the sentencing judge fell into error. The learned sentencing judge erred in not reducing the sentence he would otherwise have imposed by 30 per cent. In the circumstances, I consider the appropriate course is for this Court to resentence the appellant.
Before turning to consideration of the appropriate sentence, I should address the question of totality.
The learned sentencing judge, having fixed the head sentence at 13 years and six months, added the unexpired balance of the previous sentence to make a total of 17 years and nine days.
The appellant submits this sentence is crushing and the learned sentencing judge erred in failing to reduce it having regard to the principle of totality.
The principle of totality is not precise.[14] It enables a court to mitigate what strict justice would otherwise require where the total effect of the sentences merited by individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.[15] It is not a routine step to be considered in every case and is a principle that will apply in relatively infrequent circumstances.[16] Ordinarily, if the sentence imposed is appropriate for each offence under consideration there will not be any need to consider the totality principle.[17] What is important is that the sentencing process be a just and appropriate measure of the total criminality involved.[18]
[14] R v Randall-Smith and Davi [2008] SASC 99 at [28], (2008) 100 SASR 326 at 333.
[15] R v Rossi (1988) 142 LSJS 451 at 453; R v Anderson [2008] SASC 106 at [24], R v Randall-Smith and Davi [2008] SASC 99 at [28] – [29] and [103] – [108], (2008) 100 SASR 326 at 333 and 353 – 355.
[16] R v B, RWK ([2005] SASC 84 at [16], (2005) 91 SASR 200 at 203.
[17] R v E, AD [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.
[18] Postiglioni v R [1997] HCA 26, (1997) 189 CLR 295 at 307 – 309.
I am satisfied that in the circumstances of this case there is a need to make allowance for the principle of totality.
The offending was serious. The offending occurred shortly after the appellant’s release on parole. The sentencing judge took into account all the personal circumstances of the appellant in fixing the sentence he imposed pursuant to s 18A. In fixing the sentence for this offending, in accordance with the Place standard, it appears the sentencing judge made the sentences for counts 3 and 4 wholly concurrent. As I have observed, this represents a merciful approach on the part of the judge. In my view, however, there was scope for the judge to adopt an approach of partial concurrence in sentencing the appellant on counts 1 and 2. In R v Copeland (No. 2)[19] Kourakis J (as he then was) considered the principles applicable to the question of when sentences for separate offending can be made concurrent. After referring to the frequently cited judgment in Attorney-General (SA) v Tichy[20] where Wells J set out the competing considerations relevant to the imposition of either concurrent or cumulative sentences, Kourakis J set out three reasons why similar and proximate offending committed to further a single criminal plan warrant, at least to some extent, concurrent sentences. Those three reasons are:[21]
(1)The severity of a term of imprisonment increases exponentially as it increases in length;
(2)The length of imprisonment necessary to achieve the objective of deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication of the sentence which would have been imposed for a single offence; and
(3)Where offences are committed within a 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.[22]
[19] [2010] SASCFC 61, (2010) 108 SASR 398.
[20] (1982) 30 SASR 84 at 92 – 93.
[21] [2010] SASCFC 61 at [103] – [105], (2010) 108 SASR 398 at 425 – 426.
[22] Gray and White JJ took a similar approach in [2010] SASCFC 61 at [29], [82] – [87], (2010) 108 SASR 398 at 409 – 411, 419 – 421.

In this case the offending in counts 1 and 2 were committed on the same day, almost within an hour of each other. There is some basis to consider that the offending was related in that the proceeds of the offending in count 1 were only about $100. If the proceeds of the first offence had been sufficient to fund the appellant’s addiction, it may have been that he would not have gone on to commit the offence that is count 2. I note that this was the approach taken by Jacobs J in R v Knowles.[23]In the circumstances, allowing for the invocation of s 18A by the sentencing judge, I consider there is scope for making the notional sentences in respect of counts 1 and 2 partially concurrent having regard to the principle of totality and the considerations identified in Copeland.
[23] (1987) 45 SASR 14 at 19.
I would reduce the notional head sentence on these bases from 18 years to 16 years and six months.
There is no justifiable criticism of the approach of the learned sentencing judge in adding the unexpired period of the previous sentence to the head sentence imposed for this offending.
Applying a discount of 30 per cent, the head sentence should have been 11 years, six months and eighteen days. In my view, it is appropriate to maintain the relationship between the head sentence and the non-parole period. Accordingly, the non-parole period will require adjustment.
Conclusion
I would allow the appeal. I would reduce the head sentence to 11 years, six months and eighteen days. I would add to that the unexpired balance of the appellant’s previous sentence, making a total sentence of 15 years and twenty-seven days. I would fix a non-parole period of eight years. The sentence and the non-parole period will commence on 13 February 2014.