R v Flentjar - [2013] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FLENTJAR
[2013] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
12 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeal against sentence - the appellant pleaded guilty to 20 offences committed over approximately seven weeks - the appellant was on parole at the time of the offending - the appellant was sentenced to nine years, five months and seven days' imprisonment which included an unexpired parole period of four years, two months and seven days - a non-parole period of four years and 11 months' imprisonment was imposed - whether the sentence was manifestly excessive - whether, having regard to the defendant's mental state, the sentencing Judge placed too much weight on deterrence - whether the Judge erred in failing to reduce the sentence pursuant to principles of totality.
Held: appeal dismissed - the sentencing Judge had regard to the appellant's mental state and correctly held that deterrence remained a paramount consideration - the sentences imposed were well within the acceptable range - unexpired parole cannot be taken into account strictly on the principle of totality, though it is part of the personal circumstances of an offender - there are no grounds to intefere with the Judge's decision not to reduce the sentence pursuant to principles of totality.
Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Tsiaras [1996] 1 VR 398; R v Mooney (unreported, Vic CCA, 21 June 1978); Payne v The Queen (2002) 131 A Crim R 432; R v Wiskich (2000) 207 LSJS 431; R v Verdins (2007) 169 A Crim R 581; R v Yaldiz [1998] 2 VR 376; R v E, AD (2005) 93 SASR 20; R v Rossi (1988) 142 LSJS 451; R v Waugh (2005) 93 SASR 274; R v Bennett [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v Kench (2005) 152 A Crim R 294; R v Roberts [2003] WASCA 203; R v Anderson [1981] VR 155, considered.

R v FLENTJAR
[2013] SASCFC 11

KOURAKIS CJ: I agree that the appeal should be dismissed largely for the reasons given by Sulan J. I wish to make just one qualification and one additional remark.
I deal with the qualification first. I am not persuaded that the appellant’s letter to the Court and apology in open court reflect a true acceptance of responsibility. The appellant’s letter still attempts to deflect blame on others. It is, I think, an open question whether the attacks on the appellant’s home caused him to fall into old offending behaviours or whether the attacks reflect an earlier relapse on his part.
The additional remark concerns the question of totality. In my view the sentences of 6 months imprisonment imposed on each of the theft and trespass incidents were lenient in all of the circumstances and were quite distinct from the driving offences which also received moderate sentences. In those circumstances no occasion arose to reduce the accumulation of those sentences on a review of the totality of the sentence.
SULAN J: On 20 December 2012, the defendant and appellant, Benjamin Alfred Flentjar, was granted permission to appeal against a sentence of nine years, five months and seven days’ imprisonment, with a non-parole period of four years and 11 months’ imprisonment, for a series of offences committed between 2 September 2010 and 23 October 2010. The most serious offences were the offence of robbery, and three offences of serious criminal trespass and theft. At the time of committing the offences, the defendant was on parole and, included in the final sentence, was an unexpired period of four years, two months and seven days’ imprisonment. Also included was a reduction to the overall head sentence and non-parole period of one year and seven months, for time that the defendant had spent in custody prior to being sentenced.
The first ground of appeal is that, in light of the defendant’s mental state, the sentencing Judge placed too much weight upon the principles of general and personal deterrence. The second ground is that the sentencing Judge failed to have sufficient regard to the principle of totality when accumulating the sentences for the offences. Finally, it is the defendant’s contention that both the sentence and non-parole period were manifestly excessive.
Background
In order to understand the grounds of appeal, it is necessary to deal in some detail with both the circumstances of the offending and the personal circumstances of the defendant. It is convenient to, first, deal with the personal circumstances of the defendant, as they are relevant to explaining, in part, why he committed the offences.
Personal circumstances
The defendant was born on 12 February 1981. He and his parents lived together with his siblings in the Riverland, until his parents separated when he was ten years of age. He was the middle of five children, having two older brothers, a younger brother and a younger sister. He has contact with his younger brother, but has almost no relationship with his other siblings.
The defendant had a disturbed childhood. His father physically abused him until his parents separated. He was then raised by his mother but, as in many cases that come before criminal courts, he had a troubled time during his adolescent years, often being involved in altercations at school. He left school after Year 8. By that time, he was abusing alcohol and marijuana. At the age of 16, he turned to amphetamines and heroin.
Unsurprisingly, at the age of 13 he became involved in criminal offending. He appeared in the Youth Court charged with robbery. Over a period of three years, he was regularly before the Youth Court charged and convicted with serious offences, including armed robbery, assaulting police and stealing. On several occasions, he received sentences of detention.
His serious adult offending commenced when he was 18 years of age. He was convicted of larceny and received a three month suspended sentence. Within 12 months of receiving that sentence, he committed a series of offences including non-aggravated serious criminal trespass, larceny, resist police and various traffic offences, for which he received a sentence of 23 months and two weeks’ imprisonment, with a non-parole period of 14 months.
In 2001, he committed two serious armed robberies, for which he was convicted and sentenced in the District Court of South Australia on 25 June 2003 to 11 years and eight months’ imprisonment, with a non-parole period of eight years and eight months’ imprisonment. The Court of Criminal Appeal reduced the non-parole period to six years’ imprisonment. The Court indicated that a long parole period was appropriate to give the defendant an opportunity to make a fresh start.
It is clear from the criminal history of the defendant that he has spent the bulk of his adult life in gaol. Part of the problem faced by the defendant is his inability to cope with stresses that occur when living in the community. It would appear that his period in custody did not equip him with the necessary skills to live in the community. I shall refer in more detail to that problem when I deal with the psychiatric and psychological reports which were presented to the sentencing Judge.
The defendant was released on parole on 24 March 2009, and obtained work as a full-time labourer. Initially, he lived with his mother. Some months after his release, the defendant purchased a car and some furniture and moved in to live with his girlfriend, who was a friend of his sister, and who he had met whilst he was living with his mother. The defendant was complying with the conditions of his parole and was not using illicit drugs, with the exception of a very brief period of marijuana use which amounted to a breach of parole.
In June 2010, whilst he was at work, he was informed that his house had been broken into. No one was at the house at the time.
The following day, the house was subject to an arson attack. Significant damage occurred. A few days later, whilst the defendant was at work, the house was ransacked. A number of items were stolen. There was a further home invasion about one week later, when a message was left at the house which read, “Ben where is it?” A police report about the attacks on the house was generated, though it is not clear how many calls to the police were made.
The defendant said that, at that stage, his life changed. He was not coping with the attacks upon the house and the message made him feel as if he was being targeted, but he was not aware of why. As a consequence, he became anxious. He turned to amphetamines, which he used intravenously. He was suffering considerable stress. Much of the furniture which had been stolen or destroyed was not insured. He was anxious about debts he had incurred. It was against this background that he commenced to re-offend.
The offending
On 2 September 2010, whilst he was working, the defendant was required to deliver timber to Gumeracha. From there, the defendant drove to Birdwood where he parked outside a veterinary clinic. He entered the reception area. When the money till was left unattended, the defendant reached in and took $300 and then left the building.
One of the veterinary surgeons and a member of the public chased the defendant to his car, where there was an altercation. The defendant pushed the veterinary surgeon to the ground and then drove away. On 29 September 2011 the defendant pleaded guilty to the offence of robbery, which carries a maximum penalty of 15 years’ imprisonment.
After committing that offence, and prior to being apprehended on 24 October 2010, the defendant committed 19 further offences. He abandoned his job with the timber supply business.
On 11 September 2010, the defendant entered an aged care facility at Fullarton and stole $1,613 in cash from two cash boxes stored in the office. His fingerprints were detected on one of the cash boxes. He pleaded guilty to one count of serious criminal trespass of a non-residential building, and one count of theft. The maximum penalty for each of those offences is ten years’ imprisonment.
On 14 September 2010, the defendant again committed an offence of serious criminal trespass in a non-residential building and theft, when he entered a grocery store in Salisbury and stole $2,642.96. Again, his fingerprints were found on the handles of the drawer in which the cash box was kept.
On 16 September 2010, in the evening, the defendant was stopped by police and asked to produce his driver’s licence. He drove off. Police took the registration number of the car, which was registered in the name of his girlfriend. He pleaded guilty to offences of driving under disqualification, failing to give information, and hinder police. The maximum penalty for driving disqualified is two years’ imprisonment. The maximum penalty for failure to give information is a fine of $5,000, and the maximum penalty for hindering police is a fine of $2500 or six months’ imprisonment.
At about 11pm on 8 October 2010, the defendant was observed by police driving a motor car at excessive speed. Police activated their lights. The defendant sped off, reaching speeds of 120 kilometres per hour in a 60 kilometre per hour zone. He eventually stopped the car and fled on foot. When he was finally apprehended in late October, he told the police that he had run away because he knew he was the subject of a Parole Board warrant. The defendant pleaded guilty to aggravated driving dangerously to escape police pursuit, and to driving whilst disqualified. The fact the defendant was disqualified was an aggravating feature of the more serious offence. The maximum penalty for aggravated driving dangerously to avoid a police pursuit is five years’ imprisonment, and for driving whilst disqualified, two years’ imprisonment.
On 19 October 2010, the defendant entered the staff area of a Coles supermarket. He stole money from the purses of three employees, and from a fourth employee stole a purse containing money, cards and a driver’s licence. He pleaded guilty to one count of serious criminal trespass in a non-residential building and four counts of theft. The maximum penalty for each of those offences is ten years’ imprisonment.
On 19 October 2010, the defendant was discovered on the premises of a primary school. He pleaded guilty to unlawfully being on the premises with the intention to commit theft. The maximum penalty for that offence is two years’ imprisonment.
On 23 October 2010, the defendant entered a private home. He was seen by the occupant who told him to leave, which he did. He then went to another home in the same suburb and was seen on the porch by the occupant. He pretended that he was seeking directions. He then fled the premises, taking a street directory with him. Shortly thereafter, the defendant entered another private home where he was discovered by the occupant. He told the occupant that he was looking for a ball. Later, the occupant found that $70 had been stolen from his wallet. The defendant pleaded guilty to two offences of trespass, and two offences of theft. The maximum penalty for trespass is three years’ imprisonment, and for theft, ten years’ imprisonment.
The sentencing Judge imposed the following sentences. For the offence on 2 September, the defendant received four years’ imprisonment, reduced from six years on account of his plea of guilty. For the offences of 11 September, he received six months’ imprisonment, reduced from nine months having regard to his plea of guilty. In respect of the offences committed on 14 September 2010, the defendant received six months’ imprisonment, reduced from nine months having regard to his plea of guilty. In respect of the driving offences of 16 September 2010, the defendant received two months’ imprisonment, reduced from three months, having regard to his plea of guilty. For the offences of 8 October 2010, he received six months’ imprisonment, reduced from nine months on account of his plea of guilty. For the offences committed on 19 October 2010 at Coles, he received six months’ imprisonment, reduced from nine months’ imprisonment on account of his plea of guilty. For the offences of 19 October 2010 at the primary school, he received two months’ imprisonment, reduced from three months, on account of his plea of guilty. For the offences committed on 23 October 2010, he received six months’ imprisonment, reduced from nine months’ imprisonment, having regard to his plea of guilty.
The cumulative total of the sentences is six years and ten months’ imprisonment. In addition, there was an unexpired balance of parole which the defendant was required to serve of 4 years, 2 months and 7 days’ imprisonment, making a total of 11 years and seven days’ imprisonment.
The sentencing Judge fixed a non-parole period of six years and six months’ imprisonment. He reduced both the head sentence and non-parole period by one year and seven months, being the period the defendant had spent in custody prior to being sentenced. The resulting sentence was nine years, five months and seven days’ imprisonment, with a non-parole period of four years and 11 months’ imprisonment.
The medical reports
The sentencing Judge had been referred to two psychological reports and a psychiatric report.
Dr Raeside, a forensic psychiatrist, outlined the defendant’s background. He observed that a great deal of the offending was committed whilst the defendant was under the influence of drugs, mainly amphetamines.
Dr Raeside concluded that the defendant is currently suffering from an adjustment disorder with mixed anxiety and depressive moods, secondary to significant stress under which the defendant had been labouring prior to committing the offences. He considers the defendant has an underlying antisocial personality disorder. He considers the defendant’s personality profile is often associated with a history of childhood abuse and neglect, poor education and poor social opportunities.
The opinion of Dr White, a forensic psychologist, is that the defendant was suffering from post-traumatic stress disorder, an adjustment disorder with mixed anxiety and depressive moods, and has an antisocial personality disorder. He observed that the defendant had made a genuine attempt to change, but had returned to drugs when confronted with the stressful situation to which I have earlier referred.
Dr Carol Cayley, a consultant psychologist, considers the defendant is suffering from an adjustment disorder with mixed anxiety and depressed mood. She made the following observation:
Mr. Flentjar reported that he believes that he still requires professional assistance to assist him to cope with the psychological consequences of the fire, and his perceived threats to his safety and that of his partner. In my opinion, this will be essential if his current mental health problems are to be ameliorated to any extent. The opportunity for therapeutic intervention may reduce his obsession with this matter.
In addition, Mr. Flentjar would benefit from a structured programme aimed at improving his coping strategies so that when faced with personal stressors in the future, he is better able to manage these situations appropriately.
The writer has no collateral evidence in relation to Mr. Flentjar’s assertion that he repeatedly requested counselling following the fire in March 2010. However, if this is the case, and he was reporting an increased level of dysfunctional behaviour, it would seem imprudent for his assigned correctional services officer not to seek an appropriate service provider, given Mr. Flentjar’s previous lengthy term of imprisonment and the comparatively brief time he had spent living in the community.
Mr. Flentjar reported that he deeply regrets his offending behaviour and that his return to prison has been a cause of deep distress to him, and lead [sic] to deterioration in his mental health. In my opinion, he would benefit from counselling within the prison environment to assist him to come to terms with his current personal circumstances.
Mr. Flentjar reported that he had barely reached adulthood when he was imprisoned for an extended period of time. In my opinion, he needs professional assistance to enable him to develop the skills that individuals in the community find essential in order to manage the complexities of their lives. I do not believe that he will be able to learn these skills in the custodial environment without ongoing professional support.
The defendant and his girlfriend wrote to the sentencing Judge. The letters from the defendant demonstrate some insight into his problems, and demonstrate his desire to rehabilitate himself. It is clear that he has matured and understands more of the effect that he has upon the victims of his offending. His girlfriend has been very supportive.
Sentencing remarks
The sentencing Judge had regard to the psychiatric and psychological reports and to the submissions that had been made, together with the letters from the defendant, the defendant’s girlfriend, and the defendant’s girlfriend’s father. The Judge accepted that the attacks on the defendant’s house had an effect upon him. He took into account the defendant’s belief that he was not given sufficient support when on parole. However, in this regard the Judge observed that the authorities “can do only so much”.

The Judge observed that in this case both personal and general deterrence are paramount sentencing considerations. He considered that the defendant’s drug addiction is of little or no ground for leniency, and that it merely explained the defendant’s behaviour. He correctly observed that the offending is aggravated because the defendant was on parole at the time. He indicated that a lower than usual non-parole period would be set, as he was of the view that a substantial time on parole was appropriate to assist the defendant to make a fresh start upon release. He considered the principle of totality, and was of the view that this did not form a basis for reducing the head sentence imposed.
Mental condition of the defendant
The Judge stated that both personal and general deterrence were paramount considerations in sentencing the defendant. The defendant submits that, due to his mental state and stresses at the time of the offending, it was inappropriate for the Judge to give personal and general deterrence paramount consideration. Allied to this is the submission that the Judge gave insufficient weight to the mental state of the defendant. The defendant submits that his mental condition at the time of the offending was the result of pre-existing conditions caused largely by prior abuse, the attacks on the defendant’s house, and a lack of support for the defendant at and after the time of those attacks.
In R v Tsiaras, the Victorian Court of Appeal (Charles and Callaway JJA and Vincent AJA) said: [1]
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[1] R v Tsiaras [1996] 1 VR 398, 400.
In R v Mooney, Young CJ said: [2]
In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight... General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender’s responsibility for the offence should be regarded as having been reduced.
[Citations omitted.]
[2] (unreported Vic CCA 21 June 1978); quoted in R v Anderson [1981] VR 155, 160 and R v Wiskich (2000) 207 LSJS 431, 440.
In Payne v The Queen, Steytler J said:[3]
…[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.
[3] (2002) 131 A Crim R 432, [43].
The mental state of a defendant at the time of his or her offending is a relevant factor in determining sentence. The circumstances in each case will vary and the weight to be given to matters personal to the defendant will depend on a number of circumstances. The severity of the defendant’s condition is important, especially in considering whether the condition can be regarded as a cause of the offending. Other circumstances will also be relevant, such as the extent to which the defendant has sought treatment. Because of this variation, a close analysis of the evidence must be conducted to reveal the full extent and impact of the condition. As Martin J said in R v Wiskich:[4]
…The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[4] (2000) 207 LSJS 431, 457-458.
In R v Verdins, the Victorian Court of Appeal (Maxwell P, Buchanan and Vincent JJA) reviewed the principles which that Court previously laid down in R v Tsiaras. The Court said:[5]
Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.
[5] (2007) 169 A Crim R 581, 586.
The Court quoted from Winneke ACJ in R v Yaldiz:[6]
It is not appropriate to simply fasten on to the words “recognised psychiatric disorder” and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.
[6] [1998] 2 VR 376, 383; quoted in R v Verdins (2007) 169 A Crim R 581, 586
The Director submits that the defendant has not been diagnosed with a significant or severe mental condition. It is submitted that this is not a case where the defendant could be said to have diminished responsibility for the crimes.
The sentencing Judge had regard to the medical reports tendered. In his remarks, the Judge stated that the defendant’s mental illness “in a sense, diminishes [his] responsibility but does not excuse it.” It is necessary to assess that conclusion by returning to the medical reports to consider the effect which the defendant’s condition had and has on him.
Dr Raeside reviewed the transcript of a police interview with the defendant on 13 November 2010, which was 3 weeks after the last incidents of offending. In Dr Raeside’s opinion, from the transcript there did not appear to be any evidence of significant psychiatric illness. It was Dr Raeside’s opinion, at least in relation to the offending of 2 September 2010, that the defendant was motivated by money rather than any psychotic motive. Dr Raeside’s overall conclusion was:
Although Mr Flentjar’s mental state deteriorated around the time of the alleged offending, in response to stress possibly having already developed an Adjustment Disorder, he also reported significant drug and alcohol abuse. Therefore, whilst he may have had a mental impairment at the time of the alleged offending I could find no evidence that this would have impaired his ability to know the nature and quality of his alleged actions, the wrongfulness of them, nor that he would have been unable to control his conduct. Rather, the self-destructive use of drugs and alcohol appears to have adversely impacted his general functioning, with escalating financial difficulties…
The reports of Dr White and Dr Cayley are not inconsistent with Dr Raeside’s conclusion. Dr White’s report states that the trigger for the defendant’s offending was stress. In Dr Cayley’s report, the defendant is said to have stated that he commenced offending to relieve the financial pressure he was under.
There is no evidence that the defendant’s condition rendered him unable to appreciate the gravity and significance of his conduct. This is not a case where the application of the principles of general and specific deterrence should be seriously diminished. The Judge was right in considering the defendant’s condition a mitigating circumstance while maintaining deterrence as a paramount consideration. The defendant has not demonstrated that the sentencing Judge gave insufficient weight to that condition.
During the course of argument, the defendant submitted that the Judge gave insufficient weight to the circumstances which were causative of the defendant’s condition, such as the attacks on the defendant’s home. It is not as though a Judge, who is not persuaded that the defendant has a mental condition sufficient to reduce the applicability of deterrence principles, can then disregard the circumstances causative of that condition. From the reports it is clear that the defendant’s mental state is the result of a very unfortunate personal history. That history is relevant to sentencing and the Judge had regard to it. The Judge had regard to the attacks on the defendant’s home and the lack of support he received.
Manifestly excessive
Undoubtedly, the defendant has had a difficult and deprived upbringing. The psychological conditions from which he suffers are due, to a significant degree, to his deprived upbringing. Nevertheless, there are many offenders who come before the courts who have had difficult, and in many cases more difficult, circumstances in their childhood. Further, there are many in the community who never offend who have had difficult times and suffered various forms of abuse as children. There is a limit to the leniency the Court can give in the case of those who continually commit offences.
I accept that the defendant was motivated, and is motivated, to change the direction of his life. The fact that he settled into a relationship, had full time employment and was drug free, with one exception, for some 17 months after his release are factors significant to his attempts to rehabilitate himself.
I have concerns about the level of supervision and assistance offenders are given when on parole. It would appear that, in the case of the defendant, when the stressful incidents relating to his home occurred there was insufficient support and foresight to attempt to assist him to get through what was undoubtedly a very stressful time of his life. The Director submits that the defendant’s complaints about a lack of support show an inability to take responsibility for his actions. I disagree. The defendant has taken responsibility both in a letter to the court and in apologies in open court.
Nevertheless, it is difficult to understand that, whilst the defendant was still in employment, he committed the first of a series of offences which resulted in him being before the Court again. The sentencing Judge had regard to the defendant’s upbringing, his mental state, the lack of support offered to him, and all the other personal circumstances that were relevant to sentencing. The sentences imposed were, in my view, well within the range of sentences, having regard to the criminal history of the defendant.
Totality
The defendant submits that the sentencing Judge should have discounted the sentences imposed pursuant to the totality principle.
The Director submits that it was within the discretion of the sentencing Judge not to apply the totality principle, given the unexpired parole and the individual sentences the defendant received.
In R v E, AD, Doyle CJ said:[7]
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that "the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.” The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so "crushing" as to call for some reduction in the aggregate… As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
[Citations omitted.]
[7] (2005) 93 SASR 20, [37] – [38].
The defendant has been sentenced for a series of offences, and his overall sentence includes a period of unexpired parole. There is a question as to how the totality principle applies in such circumstances.
Section 75 of the Correctional Services Act 1982 (SA) provides:
75—Automatic cancellation of parole on imprisonment for offence committed
while on parole
(1) Where—
(a) a person is sentenced to imprisonment for an offence committed while on
parole and the sentence is not suspended; or
(b) the suspension of a sentence of imprisonment imposed for an offence
committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of
imprisonment in respect of which he or she was on parole, being the balance
unexpired as at the day on which the offence was committed.
(1a) Subsection (1) applies notwithstanding that, at the time of conviction of the person or of the revocation of the suspended sentence, the parole may have expired or been discharged.
(2) Where a person referred to in subsection (1) is, at the time of conviction or revocation of the suspended sentence, still on parole, the parole is, by virtue of this subsection, cancelled.
(3) Any period for which the person is detained in custody or in prison after committing the offence is to be counted as or towards the period that the person is liable to serve in prison under this section (and any date on which the sentence is to be taken to have commenced will be fixed accordingly).
In R v Rossi, King CJ said:[8]
…[T]his Court in The Queen v Margetson (unreported Court of Criminal Appeal judgment delivered 16^th October 1987) held that, although the unexpired portion of the previous sentence could not be taken into account strictly on the principle of totality, it was nevertheless part of the personal circumstances of the offender which the Court ought to take into account in considering the sentence which was to be imposed.
[8] (1988) 142 LSJS 451, 453.
In R v Waugh, White J said: [9]
… If the totality principle had any application at all, it was to the fixation of the sentence of imprisonment for the offences for which the judge was sentencing the appellant. It could not be applied so as to reduce the unexpired balance of the previous sentence which the appellant had to serve by virtue of s 75(1) of the Correctional Services Act. Although the unexpired balance of a previous sentence cannot be reduced, it is nevertheless part of the personal circumstances of the offender which a sentencing court should take into account in considering the sentence which it will impose for the current offending.
[citations omitted.]
[9] (2005) 93 SASR 274, 283.
The question then is whether, having regard to the unexpired balance of the previous sentence as a personal circumstance of the defendant, the additional term of imprisonment imposed should be seen as crushing. That personal circumstance will weigh very heavily on the defendant. Its effect is to delay the commencement of the additional term imposed by the sentencing Judge. A sentence which is not to commence until some future date is necessarily more severe than one to be commenced immediately.[10]
[10] See R v Roberts [2003] WASCA 203, [16].
While the unexpired balance of a previous sentence is a personal circumstance of the defendant, the totality principle must not be applied in a manner which effectively avoids the application of s 75. A sentencing court proceeds on the basis of s 75 when it considers a non-parole period. To vitiate that provision by application of totality principles would undermine an assumption on which a prior sentencing court must proceed. Further, it is trite to say that the fact a person is on parole when she or he commits further offences is an aggravating feature rather than a ground for reducing a subsequent sentence by reference to the principle of totality.

Counsel for the defendant submits that the fact the offences were part of a course of conduct extending over about 7 weeks supports the application of the totality principle. That fact is only indirectly relevant to consideration of the principle. The principle does not apply any more readily to a spate of offending than it does to more distinct occasions of offending. The principle requires considering whether the sum of the offending is reflected in the sum of the sentence. In this regard, there may be occasions where the fact the offending occurs in something of a spree rather than in distinct acts supports a conclusion that the spree is lesser than the sum of the individual offences. There may be occasions where the converse is true. In the current case, the fact the defendant’s offending occurred over seven weeks weighs slightly in favour of a reduction on grounds of totality.
The Director submits that the additional term imposed was not crushing. In support of this submission, the Director noted that the Judge applied s 18A of the Criminal Law (Sentencing) Act to each occasion where the defendant had committed more than one offence at the one location. The totality principle has no application where a Judge determines a single sentence under s 18A without attributing notional sentences to each offence.[11] However, where a Judge places offences in groups and then imposes single penalties for each group pursuant to s 18A, the totality principle applies to the culmination of the notional sentences imposed.
[11] R v Bennett [2005] SASC 55, [15]; R v B, RWK (2005) 91 SASR 200, [16] – [17], [24] – [25]; R v Kench (2005) 152 A Crim R 294, [42].
As I have outlined, the defendant has an extensive criminal record. When he was last before this Court convicted of two counts of armed robbery, he received substantial time on parole to enable him to make a fresh start. As I have said, the defendant did take steps while on parole to get his life “on track.” However, when he became stressed he reverted to drug use and offending. He has been given many opportunities, which he has squandered.
There are no grounds to interfere with the sentencing Judge’s decision to not reduce the sentence pursuant to the principles of totality. The individual sentences imposed were moderate. When those sentences are combined and considered in light of the defendant’s circumstances, including the requirement that he serve the balance of his previous sentence and his history of offending, the overall sentence was proportionate to the offending conduct.
For the foregoing reasons, the appeal should be dismissed.
DAVID J: I would dismiss the appeal. I agree with the reasons of Sulan J.