R v Fuller - [2013] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FULLER
[2013] SASCFC 85
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Nicholson)
16 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
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 - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
Appeal against sentence. The defendant and appellant, Christopher Martin Fuller, was convicted of the offence of trafficking in a controlled drug and sentenced to imprisonment for five years. The defendant pleaded guilty to one offence of unlawful possession of a dangerous article and one offence of possession of a prohibited weapon, and was sentenced to a term of imprisonment of four months. The defendant was jointly charged with three counts of unlawful sexual intercourse with a child under the age of 14 years. The offences were committed with a child aged eight years. The defendant pleaded guilty to the offences of unlawful sexual intercourse and was sentenced to a term of imprisonment of seven years and four months. The defendant’s co-offender was sentenced to a term of imprisonment of six years and eight months in respect of the offences of unlawful sexual intercourse. The defendant pleaded guilty to the offence of aggravated possession of child pornography and was sentenced to a term of imprisonment of two years and four months. All terms of imprisonment were ordered to be served cumulatively, leading to a total head sentence of 15 years imprisonment. The head sentence was reduced to a period of 13 years and eight months on account of the principle of totality and time already spent in custody. No reduction was made as to any particular sentence. At the time of sentencing, the defendant was serving an earlier sentence of 18 months imprisonment, with a non-parole period of 12 months. The Judge extended the existing non-parole period of 12 months to a period of nine years and six months.
Whether the sentence of five years for trafficking in a controlled drug was manifestly excessive. Whether the Judge erred in finding that the major portion of the drugs was for personal use.
Held per Gray J (David and Nicholson JJ concurring): The sentence of five years imprisonment was within the discretion of the Judge having regard to the nature of the offending. The Judge’s conclusion that the major portion of the drugs was for trafficking was open on the evidence.
Whether the sentence of seven years and four months in respect of the three counts of unlawful sexual intercourse was manifestly excessive.
Held per Gray J (David and Nicholson JJ concurring): The sentence of seven years and four months was within the discretion of the Judge having regard to the aggravating features of the offending and the nature of the offences.
Whether the Judge erred in failing to find that the sentences imposed in respect of the offences of unlawful sexual intercourse and aggravated possession of child pornography should have been made concurrent. Where a portion of the pornographic materials had been produced in circumstances relating to the offences of unlawful sexual intercourse.
Held per Gray J (David and Nicholson JJ concurring): There was a strong argument for concurrency. The question for the appeal court, however, is whether the overall sentence is manifestly excessive.
Whether the Judge erred in making an insufficient discount to the notional head sentences on account of the pleas of guilty. Where the total reduction on account of the early pleas was for a period of two years and four months.
Held per Gray J (David and Nicholson JJ concurring): The overall reduction on account of the guilty pleas was within the discretion of the Judge.
Whether there was a lack of parity in the sentencing of the defendant and his co-offender in respect of the offences of unlawful sexual intercourse.
Held per Gray J (David and Nicholson JJ concurring): There was a proper basis on which to differentiate between the defendant and his co-offender.
Whether the Judge erred in making an insufficient discount to the overall sentence on account of the principle of totality.
Held per Gray J (David and Nicholson JJ concurring): The reduction made on account of the principle of totality was reasonable in the circumstances. The individual sentences as moderated by the principle of totality were not manifestly excessive. The total term of imprisonment was not manifestly excessive.
Whether the Record of Proceedings of the Sentencing Court should be amended to correct an error.
Held per Gray J (David and Nicholson JJ concurring): The Record of Proceedings should be amended to accurately record that the sentence imposed is to commence at the expiration of the earlier term of imprisonment.
Whether the discrete sentences imposed for the separate offending should be adjusted to reflect the reduction made on account of the principle of totality. Where the Judge ordered that the overall sentence be reduced on account of the principle of totality but did not specify how each individual sentence was to be adjusted.
Held per Gray J (David and Nicholson JJ concurring): The Record of Proceedings is to be amended so that the reduction on account of the principle of totality is reflected in reductions to the individual sentences.
Criminal Law (Sentencing) Act 1988 (SA) s 10(4) and s 18A; Criminal Law Consolidation Act 1935 (SA) s 353(4), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Ford (2008) 100 SASR 94; R v Stevens [2008] SASC 170; R v Ohmer [2011] SASCFC 44; R v Padberg (2010) 107 SASR 386; R v McGaffin (2010) 206 A Crim R 188; R v O’Connor [2012] SASCFC 15; R v Gent (2005) 162 A Crim R 29; R v Hill (2011) 110 SASR 588; The Attorney-General v Tichy (1982) 30 SASR 84; R v Copeland (No 2) (2010) 108 SASR 398; R v Bagnato (2011) 112 SASR 39; R v Simpson (2004) 89 SASR 515; The Queen v Slater (1984) 36 SASR 524; R v Martin [2009] SASC 26; Green v The Queen (2011) 244 CLR 462; R v Lagana [2012] SASCFC 135; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Police v El-Zaibak (2004) 90 SASR 217; The Queen v MacGowan (1986) 42 SASR 580; R v Kite (1971) 2 SASR 94; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Rossi (1988) 142 LSJS 451; R v Anderson [2008] SASC 106; R v Bennett [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v Cramp (2010) 106 SASR 304; R v Williams [2006] SASC 237; R v Becker (2005) 91 SASR 498, considered.

R v FULLER
[2013] SASCFC 85
Court of Criminal Appeal: Gray, David and Nicholson JJ
GRAY J.

This is an appeal against sentences imposed in the District Court on 22 April 2013.
The defendant and appellant, Christopher Martin Fuller, was found guilty by jury verdict following a trial in the District Court of the offence of trafficking in a controlled drug. He faced a maximum penalty of 10 years imprisonment. He was sentenced to a term of imprisonment of five years.
Following his pleas of guilty the defendant was convicted on two counts of unlawful possession, being one count of possession of a prohibited weapon and one count of possession of a dangerous article. In respect of this offending a single sentence of imprisonment of four months was imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). Although the defendant was convicted of the further offence of failing to store ammunition separately from firearms no further penalty was imposed.
The defendant was jointly charged with sexual offending. His co-offender was his de facto partner. Both the defendant and his co-offender were convicted on their pleas of guilty to three counts of unlawful sexual intercourse with a child under the age of 14 years. The female child was aged eight years at the time of the offences. Each offence exposed the defendant to a maximum penalty of life imprisonment. The defendant was sentenced pursuant to section 18A of the Sentencing Act to a term of imprisonment of seven years and four months in respect of this offending. In arriving at that sentence, the Judge made a reduction of one year and eight months on account of the defendant’s pleas of guilty. The defendant’s co-offender was sentenced to a term of imprisonment of six years and eight months in respect of this offending. In arriving at the sentence for the co-offender, the Judge made a reduction of one year and ten months on account of the co-offender’s pleas of guilty.
The defendant and his co-offender were convicted on their pleas to the offence of aggravated possession of child pornography. Both were sentenced to terms of imprisonment of two years and four months. In each case, a reduction of eight months was made on account of the pleas of guilty.
As a consequence of the above sentences, ordered to be served cumulatively, the defendant faced a total term of imprisonment of 15 years. The Judge then considered the application of the principle of totality and took into account the period of five weeks that the defendant had spent in custody. As a consequence, the Judge reduced the total term of imprisonment to a period of 13 years and eight months. No reduction was made to any particular sentence.
On 20 September 2012, the defendant was sentenced by Muecke DCJ, to a term of imprisonment of 18 months with a non-parole period of 12 months on two counts of possessing a firearm without a licence. The sentence commenced on 18 May 2012. At the time that the defendant was sentenced for the present offending, he was serving the 18 month term of imprisonment.
The Judge directed that the sentence of 13 years and eight months commence on the expiration of the earlier sentence of 18 months imposed by Muecke DCJ. As a consequence, the defendant faced a total term of imprisonment of 15 years and two months. The Judge extended the non-parole period to nine years and six months in respect of this total term of imprisonment and directed that this extended non-parole period be taken to have commenced on 18 May 2012.
The defendant’s co-offender faced a total term of imprisonment of nine years. The Judge made no reduction on account of totality. A non-parole period of five years was fixed. The co-offender has not appealed.
On the appeal, the defendant complained that the sentences imposed were manifestly excessive. It was said that the Judge had erred in a number of respects.
The defendant submitted that the sentence of five years for trafficking in a controlled drug was manifestly excessive. It was said that the Judge failed to adequately indicate the factual basis on which he had sentenced. It was contended that the Judge should have made a finding that the major portion of the drugs was for personal use. It was argued that only a small portion of the drugs was for sale and that, in those circumstances, the sentence was manifestly excessive.
The defendant complained that the sentence of seven years and four months in respect of the three counts of unlawful sexual intercourse was manifestly excessive. It was said that there had not been persistent sexual abuse over a lengthy period and that this circumstance distinguished the offending from the more serious offences of this nature. A further complaint advanced was that the sentence imposed in respect of the offences of unlawful sexual intercourse and the sentence imposed for the offence of aggravated possession of child pornography should have been made concurrent, or at least partly concurrent, as the filming of the acts of unlawful sexual intercourse formed part of the child pornography offending.
Complaint was made that the Judge had insufficiently discounted the notional head sentences on account of the pleas of guilty. It was contended that pleas were entered at an early stage and evidenced contrition and remorse. A further complaint advanced was that there was a lack of parity in the sentencing of the defendant and his co-offender. It was said, in particular, that there was no basis to differentiate their complicity in the acts of unlawful sexual intercourse. Finally, it was contended that a greater reduction should have been made as a consequence of the application of the principle of totality.
Trafficking in a Controlled Drug
It is settled that when sentencing for offences involving commercial drug trading, considerations of personal and general deterrence should be given considerable weight.[1] In Ford, with the concurrence of Doyle CJ and Bleby J, I observed:[2]
This Court has emphasised over many years that engaging in commercial dealings in drugs is a very serious crime. As earlier observed, the maximum penalty of imprisonment on each count is 25 years. It is rare that a person engaging in a commercial dealing would receive a suspended term of imprisonment. The role of this applicant may be contrasted to that of a courier. There is a need for a strong element of general deterrence when sentencing for these crimes.
[Footnotes omitted.]
The social costs and evils that result from the illicit drug trade are well known.[3] When sentencing for illicit drug offences, the sentencing judge should have deterrence at the forefront of his or her mind.[4] This may lead to less weight being accorded to circumstances personal to the offender than otherwise might be the case.[5] In sentencing for an illicit drug offence, regard should be had to the extent of the enterprise including the nature, quantity and value of the drugs involved.[6]
[1]    R v Mangelsdorf (1995) 66 SASR 60; R v Ford (2008) 100 SASR 94, [50]; R v Stevens [2008] SASC 170.
[2]    R v Ford (2008) 100 SASR 94, [50].
[3]    R v Moran [2010] SASC 66, [19].
[4]    R v Mangelsdorf (1995) 66 SASR 60, 70.
[5]    R v Mangelsdorf (1995) 66 SASR 60, 66.
[6]    R v Cetojevic (2005) 92 SASR 451, [25].
On 19 May 2011, police searched the defendant’s residence. They located 62.63 grams of material containing 14.89 grams of methylamphetamine. In addition to the quantity of the drug, the prosecution relied on other evidence as an indicia of trafficking. That evidence included the location of $2,170.00 in cash, predominately in $50 notes; a quantity of press-seal bags; and the presence of digital scales, a taser and CCTV equipment. Sixty two grams of the material were located in close proximity to 62 press-seal bags and the earlier referred to cash.
The defendant gave evidence that he purchased the methylamphetamine for $8,000.00 from monies obtained from his car sales business. That was in conflict with the evidence of a drug investigation officer as to the value of that quantity of methylamphetamine. The defendant also gave evidence that he was using up to 1.5 grams of methylamphetamine a day and that the methylamphetamine was for his own use and that of his partner.
The Judge in respect of this offending concluded:
The court heard the evidence surrounding this offending at trial. Your evidence did not cause the jury to entertain a reasonable doubt as to your guilt of the trafficking charge. I accept that you are a user of methamphetamine and I am satisfied that you would have used a portion of the methylamphetamine yourself and also shared a portion with [your co-offender]. However, consistent with the verdict of the jury, the total amount of methylamphetamine seized was not to be consumed by the two of you. The presence of a large quantity of press-seal bags, digital scales and the significant sum of cash suggests to me that a greater portion of the methylamphetamine would have been trafficked but I cannot say how much.
I accept that you were an addict but, again, consistent with the jury’s verdict, part of the proceeds were to do more than finance your habit, although I cannot say how much money you would have made. That said, I am satisfied that this would have been a commercial operation. Your counsel has submitted that your living arrangements at the time of the offending were not consistent with someone making significant sums out of drug trafficking. Your counsel further submitted that you ran a legitimate car business and that you were not reliant upon the proceeds of drug trafficking for living expenses.
I have viewed the bundles of photographs provided to me by the prosecution that disclose a well tooled and capitalised commercial operation in the repair and conversion of motor vehicles. Although I am not satisfied of your explanation, I will leave that issue to one side and sentence you without having regard to that issue.
In sentencing you for this offence I take into account the serious harm that a large quantity of methylamphetamine such as this would have had on the community had it not been seized.
The Judge found that a portion of the methylamphetamine would have been used personally by the defendant and some shared with his co-offender. The Judge could not say how much would have been trafficked but found that it would have been a greater portion of the methylamphetamine. The quantity and value of the methylamphetamine involved places the defendant’s level of offending above the kind of “street dealing” which might occupy the low end of the spectrum of trafficking offences. The Judge’s findings were open given the presence of a large quantity of press-seal bags, digital scales and a substantial sum of cash, as well as the potential value of the drug itself. The Judge found that the defendant would have profited from trafficking beyond the amount required to fund his own habit. That finding was also open on the evidence. The value of the drugs was said to be between $31,500.00 to $63,000.00.
The drug offending of the defendant was serious. The evidence supported the Judge’s conclusion that the greater portion of the methylamphetamine was to be trafficked. The sentence of five years imprisonment, although substantial, was within the Judge’s sentencing discretion. I reject the submission that this sentence was manifestly excessive.
Unlawful Sexual Intercourse
The Judge described the defendant’s offending in respect of the unlawful sexual intercourse in the following terms:
I will deal first with the factual circumstances surrounding the three counts of unlawful sexual intercourse with a person under 14 years of age, at the time the child was an eight year old girl.
On 9 April 2012 at about 12.44 p.m. you, [the co-offender], phoned your stepsister and the mother of the victim purporting to have a spare ticket to a Wiggles concert. You told the mother that you were taking other children and asked if you could take one of your nieces. The child’s mother agreed and you collected her about 10 or 15 minutes later. You said to her mother that the concert would take only about an hour and so you would drop her off once it had finished.
At that time or soon thereafter you had purchased clothes such as skirts, tops and fish net stockings that the child was to wear during the time these offences were to occur, particularly in the pornographic photographs taken of the child during these events.
You did not return the child as per the arrangements made with her mother. A series of text messages, phone calls and Facebook messages were exchanged in which the victim’s mother demanded that the child be returned. The child’s mother insisted that you return the child but you failed to take heed of the mother’s insistence.
The child then stayed overnight at your house against the wishes of her mother and the house in reference here is the house of [the defendant]. It was during this overnight stay that these terrible offences occurred.
Whilst in your care you also purchased several gifts for the child including shoes and jewellery apparently in an attempt to bribe the child to silence.
The child was not returned until the following day. Upon returning home she told her mother that there was no Wiggles concert and consequently she made the first complaint of sexual abuse.
Each of the three counts of unlawful sexual intercourse are particularised acts of sexual intercourse. The first count arises from the acts of fellatio performed by the victim upon you, [the defendant]. [The co-offender], you were involved in the act by your active encouragement of the victim in this act.
The second count involves the acts of cunnilingus performed by you [the defendant] upon the victim.
The third count arises from the acts of digital penetration performed by you, [the defendant] , upon the victim.
Although the physical acts as I have just described were performed by you [the defendant], you [the co-offender] are jointly liable for this conduct due to your participation in the enterprise. You actively engaged with and assisted [the defendant] to procure the child to engage in sexual intercourse. I have reviewed the CCTV footage of the events and you are equally involved in all of these terrible events.
I have also read and had regard to the text message exchanges recovered from one of the phones believed to belong to you [the defendant]. It discloses a plan between the two of you to procure the child and to subject her to these terrible acts. This plan was actively formed between the two of you and the child was to be the victim.
I regard these offences as particularly serious given the aggravated feature of the offending, namely, the relationship between yourselves and the victim. I have read and had regard to the victim impact statement of the victim’s mother. You grossly abused the trust and responsibility given to you by your family and completely violated your relationship with your niece. Your offending has caused great distress to the victim’s family and in the victim impact statement the mother says that these events will have an ongoing impact on the victim for the rest of her life.
Your whole conduct was reprehensible.
There was no challenge to the accuracy of these remarks.

Section 10(4) of the Sentencing Act records that a primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is to be given to the need for deterrence.[7]
[7] See R v Ohmer [2011] SASCFC 44, [15].
There were aggravating features to the present offending. These included the circumstance of premeditation, the creation of a situation where the child was in the care of the co-offender and vulnerable to exploitation, the exploitation of the child when in the care of a relative, the photographing of the child posing in sexually seductive positions and the seriousness and duration of the sexual abuse. The participation of two adults in repeated and varied sexual acts in the presence of the child; the apparent sexual gratification experienced by the defendant and the apparent distress and psychological trauma suffered by the child are further matters of aggravation.
The Judge was correct to describe the conduct of the defendant as “reprehensible”. That conduct involved the abuse of an eight year old child while in the care of the defendant’s partner. The defendant’s criminality was very serious. The defendant acted with his partner in a premeditated course of conduct involving the prolonged abuse of the child. The sentence of seven years and four months was well within the Judge’s sentencing discretion.
Aggravated Possession of Child Pornography
Possessing child pornography is an inherently serious criminal offence, particularly where the amount of material possessed is significant and the subject matter is graphic.[8] When sentencing for offences involving the possession of child pornography, sentencing courts must give a high weighting to general deterrence. That is, in part, because of the exploitation and harming of the children involved in its production and because those who make up the market for such material by acquiring it are themselves accountable for the persistence of the serious social evil of child pornography.[9] In sentencing for offences involving child pornography, an offender’s previous good character is to be given limited weight.[10]
[8] R v Padberg (2010) 107 SASR 386, [17], [27]; R v McGaffin (2010) 206 A Crim R 188; R v Ohmer [2011] SASCFC 44, [13]; R v O’Connor [2012] SASCFC 15, [15].
[9] R v Padberg (2010) 107 SASR 386, [18]-[21], [41]-[44]; R v McGaffin (2010) 206 A Crim R 188, [18], [64]; R v O’Connor [2012] SASCFC 15.
[10] R v Gent (2005) 162 A Crim R 29, [63]-[65]; R v McGaffin (2010) 206 A Crim R 188, [18]; R v Hill (2011) 110 SASR 588, [16].
In respect of the charge of aggravated possession of child pornography, the Judge remarked:
In relation to the charge of aggravated possession of child pornography, on 10 April 2012, police seized from your home a number of electronic devices including an HP laptop, an ASUS laptop, a digital device and mobile telephones. The HP laptop contained six images of child pornography and are categorised from levels five to nine on the COPINE scale. The ASUS laptop contained 686 images predominantly of child pornography. These images were categorised from levels one to four on the COPINE scale. A digital device seized contained 24 images of the victim and are categorised as level four on the COPINE scale. A mobile telephone, seized from [the defendant] contained child pornography in the form of videos which were categorised as level nine on the COPINE scale.
The CCTV system footage seized contained footage of you both engaged in sexual activities with the victim. These images are characterised as level nine on the COPINE scale. I accept that the images were possessed for a prurient purpose and in the context of the offending were accessed for your own sexual gratification.
As requested by the prosecution I have also viewed the CCTV footage and images provided to me by the prosecution. I consider these offences to be on the most serious end of the scale given the classification and sheer quantity of images and films. They are all very disturbing.
In the submission of the prosecution the fact of the existence of the CCTV footage may be taken into account in two respects: first, the offending is more serious due to a number of features of aggravation including the filming of the victim engaged in the acts of sexual intercourse. Second, the fact that the filming of the acts, the subject of each of the offences and thus the creation of the films, was also a matter to be taken into account in sentencing for aggravated possession of child pornography. I accept the submission of the prosecution in this regard and defence counsel did not make any submissions to the contrary. However, I am also mindful that an offender may not be punished twice in respect of the same offence but I am satisfied that this is not such a case.
Concurrent and Partially Concurrent Sentences
The defendant submitted that the offences of unlawful sexual intercourse and aggravated possession of child pornography arose out of one course of conduct and the Judge should have considered making the sentences concurrent or partially concurrent.
There are no comprehensive principles to determine where sentences should be served concurrently or consecutively. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time.[11] Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature or each important feature of the criminal conduct under consideration.[12] It was submitted by the Director of Public Prosecutions that it was within the discretion of the Judge to accumulate the sentences for these offences.
[11] The Attorney-General v Tichy (1982) 30 SASR 84, 92-93; R v Copeland (No 2) (2010) 108 SASR 398, [99].
[12] The Attorney-General v Tichy (1982) 30 SASR 84.
The video recording of the sexual offending was pre-planned by the defendant and his co-offender. It was undertaken with the intention that the footage could be viewed at a later stage and it would allow ongoing sexual gratification from the commission of the unlawful sexual intercourse offences. It is conduct which is, to a degree distinct from the unlawful sexual intercourse charges themselves and it required additional punishment.
It is relevant to note that the video recording of the acts of unlawful sexual intercourse was not the only material the subject of the charge of aggravated possession of child pornography. That other material is identified in the above extract from the Judge’s sentencing remarks.
The defendant’s submission that the Judge should have addressed concurrency raises an important consideration. To my mind there was a strong argument for partial concurrency. It may be inferred that the Judge addressed this question when he considered totality. Regardless, however, of whether notional sentences are complained of on the basis that they should have been made cumulative, concurrent or partially concurrent, the question remains whether the overall sentence is manifestly excessive.[13]
[13] R v Bagnato (2011) 112 SASR 39, [52].
Manifestly Excessive Sentence
The notional sentences, after allowing for reductions on account of the pleas of guilty and before the Judge’s consideration of totality, led to a notional total term of imprisonment of 15 years, comprised of seven years and four months on account of the offences of unlawful sexual intercourse, two years and four months on account of the offence of aggravated possession of child pornography, five years on account of the offence of trafficking in a controlled drug and four months on account of the offence of unlawful possession. Viewed individually, each of the respective sentences were within the sentencing discretion of the Judge.
It is to be accepted that the five year sentence of imprisonment for trafficking in a controlled drug was a heavy sentence. In addition, as discussed above, there is an argument in favour of partial concurrency in the sentences imposed for the offences of unlawful sexual intercourse and aggravated possession of child pornography.
The impact of these matters did call for the overall notional term of imprisonment of 15 years to be moderated through the principle of totality. As discussed later, in my view, the total term of imprisonment faced by the defendant of 13 years and eight months for all of the present offending was not manifestly excessive. I will return to discuss the application of the principle of totality later in these reasons. Before doing so, it is appropriate to consider the remaining matters of complaint.
Reductions for Pleas of Guilty
The defendant pleaded guilty at committal to the offences of unlawful sexual intercourse and the possession of child pornography. He was entitled to credit for these pleas. The amount of any reduction made for a plea of guilty or cooperation with authorities is wholly discretionary.[14]
[14] R v Simpson (2004) 89 SASR 515, [71].
The strength of the prosecution case is a relevant factor in assessing the extent of the discount to be allowed.[15] In relation to the offences of unlawful sexual intercourse and aggravated possession of child pornography, the defendant was faced with a strong prosecution case given that the offending was filmed on CCTV.[16]
[15] The Queen v Slater (1984) 36 SASR 524, 525-526; R v Martin [2009] SASC 26, [25].
[16] The appellant submits in his Outline of Argument that his plea avoided the victim being proofed and ensured that she suffered the least distress possible. However, the strength of the prosecution case was such that in all likelihood the matter could have proceeded without the requirement of the victim giving evidence.
It is to be accepted that the Judge was not entirely consistent in his approach to the making of reductions. The extent of the reductions varied a little. There is no evident explanation for those variations. However, the total reduction was for a period of two years and four months, leading to a head sentence of nine years and eight months. I consider this to be an overall reduction within the discretion of the Judge.
Parity
The parity principle recognises that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance.[17] It is one aspect of equal justice. Like cases are to be treated alike.[18] The obvious corollary of the principle is that unlike cases need not be treated alike.[19]
[17] Green v The Queen (2011) 244 CLR 462; R v Lagana [2012] SASCFC 135; Lowe v The Queen (1984) 154 CLR 606, 613.
[18] Green v The Queen (2011) 244 CLR 462; R v Lagana [2012] SASCFC 135; Lowe v The Queen (1984) 154 CLR 606, 610-611; Postiglione v The Queen (1997) 189 CLR 295, 301-302.
[19] Lowe v The Queen (1984) 154 CLR 606, 610, 617. See also Police v El-Zaibak (2004) 90 SASR 217, [12].
This Court’s approach in ascertaining whether there is disparity calling for interference should take into account all the circumstances of the offenders. As was observed in Postiglione:[20]
…disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
The test of whether there is a justifiable sense of grievance is an objective one.[21]
[20] Postiglione v The Queen (1997) 189 CLR 295, 301-302.
[21] Postiglione v The Queen (1997) 189 CLR 295, 323.
It must not be overlooked that the sentence imposed on the defendant must properly reflect the seriousness of the offence and, insofar as relevant, his own personal circumstances. It is settled that there are instances where any sense of grievance experienced by a defendant should be tolerated in the public interest.[22] If a defendant is treated justly, he has no right to complain.[23]
[22] The Queen v MacGowan (1986) 42 SASR 580, 583. See also R v Kite (1971) 2 SASR 94, 96.
[23] R v Kite (1971) 2 SASR 94, 96.
In the present proceeding, the defendant’s complaint relates to the sentence imposed for the offences of unlawful sexual intercourse. The disparity in the sentences imposed for the defendant and the co-offender is not marked. It is suggested that the defendant ultimately showed greater remorse and accepted greater responsibility for the criminal conduct than did the co-offender. However, there are a number of matters of differentiation. One matter was their respective ages; the defendant was 32 years old and his co-offender was aged 22 years. Another was that the defendant had the more significant criminal antecedents. There was, in my view, a proper basis upon which to differentiate between the defendant and his co-offender.
Totality
The principle of totality has been described as imprecise.[24] The principle is designed to enable a court to mitigate what strict justice might otherwise indicate. Where the total effect of the sentences merited by individual crimes becomes crushing, a Court may consider a merciful intervention by way of reducing the total effect to be appropriate.[25] It is not a routine step to be considered in every case.[26] It is a principle that may have application depending on the circumstances of the particular case.[27] It is important that the sentencing process be a just and appropriate measure of the total criminality involved.[28]
[24] R v Randall-Smith and Davi (2008) 100 SASR 326, [28].
[25] R v Rossi (1988) 142 LSJS 451, 453; R v Anderson [2008] SASC 106, [24]; R v Randall-Smith and Davi (2008) 100 SASR 326, [28]-[29], [103]-[108].
[26] R v Bennett [2005] SASC 55, [15]; R v Anderson [2008] SASC 106, [27]; R v B, RWK (2005) 91 SASR 200, [16].
[27] R v B, RWK (2005) 91 SASR 200, [16].
[28] Postiglione v R (1997) 189 CLR 295, 307-309; R v Randall-Smith and Davi (2008) 100 SASR 326, [104]-[105].
The prescription against imposing a crushing sentence reflects the need to promote rehabilitation. Where there are reasonable prospects of rehabilitation, and the requirements of punishment and deterrence otherwise allow, care should be taken not to impose a sentence which leaves the offender in a state of despair.[29]
[29] R v Cramp (2010) 106 SASR 304, [51].
Ultimately the question for this Court is not whether sufficient allowance was made for the totality principle but whether this Court should conclude that a different sentence should have been passed.[30]
[30] Criminal Law Consolidation Act1935 (SA) section 353(4).
The Judge made a reduction to the head sentence of one year and four months on account of the principle of totality and a period of five weeks spent in custody.[31] As noted above, the defendant submitted on the appeal that the Judge made an inadequate allowance when invoking the principle of totality in relation to the head sentence and the non-parole period.
[31] With respect to the offences for which the sentencing Judge applied section 18A of the Sentencing Act 1988 (SA), arguably no further reduction under the totality principle was called for. In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: R v Bennett [2005] SASC 55, [15]-[16] per Doyle CJ, Vanstone and White JJ agreeing. For the offences for which the sentencing Judge separately sentenced the defendant, the application of the totality principle should have been reflected in a reduction to one or both of the separate sentences imposed: R v Becker (2005) 91 SASR 498, [56]-[61]. However, the ultimate question is still whether a different sentence should have been passed.
The Director submitted that adequate allowance was made for totality in relation to the head sentence. Attention was drawn to several matters including the involvement of the defendant in varied criminal conduct over a period of years, the seriousness of the offending, the requirements of personal and general deterrence, and the guarded prognosis about the defendant’s prospects for rehabilitation. It is also relevant to have regard to the fact that the defendant committed the drug offences and the sexual offences while on bail. This is a further matter of aggravation.
In my view, the submissions of the Director should be accepted.
However, as noted above, the question for this Court is whether different sentences should have been passed. The requires a consideration of whether any of the sentences were manifestly excessive, or whether the total period of imprisonment of 13 years and eight months was so severe as to be crushing. In my view, the individual sentences as moderated by the principle of totality were within the Judge’s sentencing discretion. They were not manifestly excessive. Further, the total term of imprisonment is not manifestly excessive. It is not crushing. The non-parole period as extended was proportionate to the ultimate head sentence and was appropriate in the circumstances.
Two Further Matters
The Record of Proceedings
On the hearing of the appeal, the Court’s attention was drawn to an error in the Record of Proceedings of 22 April 2013. Contrary to the order of the Judge, at the time of sentencing, the sentence imposed of 13 years and eight months was later recorded to have commenced on 18 May 2012. This is incorrect. The order of the Judge at the time of sentencing was that the sentence of 13 years and eight months commence on the expiration of the term of imprisonment then being served, being the sentence imposed by Judge Muecke on 20 September 2012.
As earlier referred to in these reasons, the defendant was sentenced on 20 September 2012 in relation to two counts of possessing a firearm without a licence. The sentencing Judge on that occasion, Muecke DCJ, imposed a total head sentence of 18 months imprisonment and fixed a non-parole period of 12 months.
This Court has an inherent jurisdiction to amend the Record of Proceedings to reflect the sentence imposed by the Judge at the time of sentencing. In Williams,[32] this Court ordered that a Court Record be amended to accurately record the sentence imposed by the trial Judge. In the present case, the Record of Proceedings does not accurately reflect the order of the sentencing Judge and that Record should be amended.
[32] R v Williams [2006] SASC 237.
The Reduction for Totality
As noted above, the Judge made a reduction of one year and four months on account of totality and time spent in custody. However, the Judge did not indicate the way in which the discrete sentences imposed for the separate offending should be adjusted. Such an adjustment is necessary so that the individual sentences are ascertained and recorded. This was clearly reflected in the decision of this Court in Becker:[33]
... [A]s the judge had decided to separately sentence the appellant in respect of the two groups of offences, the application of the totality principle should have been reflected in a reduction to one or both of the separate sentences imposed.
However, the Court in Becker then made the following pertinent remarks:[34]
In the final step of this process, the judge erred. However, this may not have led to any excessive sentence. In making the total reduction of one and a half years, it was open to the judge, for example, to have made a reduction of nine months in respect of each of the two separate sentences. In this way he could give proper effect to the principle of totality.
Although the judge could have used s 18A to impose the one sentence for all offending, it is to be borne in mind that there was a considerable effluxion of time between the two groups of offending. In that circumstance, the course followed by the judge of dealing separately with the two groups of offending was open to him.
While the approach adopted by the judge did not accord with his statutory powers, it does not follow that there has been a miscarriage of justice. A reduction made on account of totality of 18 months was a merciful reduction. The error lay in the manner in which the judge effected the reduction.
[33] R v Becker (2005) 91 SASR 498, [58].
[34] R v Becker (2005) 91 SASR 498, [59]-[61].

In the present proceeding, as noted above, the total term of imprisonment of 13 years and eight months imposed by the Judge was not manifestly excessive and should be confirmed.
It is necessary, however, to adjust the Record of Proceedings to reflect an appropriate allocation of the reduction on account of the principal of totality and time spent in custody to the particular sentences imposed on the defendant. In my view, this adjustment may appropriately be reflected in the following manner. The sentence imposed in respect of the offence of trafficking in a controlled drug should be reduced from a term of five years to a term of four years. The sentence imposed in respect of the three counts of unlawful sexual intercourse should be reduced from a term of seven years and four months to a term of seven years and two months. The sentence imposed in respect of the offence of aggravated possession of child pornography should be reduced from two years and four months to a term of two years and two months.
Conclusion
The appeal should be allowed. The total period to be served in prison as determined by the sentencing Judge of 13 years and eight months for the present offending is confirmed. However, the individual sentences leading to that total term are set aside and, in lieu, the following sentences are imposed:
-The defendant is sentenced to a term of imprisonment of four years in respect of the offence of trafficking in a controlled drug;
-The defendant is sentenced to the one term of imprisonment of seven years and two months in respect of the three offences of unlawful sexual intercourse with a child under the age of 14 years;
-The defendant is sentenced to a term of imprisonment of two years and two months in respect of the offence of possession of aggravated child pornography;
-The defendant is sentenced to a term of imprisonment of four months in respect of the offence of possession of a prohibited weapon and the offence of possession of a dangerous article;
-The defendant is convicted of the offence of failing to store ammunition separately from firearms but no further penalty is imposed.
Each of the above sentences are to be served cumulatively on each other and on the sentence of 18 months imprisonment imposed by Muecke DCJ on 20 September 2012.
The extended non-parole period of nine years and six months fixed by the Judge is confirmed. The non-parole period is taken to have commenced on 18 May 2012.
DAVID J: I would dismiss the appeal. I agree with the reasons of Gray J and the orders he proposes.
NICHOLSON J: I would dismiss the appeal. I agree with the reasons of Gray J and the orders he proposes.