R v HUGHEY - [2008] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHEY
[2008] SASC 263
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
3 October 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant appealed against sentence imposed in the District Court - sentence made cumulative upon a sentence of imprisonment which appellant was already serving for earlier offending - appellant conceded each sentence, considered separately, was not manifestly excessive - whether the sentence imposed for the later offending should have been reduced by application of the totality principle - sentencing judge reduced sentence for later offending to give credit for time spent in custody on those matters - DPP conceded sentencing judge miscalculated reduction for time spent in custody.
Held: In the circumstances the imposition of the cumulative sentence did not offend against the principle of totality - appeal allowed for the limited purpose of correcting the conceded miscalculation by reducing the head sentence by 10 days - appeal otherwise dismissed.
Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517; R v Rossi (1988) 142 LSJS 451; R v Holder [1983] 3 NSWLR 245; R v Bruce & Hollick (1998) 71 SASR 536, considered.

R v HUGHEY
[2008] SASC 263
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: The appellant has appealed against a sentence imposed in the District Court. The sentence was made cumulative upon a sentence of imprisonment which the appellant was then serving. The principal issue raised on appeal is whether the sentence imposed should have been reduced by applying the principle of totality.
It is convenient to commence the summary of the relevant circumstances by referring to the earlier offending and the penalty imposed in relation to it.
The appellant appeared before the District Court charged with two counts of aggravated serious criminal trespass in a non-residential building, a count of serious criminal trespass in a non-residential building and a count of possessing implements of house breaking. He pleaded guilty to the offences and was sentenced to a single sentence of imprisonment for three years, four months and sixteen days. A non-parole period of two years and one month was imposed.
The Director of Public Prosecutions appealed against the sentence and, for reasons which are not relevant to the present appeal, the appeal was allowed, the sentence set aside and the appellant re-sentenced to a single sentence of imprisonment for three years, seven months and sixteen days with a non-parole period of two years and one month. It was ordered that the sentence and non‑parole period commence on 23 October 2007.
The sentence the subject of the present appeal relates to an offence of aggravated serious criminal trespass in a non-residential building, committed on 1 February 2007, and the theft of the sum of $7,500 committed on the same occasion. The appellant pleaded not guilty to these offences, but was found guilty by verdicts of a jury. He was sentenced to a single sentence of imprisonment for four years, three months and seventeen days to commence at the expiration of the sentence for the previous offending. This resulted in a total head sentence of imprisonment for seven years, ten months and thirty three days to date from 23 October 2007. The sentencing judge reviewed the non-parole period and extended it to imprisonment for five years, to commence on 23 October 2007. The sentencing judge intended to give full credit for a period of eight months and twenty three days for time spent in custody on these matters.
It is conceded by counsel for the Director of Public Prosecutions that there was a miscalculation in relation to the time the appellant was in custody prior to being sentenced. The appellant’s sentence should have been reduced by a further ten days. I return to this aspect later in these reasons.
It was conceded by counsel for the appellant that the two sentences, considered individually, were not manifestly excessive. However, it was argued that the total effect of the sentences, consequent upon the order that the second sentence be served cumulatively upon the first sentence, was such as to require a reduction by the application of the principle of totality.
The earlier offending
The first offence took place on 18 February 2006. The appellant and another offender broke into a camera store at Westfield Marion by cutting holes in the roof of the premises. Security staff arrived at the shop while the offenders were inside. The offenders escaped through the roof. They were later charged with aggravated serious criminal trespass.
Later, some time during the night of Sunday 5 March 2006 or early the next morning, the appellant broke into a store in Rundle Mall and damaged property. For this he was charged with serious criminal trespass.
Then, on 6 March 2006, the appellant and another offender were detected in another shop on Rundle Mall. They were each in possession of house breaking implements. This episode resulted in the charges of aggravated serious criminal trespass and possession of house breaking implements. The appellant and the other offender were taken into custody by the police when they were apprehended committing this offence. The appellant was later granted home detention bail for the March offences and simple bail in relation to the 18 February incident.
The later offending
The next episode of offending took place while the appellant was on bail in relation to the above matters. On 1 February 2007 he and another offender broke into a fish and chip shop at Plympton. They were wearing balaclavas and they broke into the shop using a sledgehammer and a crowbar. They removed a safe from the premises and stole the sum of approximately $7,500 which was in the safe. This conduct resulted in charges of aggravated serious criminal trespass in a non-residential building and theft.
The totality principle
The totality principle may be applied where separate sentences have been passed by different courts and one court orders that a subsequent sentence is to be served at the conclusion of an existing sentence, where the relevant offences are closely related in time and character.[1]
The principle applies to both the head sentence and the non-parole period.[2]
[1] Mill v The Queen (1988) 166 CLR 59 at 64; R v Todd [1982] 2 NSWLR 517 at 519
[2] Mill at 66
The circumstance which is said to require the application of the totality principle in the present case is reflected in the statement of King CJ in R v Rossi[3] where His Honour said:
These crimes were unrelated crimes, each involving its own distinct criminality and each deserving of the sentences which were passed by the learned sentencing judge for them. It is, therefore, not surprising that the learned sentencing judge made the order that the sentences be cumulative upon one another. This Court has often said that offenders cannot expect a discount for quantity, and it is not to be thought that an offender who continues to offend is to be punished less severely for the subsequent offences.
There can be no complaint, therefore, to my mind, in principle about the judge’s decision to make the sentences cumulative. The problem in the case is that the result of the three cumulative sentences for the offences of armed robbery in addition to the unexpired portion of the previous sentence, is that the head sentence becomes a very long head sentence, almost 30 years, so long indeed as to be properly characterised as a crushing head sentence.
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
[3] (1988) 142 LSJS 451 at 453
In R v Holder[4] Street CJ said:
The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.
[4] [1983] 3 NSWLR 245 at 260
In some cases, such as where a large number of offences have been committed, the ordering of cumulative sentences is plainly appropriate. However, in a case such as the present, the observations of Doyle CJ in R v Bruce & Hollick[5] are apposite. In that case, after stating the nature of the totality principle, His Honour said:
On the other hand, one has to be careful not to simply take a "bulk discount" approach. People who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise.[6]
[5] (1998) 71 SASR 536
[6] Ibid at 541
Conclusion
The earlier offending consisted of two counts of aggravated serious criminal trespass, one count of serious criminal trespass and one count of possessing house breaking implements. The starting point for the sentence after the reduction for the pleas of guilty was imprisonment for four years. This was then reduced further because of the time spent in custody and on home detention.
It is clear that the principle of totality, although not mentioned by the judge who sentenced the appellant for the earlier offending, must have been applied to reduce the total sentence for that offending to a moderate penalty, bearing in mind the number and seriousness of these offences.
Undaunted by the fact that he had been arrested on the above offences and was on home detention bail, the appellant committed what was a planned and serious offence involving the removal of the safe and its contents from the shop at Plympton.
The offences which constituted both the earlier and later sets of offending were serious. They involved a significant amount of property and caused extensive damage to premises and, in some instances, large losses to the business owners involved. The fact that the appellant committed the offences while on bail in relation to other offences is an aggravating feature.
The appellant has a lengthy criminal history. The sentencing judge who sentenced him for the earlier offending stated that he had been sentenced to seven suspended prison terms in the past. On 30 August 2005 he was sentenced to imprisonment for twenty months with a non-parole period of eight months for offences which included unlawful possession, being unlawfully on premises, non-aggravated serious criminal trespass and dishonestly taking property without the owner’s consent. The sentence was suspended, as was a further sentence of imprisonment for three months for an offence of non-aggravated serious criminal trespass which was imposed on 13 December 2005.
In my view the imposition of the cumulative sentence of imprisonment for four years, three months and seventeen days did not offend against the principle of totality. I consider it gave sufficient acknowledgement to the totality of the criminal behaviour and the need for general and personal deterrence without resulting in a crushing sentence.
I would allow the appeal for the limited purpose of correcting the conceded miscalculation by reducing the head sentence by 10 days. This would result in a head sentence of imprisonment for four years, three months and seven days to be served at the expiration of the sentence imposed by the Court of Criminal Appeal in respect of the previous matters. I would make a corresponding reduction in the non‑parole period for the combined sentence reducing it to four years, eleven months and twenty days.
Otherwise I would dismiss the appeal.
VANSTONE J: I agree with the orders proposed by Duggan J and with the reasons he has provided.
DAVID J: I would dismiss the appeal, except for the limited purpose of correcting the miscalculation by reducing the head sentence and non‑parole period by ten days. I agree with the reasons of Duggan J.