R v Humby - [2004] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMBY; POLICE v HUMBY
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
12 November 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES
SERIOUS CRIMINAL TRESPASS IN A PLACE OF RESIDENCE
The DPP sought leave to appeal against a sentence of 2 years and 11 months imprisonment with a non-parole period of 18 months imposed on the respondent following his plea of guilty in the District Court to charges of aggravated serious criminal trespass in a place of residence and robbery in company - the respondent and another man made a violent forced entry into a house in an isolated area of the countryside where the occupants, two elderly men, were asleep - they confined the occupants to chairs, and over a period of about two and a half hours ransacked the house of cash, electrical items and valuables worth in excess of $5,000 - they made off after tying the victims to the chairs and making further threats to them - the respondent was a man of 31 years of age with a long history of prior convictions - held that the sentence fell so far short of a proper punishment as to justify the grant of leave to appeal to the DPP - consideration of sentencing principles applicable in cases of multiple offending - leave granted and appeal allowed - after allowing for a separate appeal from the Magistrates Court heard concurrently, a single sentence of 9 years and 4 calendar months imprisonment was substituted, with a non-parole period of 7 years.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Delphin (2001) 79 SASR 429; R v Staker [2001] SASC 266 (unreported); R v Siozios [2004] SASC 299 (unreported); Dinsdale v The Queen (2000) 202 CLR 321; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; R v Elliott (2001) 121 A Crim R 254; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Jason (2002) 36 MVR 474; R v P (2003) 87 SASR 287; R v Nylander (2003) 228 LSJ 28; R v Power [2003] SASC 288; R v Johnson (2004) 78 ALJR 616, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
POWER OF THE MAGISTRATES COURT TO ORDER EARLY RELEASE ON A BOND
The Police appealed against the sentence imposed upon the respondent in the Magistrates Court following his plea of guilty to a number of charges of non-aggravated serious criminal trespass, larceny and false pretences - the sentencing magistrate imposed a single sentence of imprisonment of 18 months with a non-parole period of 10 months, and ordered that the respondent be released on a 12 months good behaviour bond after serving 2 months, the balance of the sentence being suspended upon his entry into the bond - held that the sentence exceeded the powers of the sentencing magistrate in that power to order early release on a bond can only be exercised in a case where a sentence of imprisonment of more than 3 months but less than 1 years is imposed - appeal allowed and custodial sentence of 16 months imprisonment substituted.
Criminal Law (Sentencing) Act 1988 s 38(2a), referred to.

R v HUMBY; POLICE v HUMBY
[2004] SASC 358
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. This is an application by the Crown for leave to appeal against the sentence imposed upon the respondent following his plea of guilty in the District Court to charges of aggravated serious criminal trespass in a place of residence, and robbery in company. Both offences were committed on the same occasion, on 18 August 2002.
The appellant was sentenced on 11 May 2004.
The sentencing judge fixed a single penalty, namely a head sentence of 2 years and 11 months with a non-parole period of 18 months, both to commence from 26 February 2004. That date was the day after the non-parole period expired with respect to an earlier sentence of imprisonment which had been imposed in the Magistrates Court on 15 October 2002.
Leave is sought on the ground that the sentence is manifestly inadequate in that:
“a.the sentence fails to adequately reflect the criminality of the offending.
b.the sentence fails to maintain appropriate sentencing standards for offences of this nature.
c.the sentence fails to adequately reflect deterrent elements of sentencing.
d.the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience.”
During the course of the hearing of the application for leave to appeal, the Court agreed to consider, in conjunction with the application, an appeal by the Police from a sentence imposed upon the respondent in the Magistrates Court on 2 February 2002. That appeal was referred to the Full Court by an order made on 31 August 2004 pursuant to s 40(3) of the Magistrates Court Act 1991.
These reasons deal with both the application by the Crown for leave to appeal from the sentence imposed in the District Court, and the appeal from the Magistrates Court.
Circumstances of the offences
At about 6.30 am on the morning of 18 August 2002, the victims, two elderly men both aged about 76 years, who were asleep in bed in their house at Inglewood, were awoken by the sound of smashing glass.
One of the men went down the hallway to investigate, and saw the respondent and the other man who had entered the premises. They were wearing masks and handkerchiefs over their faces. They each carried a Stilson wrench, which they held above their heads in a threatening manner. They had effected an entry to the premises by smashing through a glass panel in the rear door.
Both victims were escorted to the dining room, where they were made to sit on chairs. The intruders demanded to know where the money was, and proceeded to ransack the house.
This went on over about 2½ hours, during which time they gathered up various items of property and money, which they loaded into a car. In all, they stole a number of electrical items, two coin collections, about $590 in cash and other items, amounting to a total value estimated by the victims, at $5,387.55.
Before leaving the premises, they tied both victims to their chairs, using duct tape which they had found in the house. They threatened the victims that if they rang the police within half an hour, they would return and shoot them, and run a car through the house.
The respondent was apprehended on 27 September 2002 after the investigating police identified fingerprints found on some items in the house, as belonging to him. After his arrest, on legal advice, he declined to answer any questions.
The only property recovered was a video camera.
One of the victims stated in his victim impact statement that he had suffered a mild heart attack as a result of the stress occasioned during the robbery, and spent four days in Modbury Hospital. Not surprisingly, both victims suffered a good deal of distress at the loss of their possessions. They now have difficulty sleeping, and do not feel safe in their house.
The Magistrates Appeal
On 2 February 2002 in the Magistrates Court sitting at Adelaide, the respondent was convicted on his plea of guilty to a number of charges of non-aggravated serious criminal trespass, larceny and false pretences.
The charges were prosecuted by way of two informations and a complaint.
The first information[1] alleged 10 counts of offences committed between 11 September 2001 and 9 October 2001. The first count was not proceeded with.
[1] AMC-02-1358.
The nine remaining offences were committed at Wallaroo or near Kadina. There were two counts of entering a non-residential building as a trespasser with the intention of committing a larceny; two counts of entering a place of residence as a trespasser with the intention of committing a larceny; and five counts of larceny.
The total value of the property taken was $6,100.
The complaint[2] comprised two counts. Both alleged that the respondent obtained money with intent to defraud, by conducting a financial transaction that he did not have authority to conduct. These offences, which were committed on 6 June and 7 July 2001, related to items which the respondent unlawfully pawned.
[2] AMC-02-1361.
The second information[3] alleged one count of entering a place of residence as a trespasser with the intention of committing a larceny, and the theft of a quantity of household items, including antiques, together of the value of approximately $10,000. Both offences were committed on 1 September 2001.
[3] AMC-02-1362.
The sentencing magistrate imposed a single sentence for all of the offending, namely, a sentence of imprisonment for 18 months with a non-parole period of 10 months.
The sentencing magistrate ordered that the respondent be released on a 12 months good behaviour bond after serving two months, the balance of the sentence being suspended upon his entry into the bond.
During the course of the hearing of the application for leave to appeal, when the Court’s attention was drawn to the terms of that sentence, it was apparent that it was pronounced irregularly, in that it exceeded the powers of the sentencing magistrate.
The power to order early release on a suspended sentence following the imposition of a period of imprisonment is conferred by s 38(2a) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). Pursuant to that section, if the period of imprisonment which a defendant is liable to serve is more than three months but less than one year, the sentencing court may direct that the defendant serve a specified period of not less than one month in prison, and suspend the remainder of the sentence, on condition that the defendant enter into a good behaviour bond of the kind described in s 38(1), to take effect on the defendant’s release from prison.
Given that the sentencing magistrate purported to impose a sentence of imprisonment of 18 months, the power to order early release on a bond pursuant to s 38(2a), was not an available sentencing option.
It follows that the sentence was a nullity.
After this difficulty was identified, the Court adjourned the hearing to enable a notice of appeal to be lodged against the sentence. A notice of appeal by the police was duly filed, and, as I have said, it was referred to this Court for hearing and determination, to be heard together with the Crown application for leave to appeal from the District Court sentence.
On the resumption of the hearing, Ms O’Connor, who appeared for the respondent, did not oppose an extension of time for the institution of the appeal from the Magistrate’s Court, which was duly granted.
In the result, the hearing then proceeded as a joint hearing of the application for leave to appeal from the District Court sentence, and the Magistrates Court appeal.
Respondent’s background
At the time he was sentenced in the District Court, the respondent was 31 years of age.
When he was fourteen he absconded from home and began living on the street and in squats. He took to drugs and alcohol. In the course of time, between 1985 and 2002, he accumulated a long history of offending, including convictions for larceny, breaking and entering, assault, and possession and use of cannabis.
The sentencing judge had the benefit of a psychological report furnished by Dr Balfour, from which it is clear that the respondent comes from a dysfunctional family background. His father was a violent alcoholic and his parents separated when he was ten years old.
Mr Balfour concludes that the respondent is a man of low average intelligence, with poor literacy and numeracy skills. He is prone to depression, and once attempted suicide. He has a history of drug and alcohol abuse problems.
At the time of the offences, he was addicted to amphetamine. The need for money to feed his addiction has obviously played a large part in causing him to offend.
The Application for Leave to Appeal from the District Court Sentence
The maximum penalty for both aggravated serious criminal trespass in a place of residence and for robbery in company is life imprisonment.[4]
[4] Criminal Law Consolidation Act 1935, s 170(2) and s 158(b). Section 158(b) was repealed by Act No 26 of 2002, the repeal being effective from 5 July 2003, which was about a year after the offence in question was committed.
There were a number of features which, in my view, put both offences at the higher end of the scale of seriousness.
The respondent and the co-offender made a violent entry into the premises, which were on an isolated property in the Hills, at a time when both the elderly victims were asleep in the house.
The offenders were armed with wrenches, with which they menaced the victims, whom they proceeded to immobilise by confining them to chairs, eventually fastening them to the chairs with tape.
The ransacking of the house went on for a lengthy period of about two and a half hours, during which time they stripped the house of whatever was apparently of value and able to be carried away.
They made serious threats to the victims before making off in their car.
The respondent committed the offences only four months after he was released from custody on the 12 months good behaviour bond to which I have referred. This circumstance must be regarded as a circumstance of aggravation, notwithstanding the fact that the bond was imposed as part of a sentencing package which was beyond the power of the sentencing magistrate.
As I have said, one of the victims suffered a mild heart attack, which required hospitalisation.
The victim impact statements indicate that both victims remain distressed and apprehensive, and have taken various measures, such as the installation of a duress alarm and grilles to their windows, in order to improve their security.
The respondent and the co-offender told one of the victims that they had been “watching” them. It follows that the offences were premeditated. The victims were targeted because of their vulnerability.
Although in his sentencing remarks the sentencing judge stated that the respondent had co-operated with the police, it is hard to see that there was any effective co-operation. The respondent purported to give information as to the identity of the other offender, but neither the fingerprints nor the DNA for that person, was confirmed by the forensic procedures.
The respondent, albeit on legal advice, following his arrest, declined to give a statement to the police.
It is doubtful that he would have been apprehended at all had it not been for the discovery of his fingerprints in the premises.
The sentencing judge accepted that the respondent was “genuinely remorseful”.
He intimated in his sentencing remarks that he would have fixed a sentence of four years imprisonment on all counts, but that in light of the plea of guilty and “other matters”, he reduced that to three years. He gave further credit for one month already spent in custody, with the result that the head sentence became 2 years and 11 months, against which he set the non-parole period of 18 months.
There is no tariff for aggravated serious criminal trespass. This is because the offence may be committed in a wide variety of circumstances of differing levels of seriousness. The gravity of the particular offence falls to be measured against the circumstances in which it is committed, which will include the number and nature of any aggravating features.[5]
[5] See R v Delphin (2001) 79 SASR 429 at [49] and R v Staker (unreported) [2001] SASC 266 at [22].
When an offender is charged with both aggravated serious criminal trespass and a separate offence committed after entering the premises, as I pointed out in R v Siozios,[6] it is important to recognise that the offender must be sentenced for the two offences, and the penalty must reflect an adequate punishment for both.
[6] (Unreported) [2004] SASC 299.
The fact that recourse may be had to s 18A of the Sentencing Act for the purposes of imposing a single sentence, should not be allowed to obscure the importance of that consideration.
In Siozios, the defendant entered a unit within a group of aged-care units and proceeded to commit two violent rapes on the occupier, an elderly woman.
On appeal, the Court of Criminal Appeal, by a majority,[7] fixed a notional starting point for the offence of aggravated serious criminal trespass, of 3 years imprisonment.
[7] Perry J, with whom Doyle CJ agreed.
For the rapes, the court took a notional starting point of 10 years imprisonment, giving a total of 13 years, which was reduced on account of the plea of guilty, to a head sentence of 11 years.
In that case, although the rapes were accompanied by a high level of violence, the defendant’s actual entry into the premises was non-violent in the sense that it was effected when the occupier opened the door to him.
That is in contrast with the violent entry in this case, given that the offenders broke through the glass of the rear door while armed with weapons, and with cloths masking their faces.
Section 170(2) of the CLCA identifies three different circumstances which may operate to convert a serious criminal trespass in a place of residence into an “aggravated offence”. They are as follows:
“170…..
(2) A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if-
(a)the person has, when committing the trespass, an offensive weapon in his or her possession; or
(b)the person commits the trespass in company with one or more other persons; or
(c)another person is lawfully present in the place and the person knows of the other’s presence or is reckless about whether anyone is in the place.”
The circumstances of aggravation, as particularised on the information, were that the respondent had in his possession offensive weapons, namely, wrenches; that he was in company; and that other persons were lawfully present in the place and the respondent knew of the other persons’ presence, or was reckless as to whether anyone was in the house or not.
Those circumstances of aggravation are all of the matters which may, pursuant to s 170(2), convert a serious criminal trespass into an aggravated offence.
It follows that the offence of aggravated serious criminal trespass in a place of residence committed by the respondent, was a particularly serious offence of its kind, which called for a substantial sentence of imprisonment.
As will be seen, I am of the view that the sentence under appeal as to both offences, falls so far short of an appropriate penalty, as to justify intervention by this Court on appeal by the Crown.
In the case of a Crown appeal, it is necessary that any increased sentence which may be substituted by this Court be “at the lower end of the range of available sentences”.[8]
[8] Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 341.
Bearing that in mind, and having regard to the matters to which I have referred, I would fix a notional starting point for that offence in this case, of 5 years.
The offence of robbery in company was equally serious. I have already referred to the circumstances of this offence.
Regard should also be had to s 10(1)(ea) and s 10(2) of the Sentencing Act which are as follows:
“10.(1) A court in determining sentence for an offence should have regard to such of the following matters as are relevant and known to the court:
(a)…..
(ea)in the case of an offence committed by an intruder in the home of another - the need to give proper effect to the policy stated in subsection (2);
(2)A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.”

In my view, an appropriate notional starting point for the offence of robbery in company in this case would be 6 years.
Taking the two offences together, this would give a starting point of 11 years.
This is not a case where the respondent is entitled to a substantial discount for his plea of guilty.
When he was first arraigned in the District Court on 7 April 2003, he pleaded not guilty to both counts. He was remanded for trial. There were directions hearing in May and June 2003. It was not until late December 2003, when he was re-arraigned, that he pleaded guilty.
Given the lateness of the plea, the discount of 25 per cent afforded on this score by the sentencing judge was overly generous.
By reason of the late plea of guilty, I would reduce the notional starting point of 11 years imprisonment to 9 years.
That much said, should the application for leave be granted?
This being an application for leave to appeal, the fact that I would impose a more severe sentence than that under appeal, does not necessarily mean that leave should be given. As it was put by the Chief Justice in R v Nemer:[9]
“The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal with a view to increasing a sentence merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentence seen for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). … Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low.”
[9] (2003) 87 SASR 168 at 172 [24].
Here, however, it seems to me that the difference is so great between what I would consider to be an appropriate penalty, and the sentence under appeal, that if the sentence was to be left uncorrected “it would fail to maintain an adequate sentencing standard for offending of this kind”.[10]
[10] R v Siozios (supra) per Perry J at [22].
It is, however, no longer appropriate to apply in this context, a test expressed in terms that interference will be justified if “the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience” (ground of appeal 3d).
In Siozios (supra), I said:[11]
“[20] In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression “shock the public conscience”[12] by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[21]I think that it is better to adopt as the appropriate principle which should inform the Court in the exercise of its discretion to grant leave to appeal to the Crown, the formulation which finds expression in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen,[13] namely, that the Crown should be given leave to appeal against sentence “only in the rare and exceptional case”, which would ordinarily confine intervention by the Court of Criminal Appeal to cases where it is necessary to avoid “the kind of manifest inadequacy or inconsistency in sentencing standards” which might properly be described as constituting “error in point of principle.[14]”
[11] Ibid par [20] (Doyle CJ concurred).
[12] R v Osenkowski (1982) 30 SASR 212 per King CJ at 213.
[13] (1994) 181 CLR 295 at 299-300.
[14] Griffiths v The Queen (1977) 137 CLR 293 per Barwick CJ at 310, referred to with approval in Everett (supra) at 300.
I would give leave to the Crown to appeal against the sentences imposed in the District Court.
The final form of the order and just what sentence should be substituted, should be considered after dealing with the magistrates appeal.
The Magistrates Appeal
This can be disposed of shortly.
The sentencing magistrate introduced his sentencing remarks with the following comment:
“1.Mr Humby, you have pleaded guilty to a lot of offences, to some twelve offences of dishonesty and allied breakings and trespassing on other people’s property in the second half of last year and, quite frankly, you have been a serial nuisance and pest at Kadina and the surrounding areas and I must say that I suspect that the citizens of Kadina rather hope that today I will give you a very long period of gaol time.”
He went on to refer to the fact that the respondent had admitted to his methadone addiction, and that he seemed to be “getting that under control”.
He added that he had “some confidence as a result of the pre-sentence report” which he had received. He concluded:
“There must be some further period in custody just because of the number of offences. I am quite prepared to suspend the balance of the sentence that I must impose.”
The sentence ultimately imposed was not only erroneous in point of principle, but also gave expression to a degree of confidence in the respondent’s prospects of rehabilitation which was not borne out by subsequent events.
After serving two months imprisonment, he was released on a bond on 2 April 2002, following which the aggravated serious criminal trespass and robbery were committed on 18 August 2002; little more than four months later.
In those circumstances, it seems to me that with the benefit of hindsight, the respondent did not deserve to have the benefit of a suspended sentence.
There has been no criticism by either counsel as to the length of the gaol term in fact imposed for that offending, although Ms O’Connor of counsel for the respondent suggested that if this Court was minded to re-sentence the respondent, the overall offending, including that the subject of the magistrate’s appeal and the time spent in custody as a result of the sentence imposed in the Magistrates Court in October 2003, should all be taken into account.
Whatever allowance is proper by reference to the totality of the offending, can be given when the principle of totality is applied at the end of the sentencing process.
I would allow the appeal by the police and quash the sentence which was then imposed.
The respondent has served two months out of the 18 months sentence imposed on 2 February 2002.
This leaves 16 months unserved.
I would substitute for the sentence under appeal, a sentence of 16 months imprisonment.
In the events which have happened, no ground can be demonstrated which would support suspension of that sentence.
Exercising the power conferred by s 18A of the Sentencing Act, I would accumulate that sentence with what I consider to be the appropriate sentence to be substituted on the appeal from the District Court, and express the accumulation as a single sentence. I would allow some moderation of the aggregate sentence, by reference to the principle of totality.
Conclusion
The total of a substituted sentence on the District Court appeal of 9 years, and a substituted sentence of 16 months on the magistrate’s appeal, would give a total head sentence of 10 years and 4 months.
Some reduction from that amount should be made by reference to the principle of totality.
Since dictating the above, I have perused the reasons for judgment of Gray J. He suggests the substitution of a head sentence of 9 years and 4 months.
In the circumstances, and allowing for a reduction by reference to the principle of totality on the figure which I have suggested, I would agree that a head sentence of that order should be substituted.
I agree also that it is appropriate to fix a non-parole period of 7 years.
I would order:
1.That the application for leave to appeal from the District Court sentence be granted.
2.That the appeal from the District Court sentence be allowed, and the sentence under appeal quashed.,
3.That the Magistrates Court appeal be allowed, and the sentence under appeal quashed.
4.That there be substituted for both sentences, a single sentence of imprisonment of 9 years and 4 calendar months.
5.That a non-parole period be fixed of 7 years.
6.That the head sentence and the non-parole period commence from 26 February 2004.
NYLAND J: I have had the advantage of reading the reasons of both Perry J and Gray J. In my opinion, the circumstances of this case make it appropriate to treat the offending as one course of conduct for sentencing purposes. I therefore agree with the reasons expressed by Gray J as discussed in Elliott[15]. In view of the serious nature of this offending I agree that leave should be granted to the Crown to appeal against the sentence imposed in the District Court. I agree with the sentence proposed by Gray J.
GRAY J
[15] (2001) 121 A Crim R 254
Introduction
On 11 May 2004 the respondent Keith Humby was sentenced by a District Court judge following pleas of guilty to charges of aggravated serious criminal trespass in a place of residence and robbery in company.
The sentencing judge imposed the one penalty for the respondent’s offending: a head sentence of two years and 11 months. A non parole period of 18 months was fixed. The judge directed that both the head sentence and the non parole period commence on 26 February 2004 being the date on which the respondent had been taken into custody in respect of this offending.
The Director of Public Prosecutions has sought leave to appeal against the sentence on the grounds that the sentence:
-failed to adequately reflect the criminality of the offending;
-failed to maintain appropriate sentencing standards for offences of this nature;
-failed to adequately reflect deterrent elements of sentencing;
-is so disproportionate to the seriousness of the crime as to shock the public conscience.
The Magistrates Appeal
During the course of this hearing the court’s attention was drawn to the terms of an earlier suspended sentence of imprisonment imposed by a magistrate. As the respondent’s conduct, the subject of the District Court’s sentence, involved a breach of the bond entered into before the magistrate as a condition of the suspension of the sentence, it was necessary for this court to address that sentence. It became evident that a jurisdictional irregularity had occurred on the part of the magistrate. He imposed a sentence that was beyond power. As a result the Crown sought an extension of time to appeal against the order of the magistrate.
Counsel for the respondent accepted that jurisdictional error had occurred and that it would be necessary for this court to re-sentence the respondent in respect of the offending, the subject of the Magistrate’s Court proceedings. An extension of time was granted.
I agree with the reasons of Perry J with respect to the disposition of the magistrates appeal. Having regard to the time spent in custody the appropriate resentence in respect of that offending is an order of imprisonment for 16 months. I agree that it is inappropriate to suspend that sentence.
The District Court Sentence
The principles upon which leave is granted for a prosecution appeal against sentence are well established. In Everett[16] the High Court considered that a grant of leave to the prosecution to appeal against sentence should be limited to the rare and exceptional case. The majority of the court in Everett held that when considering a grant of leave, the court should be guided by the observations of Barwick CJ in Griffiths[17]. Those observations were to the effect that leave ought not to be granted simply because an appellate court considered the sentence inadequate. The inadequacy must be of such a kind as to indicate error or departure from principle, or a gross departure from the standards of sentence appropriate for offences of the kind in question.
[16] (1994) 181 CLR 295 at 299 – 230
[17] (1977) 137 CLR 293 at 310
In this court, it has been held that the proper role for prosecution appeals is to enable the court to establish and maintain adequate standards of punishment for crimes, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[18] In Nemer[19] Doyle CJ confirmed that the court should not grant leave to appeal to the prosecution merely with a view to correcting a sentence which is too low. However, if a sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will arise.
[18] Osenkowski (1982) 30 SASR 212
[19] (2003) 87 SASR 168 at 172
The respondent’s offending was very serious. Perry J has set out the detailed facts and circumstances of the offending. Those facts and circumstances are only referred to where necessary for an understanding of these reasons.
It is apparent that the respondent and his co-offender set out on a planned course of criminal conduct. That conduct involved the entry of a private residence in an isolated area in the early morning. The elderly occupants were asleep. The respondent and his co-offender intended to frighten the occupants into submission and to that end they armed themselves with weapons, before entering. Their intended purpose was to rob the occupants.
The occupants were threatened with wrenches and tied to chairs. The premises were ransacked and property stolen. As Perry J has observed one of the occupants suffered a heart attack.
At the time the respondent was on parole following his release from custody following the serving of a term of imprisonment.
The sentence imposed by the District Court judge was manifestly inadequate. The inadequacy was of such a kind as to indicate gross departure from the standards of sentencing appropriate to address the respondent’s criminal culpability. The sentence was so disproportionate to the seriousness of the crime as to undermine the public confidence in the administration of justice. The sentence failed to adequately reflect the respondent’s criminality and failed to adequately reflect the necessary deterrent elements of sentencing. The sentence failed to maintain appropriate sentencing standards for offending of this type.
The respondent engaged in an ongoing course of conduct that called for the imposition of the one penalty pursuant to the provisions of section 18A of the Criminal Law Sentencing Act 1998 (SA).
The approach to be taken to offending forming part of a course of conduct has been the subject of much judicial comment. The need for the fixing of notional separate sentences for each individual offence followed by a consideration of issues of concurrency on accumulation was discussed in Major.[20] However it was made clear in Symonds[21] that such an approach was not mandatory. Doyle CJ observed:
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[20] (1998) 70 SASR 488
[21] [1999] SASC 217 at [21]-[22]
In Elliot[22] the need for each particular case to be addressed on its own facts was discussed. The following observations were made:[23]
To adopt the approach outlined in Major in this case would involve considering each offence in isolation before considering the total sentence. The difficulty with such an approach is that each offence cannot sensibly be treated in isolation. Each offence was aggravated by the other offences. To consider any one offence necessarily involves considering all offences. Proper consideration cannot be afforded to any one offence if considered in isolation.
I consider the approach outlined in Major even as modified in Symonds to be of no assistance in this case. It is not appropriate for a ‘one course of conduct’ case or a ‘one transaction’ case or a ‘one multi-faceted course of criminal conduct’ case. This is a case where it is appropriate and convenient ‘to go directly to the single sentence to be imposed.
[22](2001) 121 A Crim R 254, see also Jason (2002) 36 MVR 474, LKK (2003) 231 LSJS 458, P (2003) 87 SASR 287, Nylander (2003) 228 LSJS 24
[23] (2001) 121 A Crim R 254 at 267
More recently, this court has noted the air of unreality that can arise through the separating of offences forming part of the one course of conduct. In Power[24] Sulan J observed:
The approach in this case gives transparency to the manner in which the sentencing judge has approached his task. However, that approach can in some instances be of limited value, particularly in cases where by imposing individual notional penalties, the final penalty arrived at is so high that it creates an air of unreality. The consequence of imposing notional sentences where an offender commits a series of serious offences can result in a head sentence which has little bearing to the final sentence imposed when all the relevant factors, including the principle of totality, are taken into account. If the approach of identifying notional sentences for each offence or group of offences and arriving at an overall head sentence is adopted, then the sentencing judge is required to step back and consider the sentence taking into consideration all relevant matters. That consideration may result in the sentence being substantially reduced because the end result of accumulating the individual sentences leads to a sentence which, given the personal circumstances of the offender, is crushing.
The appellant complains that the sentencing judge was in error in treating each offence separately and accumulating the notional sentences. The question whether sentences should be cumulative or concurrent is determined by considering the circumstances of each case. If the offending forms part of a course of conduct, then it may be appropriate to make the sentences concurrent. However, since the enactment of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) which empowers a sentencing judge to pass one sentence having regard to the totality of the offender’s conduct, the question of whether sentences should be concurrent or cumulative has less relevance. So long as an offender is not penalised twice for the same conduct, the question of whether sentences should be cumulative or concurrent has no material relevance if the final sentence is within the permissible range for the offending. In this case, it cannot be said that the judge was in error in calculating the sentence by accumulating the sentences for each offence.
[24] [2003] SASC 288 at [18]-[19]

When sentencing in respect of aggravated serious criminal trespass in a place of residence and a separate offence committed after entry it is important to ensure that there is no doubling-up of the factors to be taken into account in determining an appropriate sentence. As the offences are closely linked and form part of a course of conduct, it can be difficult to isolate the factors in each offence that determine the gravity of the offending. However, the crime of aggravated serious criminal trespass contains within it the concept of an unlawful entry into premises with an intention to commit a crime whilst on the premises. In these circumstances, it is preferable for the sentencing court to impose a single sentence of imprisonment which adequately reflects the total criminal conduct of the offender.
Much will depend on the facts and the circumstances of the individual case. However, in the present case the respondent engaged in the one course of criminal conduct – the armed entry to private premises for the purposes of robbery. It is this conduct and the overall criminal culpability involved for which the respondent must be sentenced. To divide the conduct when sentencing into separate offences in these particular circumstances creates a risk that the reality of the entire criminal conduct will not be appropriately addressed.
For these reasons it is appropriate to impose the one sentence for the offences of aggravated serious criminal trespass and robbery in company. This allows an assessment to be made of the overall criminal culpability of the respondent. Having regard to the gravity of the offending and the criminal and personal antecedents of the respondent, it is appropriate to impose a head sentence of eight years for this offending. In arriving at this sentence, a reduction of one year has been made on account of the late pleas of guilty. There is no need in the circumstances of this case to make any adjustment in accordance with the principle of totality. [25]
[25] Johnson (2004) 78 ALJR 616 at [18-21]
Conclusion
As earlier observed, I agree with Perry J that the determination of the magistrate’s appeal should result in a head sentence of 16 months imprisonment. This sentence should be served cumulatively on the sentence of eight years imprisonment for the offences the subject of the Director’s application for leave to appeal. This leads to a total period of imprisonment of nine years and four months.
Pursuant to section 18A of the Sentencing Act it is appropriate to impose the one head sentence in respect of all matters of nine years and four months. A non parole period of seven years should be fixed.
The respondent has been in custody on remand with respect to the District Court proceedings since 26 February 2004. The sentence should be backdated to commence from that date in accordance with the provisions of section 30(2) of the Sentencing Act.
I would make the following orders:
-that the Crown be granted leave to appeal from the sentence imposed by the District Court;
-that the appeal from the District Court sentence be allowed;
-       that the sentence imposed by the District Court be set aside;
-       that the Crown appeal against the magistrate’s sentence be allowed;
-       that the sentence imposed by the magistrate be set aside;
-that the respondent be resentenced to the one sentence pursuant to section 18A of the Sentencing Act with respect to all matters;
-that a head sentence of imprisonment of nine years and four months be imposed;
-       that a non parole period of seven years be fixed; and
-that the sentence of nine years and four months and the non parole period of seven years be backdated to commence on 26 February 2004.