R v Jackson No. Sccrm-98-114 Judgment No. S6932

R v JACKSON
1998] SASC 6932

Court of Criminal Appeal: Millhouse, Perry and Nyland JJ

MILLHOUSE J. Appeal against sentence. The appellant pleaded guilty to 40 counts of imposition on the Commonwealth contrary to section 29(B) of the Crimes Act 1914. He was sentenced to imprisonment for three years and nine months with a non parole period of one year and ten months. The sentence backdated to 30 March 1998, the recorded date of conviction. He was also ordered to make reparation to the Commonwealth by way of money payment in the sum of $13,599.59.
The appellant had been charged with and pleaded guilty to 40 counts of imposition on the Commonwealth through avoidance of payment of sales tax. The offences were committed over a period beginning on or about 15 February 1994 and ending on or about 14 July 1995. They came to light in March 1997 as a consequence of the Australian Taxation Office locating computer hardware order forms during the execution of a search warrant on the premises of Edge Computers Pty Ltd in an unrelated investigation.
The appellant had been purchasing computer hardware from Edge Computers Pty Ltd without paying sales tax. He had been falsely representing to Edge Computers Pty Ltd that the purchase of the goods was for and on behalf of Simmetals (SA) Pty Ltd, that Simmetals (SA) Pty Ltd was exempt from the payment of sales tax on such items, and that Simmetals (SA) Pty Ltd held a sales tax exemption number, 501 109 841.
He used forms made out to ‘Jackson Computer Consultants’ and purported to be from ‘Simmetals (SA) Pty Ltd’ for the purchase of specified computer hardware. The name Jackson Computer Consultants is not a registered business name. The exemption number quoted on the order form was not a valid sales tax exemption number. The appellant did not have a sales tax exemption number of his own. The company Simmetals (SA) Pty Ltd does not exist. The company name most similar to that and of an existing company is Simsmetals Ltd.
The tax avoided was $13,599.59.
The appellant has prior offences of dishonesty. He had been convicted of seven counts of receiving, one count on 20 March 1995 and six counts on 23 February 1996. For the offence on 20 March 1995, the appellant was given a bond. The current offences occurred between February 1994 and July 1995. Approximately seven out of the forty counts of imposition were in breach of this bond.
On the 16 May 1997 in the Magistrates Court the appellant was sentenced by Mr Rogers SM to eight months imprisonment with release after serving three months on entering into a two year good behaviour bond. This sentence related to 79 counts of imposition on the Commonwealth. The appellant in a similar manner, falsely represented that he had a valid sales tax exemption number which he quoted to avoid the payment of sales tax on purchases of computer hardware from Westan Pty Ltd. The offences were committed over a period commencing on or about 9 May 1994 and ending on or about 14 July 1995. The tax avoided was $9,599.51.
The appellant argued that the head sentence of Judge Russell of the District Court was over five and half times that imposed by Mr Rogers in the Magistrates Court for similar offences: that the steep increase in the penalties was unjust and unfair and shewed a disparity of sentence giving rise to a ‘sense of grievance and feeling of injustice’. The appellant further argued that the sentencing judge incorrectly considered the Magistrates Court offences as prior offences and erred in not applying the ‘totality principle’ to the sentence.
The respondent argued that the learned judge erred in sentencing, in that he applied a global sentence to the 40 counts rather than giving a separate sentence on each count.
The first ground of appeal I deal with is disparity.
In the Magistrates Court the appellant was sentenced for 79 counts of imposition on the Commonwealth for the Westan offences. These were committed over a 14 month period from 9 May 1994 to 14 July 1995 resulting in $9,579.51 in tax avoidance. For this course of offending the appellant was sentenced to eight months imprisonment with release after serving three months on entering a two year good behaviour bond. A reparation order was also made.
In the District Court the appellant was sentenced for 40 counts of imposition on the Commonwealth for the Edge offences. These were committed over a 17 month period from 15 February 1994 to 14 July 1995 and resulted in $13,599.59 in tax avoidance. For this course of offending the appellant was sentenced to three years and nine months imprisonment with a one year and ten months non parole period. Again a reparation order was made.
The appellant argued that the amount of tax avoided, the period of offending, the course of conduct and criminality of the offending are similar in each case. He points out that the non parole period set by the learned sentencing judge is over seven times that imposed in the Magistrates Court whilst the head sentence is over five and a half times that imposed in the Court below and that this has generated a ‘sense of injustice’ in him.
The respondent argues that the first sentence was inadequate and that it would be inappropriate to perpetuate this inadequacy when imposing a second sentence. Establishing parity in these circumstances may compound the error in a way which would be unacceptable to the public conscience.
In short the respondent argues that the disparity has to be accepted.
The issue of disparity was dealt with by the High Court in Lowe v The Queen [1984] 58 ALJR 414. The disparity was between the sentences of two co-offenders. Gibbs CJ @ 415 said:-
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, ... but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.”

In The Queen v MacGowan [1986] 42 SASR 581, King CJ @ 583 after summarising the principles in Lowe v The Queen sets out when the Court of Criminal Appeal should interfere with disparate sentences:-
“If both sentences are within the maximum authorised by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. ... It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.”
There is little argument that a disparity in sentence does exist here. The question is whether the court should interfere. The respondent argues that the Magistrate’s sentence was so low as to offend the public conscience. The sentence is quite low but not so low as to offend the public conscience. The learned Magistrate took into account the appellant’s plea of guilty, his lack of substantial prior offences and his personal circumstances, including the possibility of rehabilitation and then arrived at a sentence which was at the lower end of the range of sentences for this kind of matter, see: R v Elvin (1997) 91 A Crim R 213 and R v Wright (1994) 74 A Crim R 152.
Equally, the District Court sentence is at the higher end of sentences for this kind of offence but nevertheless within the proper range of sentencing discretion, see: R v Fernandez (1995) 79 A Crim R 444 and R v Thomas (1997) 96 A Crim R 32.
The learned judge in his sentencing remarks:-
“Whilst I accept that the defendant is not to be punished twice for the offences that constituted the information before the learned Magistrate it does, in my view, put the present offending in rather a different light than otherwise might have been the case in that that separate group of offences were being committed at the same time as the present group in respect of a different wholesale outlet.”

Obviously, His Honour felt that the added knowledge of these further offences placed the seriousness of the sentences under consideration on a different level. His Honour refers to the premeditated nature of the offences, that they were wide spread and not limited to one supplier. The learned judge had to include a serious deterrent element in his sentence, detailing that this type of conduct is difficult to detect and becoming more common.
By reason of summary disposition, the maximum penalty available to the special magistrate was 12 months imprisonment on each count compared with the 2 year maximum before the sentencing judge. This may help to explain the disparity in sentence.
I agree with the learned judge that a serious deterrent element needs to be incorporated into the sentence and that the second series of offences does place the first in a ‘different light’. However, it is difficult to accept a sentence which is five or seven times that of another offence identical in character. Furthermore, the first series of offences involved 79 counts while the second only 40, almost double, yet the sentences are disproportionate the other way. The parity principle is well established: ‘when applying the parity principle, like must be compared with like’, see R v Postiglione (unreported, NSW Court of Criminal Appeal, delivered 4 December 1997). Here there are two series of like offences occurring at the same time. Unfortunately, they were not heard together. The head sentence in the District Court is seven times as high and the non-parole period five times as high as in the Magistrates Court.
The question is whether the disparity should give ‘rise to a justifiable sense of grievance’. I find it difficult to be constrained by the Magistrate’s decision for he was unaware of the extent of offending which had in fact occurred. The appellant cannot be justifiably aggrieved as the Magistrate’s sentence was clearly much lower than it ought to have been given the entire course of the appellant’s conduct.
While a disparity does exist, it was justified in all the circumstances and accordingly I suggest the appeal on this ground should fail.
The appellant argues the Edge offences were in fact committed prior to the Westan offences. This means the appellant ought to have been treated as a first offender: that there could be no prior offences taken into account by the sentencing judge.
The Edge offences began on 15 February 1994 while the Westan offences began on 9 May 1994. There was an overlap of offending behaviour between the 9 May 1994 and the 14 July 1995. The Edge offences precede the Westan offences by a period of three months. However, I do not think the later course of offending should be ignored when sentencing for the Edge offences. I agree with the learned judge:
“Having regard to the defendant’s convictions in relation to the similar offences that I have mentioned, I infer that the defendant’s criminal conduct was wide spread and not just limited to one supplier.” ...
“Whilst I accept that the defendant is not to be punished twice for the offences that constituted the information before the learned Magistrate it does, in my view, put the present offending in rather a different light than otherwise might have been the case in that that separate group of offences were being committed at the same time as the present group in respect of a different wholesale outlet.”
The learned judge considers the Westan offences are relevant in providing a context in which the Edge offences were committed. I can see nothing wrong with this approach.
It is of little value to talk of the Westan offences as prior offences when the Edge and Westan offences comprise a single systematic deliberate course of behaviour over a significant time. It is much more appropriate to consider them as part of the same course of conduct. I shall consider this when discussing the totality principle.
In R v Cameron & Simounds (1993) 171 LSJS 305, a case involving crimes of imposition on the Commonwealth for social security fraud King CJ made the following comments (@ 306):
“ In the case of both of these respondents the offending amounted to a systematic, deliberate and sustained fraud over a substantial period of time. The fraud involved planning and sustained implementation. The offenders, it is true, have no other convictions but that is of little significance when one is faced with such a sustained course of conduct of a criminal nature. This was not a case of a person with no prior convictions succumbing to temptation and being entitled, therefore, to rely upon the previous good record to secure the leniency of the court. Both of these offenders not only engaged upon a deliberate course of fraudulent conduct, but persisted in it over a long period of time.”

I agree. The appellant’s course of conduct constitutes a total of 119 counts of imposition, as well as seven counts of receiving, over a lengthy period in a deliberate organised fashion. It is of little significance when considering this conduct, whether there are prior offences or not.
The learned judge by incorporating the Westan offences as part of the history of the Edge offences has appropriately dealt with the Westan offences.
There is nothing in this ground.
The existence of multiple offences in a short time leads to a consideration of the totality principle. The learned judge was obliged to impose a penalty which adequately reflected the total criminal conduct of the appellant, while taking into consideration factors such as rehabilitation and any time already spent in prison for these offences.
In R v Todd [1982] 2 NSWLR 517, the appellant committed a series of offences across State lines. Street CJ in detailing what needed to be considered when sentencing said (@ 519):
“ In the matter of the non-parole period a second sentencing judge must adjust, or give consideration to the adjustment of, the non-parole period in the light of the totality of the criminality involved in both the offences for which the person is currently in custody as well as the charges currently before the court. ... fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, ... that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach ...”

This passage was adopted by this Court in The Queen v Suckling [1983] 33 SASR 133 and later by the High Court in Mill v The Queen (1988) 166 CLR 59. In Mill v The Queen there was again a series of offences which crossed State lines. In that case the majority comprising Wilson, Deane, Dawson, Toohey and Gaudron JJ referred to Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57 and quoted the following on totality:
“ The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make total, it always necessary for the court to take at least a look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”

After citing this passage, their Honours go to say (@ 66):
“ In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.”

While this case does not deal with crossing State lines or with stale offences, the principles of totality are the same. The learned sentencing judge ought to have considered all 179 counts of imposition on the Commonwealth as a single series of offences, applied a head sentence, deducted whatever time the appellant had served and then fixed the non-parole period having regard to the usual factors such as the possibility of rehabilitation, a plea of guilty etc.
The Commonwealth Director of Public Prosecutions through Mr Brian Martin QC with Miss Elizabeth Bolton, for the respondent, put to the Court that the learned judge had considered the principles of totality:
“Whilst I accept that the defendant is not punished twice for the offences that constituted the information before the learned Magistrate it does, in my view, put the present offending in rather a different light than otherwise might have been the case in that that separate group of offences were being committed at the same time as the present group in respect of a different wholesale outlet.”
...
“ I also take into account the defendant’s antecedents, his age, his cultural and educational background and the fact that the short term of imprisonment imposed by the Magistrates Court for seventy nine similar offences has apparently sheeted home to the defendant the serious nature of his offending.”
What I have quoted shews that the judge has in mind the earlier offences but there is nothing to indicate that he has considered both sets of offences when fixing the head sentence. He has taken into account the appropriate factors when sentencing for the 40 counts including that the appellant has spent some time in prison but again does not say that the three months has been deducted from a combined head sentence incorporating the totality of the offending behaviour. Whilst there is no magic in the word ‘totality’, it is desirable that a sentencing judge make it clear on what principles he or she is sentencing. The learned judge does not seem to have considered the principle of totality and if he has he does not seem to have acted on it.
I suggest that this ground succeeds.
The respondent argues that the sentencing judge erred in applying a global sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA): instead the counts of imposition on the Commonwealth should have been dealt with pursuant to section 4K(3) and 4K(4) of the Crimes Act 1914 (Cth).
"Sentencing for multiple offences

18A. If a person is found guilty of a number of offences for which he or she was charged on the one complaint or information, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates."

Since its introduction section 18A has mostly been used in the lower courts of this State to impose a single sentence for a number of offences. Occasionally the section has been used in higher courts without much consideration as to whether it has been appropriate, a recent example being R v Filippakis (unreported, SA Central Districts Criminal Court, delivered 16 August 1998).

A significant difference between s18A and s4K(3) is that s18A allows offences against various provisions to attract a global sentence, whereas s4K(3) is restricted to charges of offences against the same provisions of the law of the Commonwealth. Section 18A of the Criminal Law (Sentencing) Act is unique to South Australia, though Tasmania does have a similar provision currently in operation.

"Section 4K:

Continuing and multiple offences

(1) Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.

(2) Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person is guilty of an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.

(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

(4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence."

The respondent argues that section 4K(3) authorises the joinder of a number of charges of breaches of Commonwealth law in the same “... information, complaint or summons ...”. Upon conviction of multiple offences joined pursuant to s4K(3), s4K(4) permits the imposition of one penalty in respect of those offences. It is argued that s4K(3) through carefully selected language has restricted the application of 4K(4) to the jurisdiction of summary courts only.
Tadgell and Ormiston JJ.A. and Southwell AJA in R v Bibaoui (1997) 2 VR 600. The respondent had pleaded guilty to three counts on an indictment whereby the respondent had defrauded the Commonwealth (the Department of Social Security). The respondent had used a series of false names and it was clearly well planned. Each count was brought pursuant to s29D of the Crimes Act 1914 (Cth) and it was admitted that each count constituted a large number of fraudulent claims. The respondent had defrauded $73,739.08. The County Court judge after hearing a guilty plea imposed a single sentence for the three counts. The respondent was sentenced to 20 months imprisonment. He was released after 14 months. A reparation order was also made. The learned sentencing judge relied on s4K(4) of the Crimes Act to impose a single sentence of imprisonment. The Court of Appeal in Victoria held that section 4K(3) limited the imposition of a global sentence to summary jurisdictions only and that the County Court judge could not use section 4K(4) for this purpose.
The ability to impose a single sentence pursuant to s4K(4) rests very much with the meaning of the expression ‘information, complaint or summons’ in s4K(3). Some assistance is gained from section 4A of the Crimes Act:
"Meaning of certain words

In a law of the Commonwealth, unless the contrary intention appears:

'committed for trial', in relation to a person, means committed to prison with a view to the person being tried before a judge and jury, or admitted to bail upon a recognizance to appear and be so tried.

'Indictment' includes an information and a presentment."

Parliament in this section has particularly singled out ‘indictment’ as a word requiring clear explanation. It was put to this Court by counsel that the word ‘indictment’ includes an information but an information is nowhere described to include an indictment and that this exhibits an intention to restrict the section to courts of summary jurisdiction.
Within the context of Bibaoui and Victorian procedures, the argument is easy to follow. In Victoria the term used to initiate proceedings in the Superior Courts is ‘indictment’ or ‘presentment’, while in the lower courts the terms used are ‘information, complaint or summons’. Therefore section 4K(3) may be read as applying to a summary jurisdiction given that the same words have been used in the Commonwealth legislation as are used in Victoria, to describe the process by which proceedings in this jurisdiction are instigated. It is easy to conclude that the power to impose a single sentence is restricted solely to summary jurisdiction given that s4A does not include a definition of ‘information’ but is at pains to define ‘indictment’. This view was summed up by Ormiston JA in his judgment (@ 601):
“Thus his Honour’s reason for asserting that the only provision which would permit the joining of more than one count was erroneous, as is likewise his conclusion that the expression, ‘information, complaint or summons’ in subs. (3) should be treated as also referring to an indictment. I cannot accept that the word ‘indictment’ on any proper understanding of that expression, in the absence of any specific provision which would give it such a meaning, should be comprehended within the words ‘information, complaint or summons’, which are well known processes for commencing criminal proceedings in summary jurisdictions.”

(@ 602):

“But the prosecutions which subs. (3) appear to contemplate are confined to those brought by the same ‘information, complaint or summons’, which are each descriptions of originating criminal process in summary jurisdictions, that is, they describe a process by which persons are prosecuted in Magistrates’ Courts or other inferior jurisdictions of the several States and Territories, but none is apt to describe those proceedings relating to indictable offences which are ordinarily brought on behalf of the Commonwealth for present purposes by indictment in those courts in which jury trials are heard namely the Supreme Courts and the County or District Courts in those various jurisdictions.”

An unexpected problem arises in South Australia because ‘informations’ are used to institute proceedings in the higher courts and ‘those courts in which jury trials are heard’. The terms ‘information, complaint and summons’ are used to describe proceedings in the Magistrates’ Courts.
As a matter of completeness I shall set out the terminology used in the various States to describe the processes used to instigate proceedings in the Superior and Magistrates Courts. In New South Wales, Western Australia and the Northern Territory the term ‘indictment’ is used for proceedings in superior courts and in the Magistrates courts the terms ‘information, complaint and summons’ are used. In Tasmania and Queensland the term ‘indictment’ is used in superior courts and the terms ‘complaint and summons’ are used in the Magistrates Courts. In Victoria the terms ‘indictment and presentment’ are used in the superior courts and ‘information, complaint and summons’ in the Magistrates Courts. The Australian Capital Territory mirrors that of South Australia, in that ‘information’ is used to describe proceedings in the superior courts while 'information, complaint and summons’ are used in the Magistrates’ courts.
What one can say from this is that the terms ‘information, complaint and summons’ encompass all summary jurisdictions within the Commonwealth, so there is little doubt that s4K(3) and (4) were meant to cover this jurisdiction. With regard to the jurisdiction of the superior courts, a literal reading of the legislation would see s4K(3) applying to South Australia and the ACT only, as they use the word ‘information’ to describe their processes compared to ‘indictment’ or ‘presentment’ in the other States. It would be a strange state of affairs if the Commonwealth were to single out the ACT and South Australia to enable joinder of Commonwealth offences in superior courts and not in the other States. One of the primary objectives of Commonwealth legislation is to provide consistency between the States. It would be quite illogical for the Commonwealth to allow Commonwealth offences to be treated differently in the ACT and South Australia without an express intention stated. Certainly there is nothing in the explanatory memoranda in Parliament dealing with s4K of the Crimes Act 1914 or its predecessor s45B of the Acts Interpretation Act 1901 to suggest that the ACT and South Australia were to treat Commonwealth crimes in their superior courts differently from other States.
The ACT has adopted the South Australian terminology and in the ACT, an information is used in the superior courts. It is evident by section 4A and the definition of indictment, that the Commonwealth Parliament was aware of the terminology in the other States. Else why would it refer to an indictment or presentment at all? It would have been very easy for Parliament to have removed any doubt over whether they wished section 4K to cover both the superior and Magistrates Courts by simply stating ‘may be joined in the same indictment, information, complaint or summons’. This is supported by the fact that they have defined indictment to include an information, thus covering South Australia and the ACT. Yet the Commonwealth has not defined information to include an indictment or presentment. I do not accept that Parliament simply overlooked the six other States and Territories when this legislation was drafted.
There is little doubt that allowing joinder of offences in the superior courts would make the job of a court easier. However I agree with respect, with Ormiston JA (@ 604):
“... but in my opinion convenience should not dictate what is the proper method which should be adopted upon the hearing and determination of prosecutions by indictment.”

For all the reasons I have mentioned, section 4K(3) and (4) do apply only to the summary jurisdiction. This is made clear by the words ‘information, complaint and summons’ in s4K(3) and the definition of indictment in section 4A..
Unfortunately, unlike Victoria, the issue does not finish here. This Court must decide whether s4K was intended to cover the field with respect to the joinder of Commonwealth offences in superior and summary jurisdictions. This remains an issue in South Australia because of section 18A of the Criminal Law (Sentencing) Act 1988. Section 18A purports to allow a single sentence to be imposed with respect to a number of offences which are ‘charged on the one complaint or information’. Here the intention of the South Australian legislation is also ambiguous. It is designed to apply to summary jurisdiction, this is evidenced by the word ‘complaint’. However, the word ‘information’ could apply to both superior and summary jurisdictions. There does not appear to be any definition of ‘information’ in the Act. Because of this ambiguity, section 18A has been used in both the summary and superior jurisdictions, although it may seem unnecessary to rely on it in the superior courts as offences may be joined pursuant to section 278 of the Criminal Law Consolidation Act 1935 (SA):
"Joinder of charges

278. (1) Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.

(2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.

(3) This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information."

Unlike the Criminal Law (Sentencing) Act 1988, in the Criminal Law Consolidation Act 1935 the draftsman has gone out of his way to avoid ambiguity as to the meaning of ‘information’:
"Informations Interpretation

274. (1) The provisions of this Part relating to informations shall apply to any other criminal pleading with any modification made by rules under this Part.

(2) In this Part (except in sections 275 and 276)-

'information' means any criminal information presented to the Supreme Court or the District Court."

It is quite clear that s278 of the Criminal Law Consolidation Act applies to superior courts only.
What one must now consider, within the context of the South Australian legislation, is whether the Commonwealth through s4K of the Crimes Act, intended completely to control the application of global sentencing in superior and summary jurisdictions of multiple Commonwealth offences: in particular whether s4K is inconsistent with s18A of the Criminal Law (Sentencing) Act.
From a historical perspective, it is worth noting that at the time the Commonwealth introduced s4K in 1987, only Tasmania had a provision applicable to a superior court akin to section 18A of the Sentencing Act, this being s389(7) of the Criminal Code Act 1924 (TAS). Thus, when the provision was introduced it may well have been thought unnecessary specifically to mention something already common practice, that being the imposition of separate sentences for Commonwealth offences in superior courts. Section 18A was not enacted until 1992.
It follows logically, that the Commonwealth did intend that its procedure regarding joinder of multiple offences in superior courts should prevail. Why else would the Commonwealth have isolated the summary jurisdiction in s4K(3)? The obvious intention of the Parliament to allow for a single sentence with respect to the summary jurisdiction, leads to the implication that by not referring to indictment or presentment, it did not contemplate this procedure in the superior courts.
It is difficult to avoid the conclusion that Parliament intended to exclude the power to impose a single sentence in respect of Commonwealth offences in superior trial courts. There simply does not appear to be any other explanation for Parliament having restricted the operation of section 4K(3) and (4) to the courts of summary jurisdiction.
Mr Martin QC argued that further support for this view may be gleaned from the Social Security Act 1947 (Cth). Section 138(5) enacted in 1984, limited the power to impose a single sentence for specified social security offences to the courts of summary jurisdiction. The restriction still exists today in section 1353 of the Social Security Act 1991 (Cth). Not much may be gained by comparing the provisions of the Social Security Act and the Crimes Act. It is enough to say that the Commonwealth by restricting s4K(3) to courts of summary jurisdiction, has by implication removed from the superior courts the power to impose a single sentence. I find that s4K was intended to cover the situation in this case.
That does not mean that section 18A has no work to do. There is a marked distinction between section 18A and section 4K. Section 18A is much wider in application and may be used even if there not be offences against the same provisions of the law of the State. Under section 18A offences against various provisions may attract a global sentence. The power in section 4K is confined to joinder in respect of charges of offences against the same provisions of the law of the Commonwealth. As a result it is not possible, for example, for the Commonwealth to join social security offences with conspiracy to defraud offences. Section 18A permits sentencing for multiple offences joined in a complaint or information and such joinder is authorised by sections 51 of the Summary Procedures Act and 278 of the Criminal Law Consolidation Act.
Section 109 of the Commonwealth Constitution deals with inconsistency between State and Commonwealth laws:
"Inconsistency of laws

109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

It is clear from the words of section 109 and from the many High Court analyses of it that a State law and Commonwealth law may coexist, if the State law deals with matters not covered by the Commonwealth law. This is the position here. Section 18A provides for situations not contemplated by s4K of the Crimes Act. Yet section 18A is to be limited to matters not covered by s4K of the Crimes Act. As Dixon J put it in Ex parte McLean (1930) 43 CLR 472 (@ 483):
“The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal Statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.”

In the present case, s4K says expressly that in summary jurisdictions, continuing and multiple offences of the same or similar nature, against the Commonwealth may be dealt with by the imposition of one penalty. Section 4K by implication, for the reasons I have expressed, does not allow the imposition of a single sentence when like offences are being tried in a superior trial court. To this extent section 18A is inconsistent with section 4K.
Therefore the learned sentencing judge could not rely on section 18A to impose a global sentence with regard to the 40 counts of imposition on the Commonwealth.
For the sake of completeness, if my brother and sister were to differ with me on the issue of whether section 4K operates to the exclusion of section 18A in the manner in which I think it does then a question arises as to whether section 18A may be saved by section 68 of the Judiciary Act 1903 (Cth).
The general policy considerations underlying section 68 were expressed by Dixon J in Williams v The King [No. 2] (1934) 50 CLR 551 (@ 560):
“This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.”

Section 68 should be broadly construed when picking up procedural provisions of the States; see Peel v The Queen (1971) 125 CLR 447, R v Walsh (1984) 55 ALR 496 and R v Oti (1990) 48 A Crim R 91. There is no reason to suggest that section 18A is not a procedural provision. The imposition of a single sentence pursuant to section 18A need not alter the length of the head sentence or affect eligibility for parole. For these reasons there would be no obstacle to section 18A being saved by section 68 of the Judiciary Act.
Having decided that the learned sentencing judge could not rely on s18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose the one sentence he did and that section 4K demands that a separate sentence be imposed for each offence, we should determine the appropriate sentences.
The appellant is now 30 years old. The prior convictions of dishonesty including seven counts of receiving and seventy nine counts of imposition were all committed within the same period as the current series of offences. The appellant pleaded guilty to the present offences.
The appellant was born in Victoria and throughout his secondary education had obvious behavioural problems. He moved to Melbourne at fifteen and there lived in refuges and hostels. At age seventeen he began travelling around Australia. Three years later he arrived in Adelaide.

The appellant has served three months in prison for the ‘Westan’ offences and claims that this has sheeted home to him the responsibility he has to the community to pay sales tax when it is required.
The nature and circumstances of the offences must also be taken into consideration, the learned sentencing judge aptly describes the course of conduct:
“It is sufficient for me to say that they are serious offences which are hard to detect and they result in a loss to the revenue of the Commonwealth, in the present case, of a substantial amount.
The offences clearly form part of a course of conduct consisting of a series of criminal acts of the same character and the persistent and deliberate commission of those offences by the defendant over a period of approximately seventeen months in flagrant disregard of the law is a matter which adds to the serious nature of the offending.
As I said earlier, since the avoidance of payment of sales tax by dishonest practices is a prevalent offence, particularly in the computer industry, the aspect of general deterrence in the sentencing process is an important factor for me to bear in mind.”

The maximum penalty for each of the 40 offences is imprisonment for two years as described by section 29B of the Crimes Act:
"False representation

Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence.

Penalty: Imprisonment for 2 years."

or a fine of $12,000 or both a fine and a term of imprisonment, by virtue of sections 4B and 4AA(1) of the Crimes Act.
In sentencing the totality of his offending must be taken into account. I accept the submission that the plaintiff is a good candidate for rehabilitation and has in fact served a three month sentence for the ‘Westan’ offences. I also accept the fact, that despite his turbulent adolescence, this bout of offending, for all intensive purposes, is the only serious one. I refer to the words of Legoe J in the Queen v Suckling [1983] 33 SASR 133 (@138):
“The question then remains as to whether the learned sentencing Judge in approaching the sentence in this way has adopted a sufficient ‘measure of understanding and flexibility of approach’ (see Reg v Todd [1982] 2 NSWLR 517, per Street C.J. at p. 519), and whether the background and circumstances of these offences and of this particular appellant required considerations of fairness to the prisoner in his present situation playing a dominant role.”

With those words in mind, I suggest sentencing the appellant to imprisonment for one month on each of the forty counts. This amounts to a total head sentence of imprisonment of three years and four months. Pursuant to s19AB of the Crimes Act I fix a non parole period of one year and eight calender months. I agree with the learned sentencing judge that the term of imprisonment and the non parole period date should date from the 30 March 1988, being the day on which the appellant’s bail was revoked and he was remanded in custody.
I suggest that the order for reparation remain unchanged.
I realise that the total of these sentences and the global sentence given in the Magistrates Court are still disparate. Perhaps if the Special Magistrate had had the benefit of hindsight, he would have viewed this course of offending in a ‘different light’ and possibly given a tougher sentence. Maybe the appellant was just lucky.
This kind of offence is difficult to detect and is becoming more frequent. A clear message needs to be given that the offence will not be taken lightly. In R v Cameron and Simounds, King CJ (@ 307):
“ Nevertheless, in cases of this kind, that is to say of sustained and deliberate fraud over a period of time, the deterrent purpose of punishment must be paramount. The necessity of protecting the integrity of the social security system by deterrent penalties must take priority over other considerations.”

In R v Elvin, Higgins J said:
“ First, tax fraud is not to be regarded as less serious than social security fraud. Indeed, it may, generally, involve greater culpability being more likely to be the result of greed rather than need.
Second, the deliberation involved and the intended deleterious result to the revenue are important to the assessment of culpability.”

This was an efficient and well orchestrated method of tax fraud. It went beyond one supplier and involved a total of 119 offences. The 40 offences on their own involved cheating the public revenue of $13,599.59. For all these reasons, the disparity in sentence is justified.
I suggest that the appeal be allowed to the extent of reducing the appellant’s head sentence by five months and his non parole period by two months.

Perry J. The appellant appeals against the sentence imposed upon him in the District Court following his plea of guilty in that court to 40 counts of imposition on the Commonwealth contrary to s29B of the Crimes Act 1914 (Cth). The learned sentencing judge, purporting to exercise the power conferred by s18A of the Criminal Law (Sentencing) Act 1988, imposed a single sentence, namely 3 years and 9 calendar months imprisonment, against which he fixed a non-parole period of 1 year and 10 calendar months.[1] Both the term of imprisonment and the non-parole period were ordered to run from 30 March 1998, being the date upon which the appellant’s bail was revoked and he was remanded in custody prior to sentencing.
[1] see s19AB of the Crimes Act(Cth)1914.
Apart from the sentence of imprisonment, pursuant to s21B of the Crimes Act, the learned sentencing judge ordered that the appellant make reparation to the Commonwealth by way of a money payment of $13,599.59.

Factual Background

At the time of the offences in question, the appellant was aged about 25 years. The offences were committed between February 1994 and July 1995.
The appellant developed a hobby, which in the course of time became more of a business, buying second hand computer hardware which he rebuilt. In order to do so, he required new computer parts. Over a period of time, he avoided the payment of considerable amounts of Commonwealth sales tax by quoting a false sales tax exemption number to suppliers of computer parts which be bought.
The appellant was convicted on his plea of guilty to the charges now in question on 2 March 1998. Before then, on 16 May 1997, he had been convicted of a number of similar offences (“the Westan offences”) in Adelaide Magistrates Court. Those offences involved seven counts of receiving and 79 counts of imposition on the Commonwealth. They related to the conduct of the appellant in falsely representing to a company known as Westan Pty Ltd that he had a valid sales tax exemption number, by the use of which he was able to purchase items of computer hardware. The amount of sales tax avoided in respect of the Westan offences was $9,579.51.
For the Westan offences, the appellant was imprisoned for eight months, together with a direction that he be released after serving three months and upon his entry into a bond to be of good behaviour for a period of two years.
The offences now in question (“the Edge offences”) first came to the attention of the Australian Taxation Office in about March 1997, following the execution by the Australian Taxation Office of a search warrant on the premises of another company, Edge Computers Pty Ltd. It appears that the appellant used the same technique as was involved in the Westan offences. More particularly, he falsified order forms in the name of a non-existent company, and falsified the “signature” on the order forms of someone whose name he had made up. The total value of the purchases from Edge Computers was $66,892.50. As I have indicated, the amount of sales tax avoided was $13,599.59.
There is a considerable overlap between the periods involved with the Edge offences and the Westan offences. In particular, the commencement of the Edge offences, that is the first of them, pre-dates the commencement of the Westan offences by over three months, but both groups of offences ended at the same time, that is, a date in July 1995.
At the time of the imposition of the sentence now under review, namely, as at 9 April 1998, the appellant had completed the term of imprisonment imposed with respect to the Westan offences, and some eight months of the two year good behaviour bond which he entered into upon his release from custody.

Grounds of Appeal

The notice of appeal lists five grounds of appeal, but only three of them were proceeded with at the hearing. The grounds advanced by Mr Richards who appeared for the appellant were, in summary, that the learned sentencing judge erred in failing properly to apply the principle of totality; that he erred in treating the Westan offences as prior offences for the purpose of sentencing on the Westan offences; and that the disparity between the sentence imposed in the Magistrates Court on the one hand and that which was imposed in the District Court was indicative of appealable error.
As to the first ground argued, the Director of Public Prosecutions, Mr Martin QC, who appeared for the respondent, quite properly acknowledged that the totality principle applied, notwithstanding the fact that the appellant was sentenced separately in two different courts for the two groups of offences.
It is unfortunate that he was not sentenced on the one occasion in one court for all of the offences. This Court has on many occasions in recent years drawn attention to the desirability that all charges against a particular accused which can be disposed of in the one court on the one occasion should be so dealt with. Indeed, there are many examples of matters being referred from the Magistrates Court to the District Court or to the Supreme Court so that they may be dealt with together with other charges pending. No satisfactory explanation has been given by the respondent for its failure to see to it that that course was followed in this case.
Be that as it may, the application of the totality principle in circumstances such as this is made clear by the decision of the High Court in Mill.[2] In that case, the appellant committed three armed robberies, two in Victoria and one in Queensland, over a period of six weeks between December 1979 and January 1980.
[2] (1988) 166 CLR 59.
In September 1980, he was sentenced in respect of the Victorian offences to ten years imprisonment with a non-parole period of eight years.
Upon his release on parole in Victoria, he was extradited to Queensland where, in the Supreme Court of Queensland, and following his plea of guilty to the armed robbery committed in that State, he was given a further sentence of eight years imprisonment with a recommendation that he be considered for parole after three years.
In the course of their joint judgment, Wilson, Deane, Dawson, Toohey and Gaudron JJ referred to the totality principle. In doing so, their Honours quoted[3] with approval a passage from Thomas, Principles of Sentencing, 2nd ed (1979):[4]
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘When a number of offences are being dealt with and specific punishment in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong; when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
[3] 166 CLR at 62-63.
[4] At 56-57.
As their Honours went on to note:
“.... the proper approach which His Honour (the Queensland sentencing judge) should have taken was to ask what would be likely to have been the effective head sentence imposed if the appellant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.”[5]
[5] Mill v R (supra) at 66.
To apply that principle to the circumstances of this case involves a consideration of the question whether, having regard to the totality of the offending involved with respect to both the Westan and Edge offences, it was a fair overall punishment that the appellant serve three months in custody with respect to a head sentence of eight months imposed on the Westan offences, together with a further head sentence of three years and nine calendar months imprisonment with a non-parole period of one year and ten calendar months on the Edge offences. If one aggregates the two sentences, the overall head sentence was four years and five months and the overall non-parole period was two years and one month.
I think that it is proper to recognise the fact that the punishment should be regarded as more onerous when it is to be served in two discrete stages separated by a period of eight months, during which the appellant was at large while serving out the bond.
The purpose of the bond was to afford an opportunity for the rehabilitation of the appellant. There is no suggestion that he did not comply with the terms of the bond during the term between his release on the first gaol term and his incarceration on the imposition of the sentence now under review. It seems to me that a further gaol term imposed in such circumstances, which has the effect of disrupting the attempts made by the appellant to serve out and comply with the bond, must be regarded as operating more harshly upon him than would have been the case if a single sentence of imprisonment had been imposed in the first place.
While it is true that the learned sentencing judge did not expressly refer to the principle of totality, he was well aware of the fact that the appellant had served the term of imprisonment, at least the non-parole period, imposed in the Magistrates Court with respect to the Edge offences, and had been released on the bond at the time when his bail granted with respect to the present charges was revoked, and he was subsequently sentenced. However, it seems to me that, notwithstanding the seriousness of the offences, to impose an additional head sentence of three years and nine months for the offences now in question may properly be regarded as unduly severe, having regard to the considerations to which I have referred.
I conclude that if the learned sentencing judge did have regard to the principle of totality, in all the circumstances, he must be taken to have failed to give due weight to it, at least with respect to the head sentence of three years and nine months.
The non-parole period of one year and ten months, on the other hand, does not seem to me to be excessive, however the matter is approached.
Before indicating what variation of the sentence is in those circumstances called for, I will deal with the other two grounds of appeal.
As for the submission that the learned sentencing judge erred in treating the Westan offences as prior offences for the purpose of sentencing on the Edge offences, in my opinion, that contention is not made out.
It was perfectly proper for the learned sentencing judge to have regard to the circumstances which led up to the previous conviction in the Magistrates Court as indicative of a course of conduct which widened the base of the overall offending. In particular, in my opinion, no fault can properly be found with respect to the following observations made by the learned sentencing judge as to the inter-relationship of the two groups of offences, during the course of his remarks on sentence:
“It has been submitted by Ms Bolton that the offending must be regarded as serious. The amount of sales tax avoided is substantial. The offending occurred on a large number of occasions over a significant period of time. She submitted that it was a premeditated series of offences in which false signatures and false exemption numbers were used and that involved a degree of sophistication. Having regard to the defendant’s convictions in relation to the similar offences that I have mentioned, I infer that the defendant’s criminal conduct was wide spread and not just limited to one supplier. ..........
Mr Tothill asked me to take into account the fact that his client had already served three months imprisonment for the similar offences in respect of which he was convicted in the Magistrates Court.
That three months imprisonment has, in fact, sheeted home to him the responsibility that he does have to the community to pay sales tax when it is required.
Whilst I accepted that the defendant is not to be punished twice for the offences that constituted the information before the learned Magistrate it does, in my view, put the present offending in rather a different light than otherwise might have been the case in that that separate group of offences were being committed at the same time as the present group in respect of a different wholesale outlet.”
As for the final ground of appeal argued by the appellant, that is as to the disparity between the sentences imposed for the two groups of offences, it must be acknowledged that it would be difficult to explain satisfactorily the difference in the two sentences by reference to the circumstances of each of the two groups of offences, considered discretely. That is so, even allowing for the fact that the maximum penalty for each count before the learned magistrate was less than that which was available in the District Court. On the summary disposal of the charges, the maximum penalty was twelve months imprisonment, as opposed to the two year maximum available in the District Court.
But I think that the disparity is explained by reason of the fact that the sentence imposed in the Magistrates Court was manifestly inadequate, notwithstanding the difference in the maximum penalty which could be applied in that court. In my opinion, the case is one in which the remarks of King CJ in MacGowan[6] are apposite:
“... disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience.”[7] (emphasis added)
[6] (1986) 42 SASR 580.
[7] Ibid at 583. See also R v Lainas (1989) 50 SASR 461 per White J at 463.
If the appeal fell to be disposed of solely by reference to the appellant’s contentions with respect to alleged disparity between the two sentences, I would not interfere. But for the reasons which I have given, I would be disposed to allow the appeal insofar as it is based upon an alleged failure by the sentence judge properly to apply the principle of totality.
On that ground, I would allow the appeal for the purposes of reducing the head sentence of three years and nine months to a head sentence of two years and nine months, but I would not interfere with the non-parole period of one year and ten calendar months. Neither would I interfere with the direction that the term of imprisonment and the non-parole period should run from 30 March 1998.
So far I have not referred to the contention of the respondent put to the learned sentencing judge but rejected by him, being a contention repeated in this Court, namely, that having regard to the relevant statutory provisions, it was not open to the learned sentencing judge to impose a single sentence with respect to all of the counts on the information, as opposed to discrete sentences with respect to each count.

I deal with that aspect of the matter now.
It is convenient at this point to set out certain provisions of the relevant legislation (I restate extracts from the legislation as they appear in the judgment of the learned sentencing judge).
S68 of the Judiciary Act 1903 (Cth) provides in part:
“(1).. The laws of a State or Territory respecting .... persons charged with offences, and the procedure for:
.................
(c)... their trial and conviction on indictment;
................
......... shall, subject to this section, apply and be applied so far as they are applicable to the persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State. ..........
(2)... The several courts of the State or Territory exercising jurisdiction with respect to:
......... .............
(c)... the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, ........ or of any proceedings connected therewith, shall, subject to this section and to s80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
...............
(7)... The procedure referred to in subs(1) and the jurisdiction referred to in subs(2) shall be deemed to include procedure and jurisdiction in accordance with the provisions of a law of a State or Territory under which a person who, in proceedings before a court of summary jurisdiction, pleads guilty to a charge for which he or she could be prosecuted on indictment may be committed to a court having jurisdiction to try offences upon indictment to be sentenced or otherwise dealt with without being tried in that court, and the reference in subs(1) and subs(2) to ‘any such trial or conviction:’ shall be read as including any conviction or sentencing in accordance with any such provision.
......... ..............
(9)... Where a law of a State or Territory of the kind referred to in subs(7) refers to an indictable offence, that reference shall, for the purposes of the application of the provisions of the law in accordance with that subsection, be read as including a reference to an offence against a law of the Commonwealth that may be prosecuted on indictment.
(10). Where, in accordance with a procedure of the kind referred to in subs(7), a person is to be sentenced by a court having jurisdiction to try offences on indictment, that person shall, for the purposes of ascertaining the sentence that may be imposed, be deemed to have been prosecuted and convicted on indictment in that court.”
The relevant provisions of the Crimes Act 1914 (Cth) are as follows:
“4A.. In a law of the Commonwealth, unless the contrary intention appears:
...............
......... ‘Indictment’ includes an information and a presentment.
4GOffences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
4K... ...........
(3)... Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint, or summons if those charges are found on the same facts, or form, or are part of a series of offences of the same or a similar character.
(4) If a person is convicted of two or more offences referred to in subs(3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could have been imposed if a separate penalty were imposed in respect of each offence.”
The Criminal Law (Sentencing) Act 1998 (SA) (“the Sentencing Act”) provides, inter alia:
“18A.. If a person is found guilty of a number of offences for which he or she was charged on the one complaint or information, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.”
In submissions before this Court, the Director of Public Prosecutions suggested that the learned sentencing judge had erred in ruling that s68 of the Commonwealth Judiciary Act 1903 (“the Judiciary Act”) enabled him to impose one sentence for all counts pursuant to s18A of the Sentencing Act. In the Crown’s submission, this raised three essential issues. They are conveniently summarised in the Director’s outline of argument:
“(i)... Whether the power conferred by s4K(4) of the Crimes Act 1914 (Cth) (“the Crimes Act”) to impose one penalty in respect of multiple offences is limited to courts of summary jurisdiction or extends to trial courts in which proceedings are brought on indictment (or in the case of South Australia “information”).
(ii)If the answer to (i) is yes, whether the power in s18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) is applicable or is excluded because s4K of the Crimes Act operate to the exclusion of such State laws. This involves determining whether an inconsistency exists between s18A of the Sentencing Act and s4K of the Crimes Act because the federal legislature has evinced an intention through s4K to cover the field with respect to the power of the court to impose one penalty for a number of offences.
(iii).. If the answer to (ii) is no, whether, by virtue of s68 of the Judiciary Act, s18A of the Sentencing Act is a procedural provision that is capable of application to the process of sentencing a person convicted of Commonwealth offences.”
Here, the offences with which the appellant is charged are clearly indictable offences,[8] even though they are prosecuted on an information.
[8] see s4G of the Crimes Act.
Since 1852, when grand juries were abolished in South Australia, the procedure for the prosecution of offences in the Supreme Court was changed, in that it was then laid down by statute that:
“... any person may be put upon his trial at any Criminal Session of the Supreme Court for any crime or offence whatsoever, upon an information presented to the said Court in the name and by the authority of Her Majesty’s Advocate or Attorney-General in the same manner as heretofore upon an indictment returned by a Grand Jury; and every provision of the common law, and of Acts of Parliament, and of Ordinances, for the time being in force within the said Province relating to indictments, and to the manner and form of pleading thereto, and to the trial thereon and generally to all matters subsequent to the finding of the indictment, shall apply to any information to be so presented as aforesaid: ......”[9]
[9] Act No 10 of 1852.
That provision, which has been extended to apply to both the Supreme Court and the District Court is now contained in s275 of the Criminal Law Consolidation Act 1935.
So that in South Australia, an information filed in either the Supreme Court or the District Court may properly be regarded for all purposes as an indictment.
In support of his first point, namely, the contention that the operation of s4K(4) is limited to the courts of summary jurisdiction, Mr Martin QC referred to R v Bibaoui.[10]
[10] [1997] 2 VR 600.
That case, a decision of the Court of Appeal of the Supreme Court of Victoria, concerned a sentence imposed in the County Court of that State, on the respondent’s plea of guilty to three counts on an indictment alleging that he had defrauded the Commonwealth contrary to s29D of the Crimes Act (Cth). In purported reliance upon s4K of the Act, the County Court judge imposed a single term of imprisonment covering all three counts.
The Court of Appeal held that the reference in ss4K(3) to “two or more offences referred to in subs(3)”, must be understood as applying to two or more such offences “joined pursuant to ss(3) in the same information, complaint or summons”. The Court held further that the words “information, complaint or summons” referred to process initiating summary proceedings, and did not apply to proceedings instituted by indictment in the County Court.
In the result, as there was no other statutory provision apart from ss4K(4) which would have enabled a single sentence to be imposed, and as the common law required the imposition of a separate sentence upon each count, the District Court judge erred in taking the course which he did.
For the purposes of this case, I am prepared to accept the Director’s argument that the reasoning in Bibaoui is correct, and further, that notwithstanding the fact that in South Australia changes in the District Court and Supreme Court may be prosecuted upon an information, ss4K(3) and (4) are of application only to courts of summary jurisdiction, that is, to the Magistrates Court in this State.
But in my opinion, the next step in the Director of Public Prosecution’s argument is flawed. He contends that ss4K(3) and (4) are an exclusive code, which, pursuant to s109 of the Commonwealth Constitution, ousts s18A of the Sentencing Act in its application to the sentencing of offenders convicted of Commonwealth offences. But if the first premise of his argument, based on Bibaoui, limiting the application of both sub-sections to courts of summary jurisdiction is correct, neither sub-section is of application to prosecutions in either the District Court or the Supreme Court. It follows that in those two courts, the procedure for both the joinder of Commonwealth charges and the sentencing of defendants convicted of such charges must be found elsewhere than in s4K of the Crimes Act.
The answer lies in the proper application of s68 of the Judiciary Act. I have already set out the provisions of that Act which enable offences against the laws of the Commonwealth to be prosecuted on indictment, which, in the case of the District Court and the Supreme Court of this State, must include the information by which indictable offences are prosecuted in those courts, as to which the relevant State procedures apply. Furthermore, s68 subs(1) and (7) expressly provide that persons convicted upon any such prosecution may be sentenced in accordance with the procedures applicable in the State or Territory in which the indictment is brought.
It follows that as to the joinder of the counts on the information now in question, the relevant procedural provision was s278 of the Criminal Law Consolidation Act, which provides in part:
“278(1).. Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same of a similar character.
(2).............”
As to sentencing, the Director of Public Prosecutions properly concedes that s18A of the Criminal Law (Sentencing) Act is a procedural provision the application of which, in a proper case, is attracted by s68 of the Judiciary Act.
Furthermore, s109 of the Commonwealth Constitution does not take effect to oust or curtail the application of s18A in such circumstances, as on the Director of Public Prosecution’s own argument, s4K of the Crimes Act is not of application to the prosecution of charges in either the District Court or the Supreme Court.
It follows that the learned District Court judge who pronounced the sentence now under review was entitled to draw upon his power to do so pursuant to s18A of the Sentencing Act, and the respondent’s attack upon the procedural legitimacy of the imposition of that sentence fails.
Before parting with the case, I draw attention to the fact that a question arises as to the propriety of the joinder of the counts dealt with in the Magistrates Court in May 1997. Those counts were for two different groups of offences, some being for receiving and others for imposition on the Commonwealth. Insofar as those counts were apparently jointed in the one complaint or information, such joinder would, on the face of it, be contrary to the power conferred by s4K(3), which is limited to the joinder of offences “against the same provision of a law of the Commonwealth”. The power to impose a single penalty under s4K(4) must therefore be similarly limited. However, I do not pursue that aspect of the matter further, as the legitimacy of the course taken in the Magistrates Court does not arise in the present proceedings.
In the result, for these reasons, I would allow the appeal for the purpose of reducing the head sentence to a sentence of two years and nine months, but I would not otherwise interfere with the sentence under review.
Furthermore, I would reject the respondent’s challenge to the legitimacy of the imposition of a single sentence applicable to all of the counts on the information.
NYLAND J. I have had the advantage of reading the draft reasons for judgment of Perry J. For the reasons he has expressed, I agree that the District Court judge was entitled to use the provisions of s18A of the Criminal Law Sentencing Act 1998 when imposing sentence upon the appellant. I agree, therefore, that the respondent's challenge to the legitimacy of the imposition of a single sentence applicable to all counts on the information should be rejected.
I further agree that the appeal should be allowed only for the purpose of reducing the head sentence of two years and nine months.

[1998] SASC 6932

11 November 1998