R v McFarlane No. Sccrm-99-5 Judgment No. S129

R v McFARLANE
[1999] SASC 129

Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ

DOYLE CJ: This is an appeal against a sentence imposed by the District Court. The appellant pleaded guilty to six counts of offences committed on 8 July 1998. The offences are as follows: assault with intent to rob; not being licensed and possessing a semi-automatic rifle; having an unregistered rifle in his possession; unlawful possession of that rifle; illegal use of a motor vehicle, and larceny of two fishing rods and a crab net.
The District Court judge imposed a single sentence exercising his powers under s.18A of the Sentencing Act. The sentence imposed was six years imprisonment. He indicated that, but for the plea of guilty, the sentence would have been eight years imprisonment. The offences were committed while the appellant was on parole. The breach of parole meant that the appellant was liable to serve an unexpired balance of a previous sentence, the unexpired balance being seven years, five months, two days.
In relation to the total head sentence of thirteen years, five months, two days, the District Court judge fixed a non-parole period of ten years, six months, running from the day on which sentence was passed. The appeal is on the ground that the sentence is manifestly excessive.
Complaint is made about the head sentence and the non-parole period, although on appeal the argument focussed on the non-parole period. The judge is said to have failed to have taken account of the totality principle.
The main offence was the assault with intent to rob. The appellant entered a Cash Converters store. He was crudely disguised. He pointed a loaded rifle at one of the employees and demanded money. Several customers were present. The employee refused to give the appellant money. The appellant aimed the rifle in what was, undoubtedly, a threatening and terrifying manner, and uttered further threats. The employee grappled with the appellant and got the rifle from him. The appellant ran from the store but was apprehended. The rifle was found to have been loaded.
The offence is a serious one. The maximum penalty is life imprisonment. The use of a loaded rifle, the aiming of it, and the realistic threats made, are aggravating features. The rifle had been stolen but not by the appellant. The appellant had unlawfully used a car in connection with the offence. The fishing rods and net had been stolen by the appellant and were found at the appellant's home.
The appellant is now almost 34 years of age. He was 33 years of age when sentenced. He has a lengthy criminal record. It includes serious crimes of violence, notably, attempted murder and rape. We were told that the appellant has been in gaol for fifteen and a half years of the nineteen years preceding the sentence under appeal.
There was a helpful pre-sentence report provided to the judge. The report reveals that the appellant has had a disturbed childhood. The writer said, by way of summary:
“Clearly, the defendant's childhood experience of abuse, his disrupted family experiences and his early reliance on drugs left him ill-equipped to deal with situations he confronted as a young adult. A prolonged period of imprisonment, with its associated loss of opportunity for decision making and self-direction, did not assist him to develop more functional ways of dealing with pressure and independent living.
However, the overwhelming impression I have of the defendant's attitude to his predicament is that he is very ready to apportion blame, for his mistakes, to others. While some of his criticisms of his family, the correctional system and society are possibly sustainable, he appears to have chosen to ignore advice and has disregarded others’ rights in his concern for quick gratification of his own desires.”

Not surprisingly, the writer observed that on release from prison in March 1998 the appellant had difficulty in coping with ordinary life. The writer said:

“On release, he had found it difficult to cope with everyday tasks, deal confidently with other members of the public, control his anger, accept well-intentioned advice, respond to difficult situations with calmness, and make well-considered decisions, rather than responding impulsively to emotions and desires.”

The tenor of this report was confirmed by evidence from his probation officer. She gave evidence before the District Court judge and in the course of her evidence said:

“A.... From the point of view of responding to directions he was very good. He reported, he did everything he was expected to do. He found parole an extremely difficult thing. He found readjustment to living in the community very difficult, and in that he was problematic to supervise because of these difficulties.
Q... Could you briefly outline the areas of difficulty that you saw him experiencing.
A... Mr McFarlane is seriously institutionalised and, therefore, his ability to live in the community is affected by issues about his sense of security and he constantly panicked about each new circumstance that he met.”

The probation officer explained how his inability to handle money had played a part in the offence. I need not go into the details, but I accept what she says in relation to that, and the submissions in relation to that.

The material before the court reveals a man who has been given every chance to mend his ways, but without success. Deterrence has not worked, but it is the only thing left. It is clear that there is a real risk of further offending upon release. In short, there is nothing to mitigate the seriousness of the main offence, and nothing of significance, in his present circumstances that goes in mitigation, other than the prompt plea of guilty. However, I accept that the appellant's institutionalisation, and his inability to cope with everyday life, played a real part in the offence. This is tragic for the appellant, but is a fact that results from his own offences committed over time. It is the result of the lengthy imprisonment that he has had to serve. The institutionalisation means that there is a real risk that the appellant will offend again. But it is also the case that if the appellant can be helped to adjust to normal living, and if he has the desire to avoid offending, there is a chance that he will return to the community and live in it without offending.
The sentence imposed by the judge is in the range imposed for some armed robberies. In my opinion, it is not manifestly excessive. This was a very serious offence of its type. As I said, there are no real mitigating circumstances about it. Deterrence must be predominant in dealing with this appellant. His long record leaves no real room for mercy. Other offences were dealt with by the judge as well, and had to be reflected in the head sentence. All of these offences were committed while the appellant was on parole, and that is an aggravating factor.
In my opinion the head sentence cannot, under the circumstances, be regarded as crushing, or as calling for reduction, having regard to its impact upon the appellant. In my opinion, the head sentence was proportionate to the total criminality involved.
However, it is further argued that the judge failed, when considering the issue of totality, to consider the impact of the balance sentence yet to be served.
The judge referred to the matter of totality in connection with the head sentence. There is no reason to think that he overlooked this aspect of it, at either stage. But did he make sufficient allowance for it?
In Chandler v The Queen (1994) 62 SASR 558 at 560, King CJ said:
“In R v Rossi (1988) 142 LSJS 451 speaking for the Court of Criminal Appeal and applying R v Margetson (unreported, Court of Criminal Appeal, 16 October 1987), I pointed out that although the unexpired portion of the previous sentence could not be taken into account strictly on the principle of totality it was nevertheless part of the personal circumstances of the offender which the court ought to take into account in considering a sentence which was to be imposed.”
In Postiglione v The Queen (1997) 189 CLR 295 at 308 McHugh J expressed a contrary view. However, other members of the court do not appear to have expressed the same view.
In my opinion, we should continue to apply the approach taken by King CJ in Chandler. It may well be that the different views reflect a difference between the applicable statutory provisions, the difference in them appears from a comparison of s10 of the Sentencing Act with the provisions referred to by McHugh J. In any event, Chandler requires consideration of the unexpired balance as part of the appellant's personal circumstances.
So considered, it did not require a reduction in the resulting total head sentence. In the case of this appellant, there is a need for deterrence that argues against a further reduction. As well, the offences that gave rise to the balance sentence to be served, were very serious offences, and the criminality there has to be considered.
A reduction in the total head sentence would, in my opinion, fail to reflect the overall criminality of the appellant's conduct. The effective sentence of over 13 years is, undoubtedly, a tragedy for the appellant, but in my opinion cannot, in the circumstances, be said to call for a reduction on the grounds of mercy.
I turn to the non-parole period of ten and a half years. I agree with the sentencing judge that the appellant is a poor candidate for parole and there is a real risk of him re-offending. However, his opportunity to prove his suitability for parole has been limited. Granted, it has been limited by reason of his own offences, but one has to bear in mind that his institutionalisation is part of that same problem.
I consider that the effects of his institutionalisation should have been given greater recognition. If the appellant can be helped to adjust to normal life, there is, as I said earlier, a chance that he will avoid further offending. Or, putting it differently, if he can be helped to adjust he may not be such a poor prospect for parole.
As well, I consider that the non-parole period is truly crushing and leaves the appellant with very little cause for hope. I consider that the appellant should have been given scope for a better chance to prove himself. I consider that a lesser non-parole period should have been fixed. This will give the parole authorities the chance to consider an earlier release under strict conditions. It also would give the appellant the chance to prove himself.
On the basis of totality and for reasons of mercy, I consider that the non-parole period was too high. I would fix a non-parole period of eight years six months.
Accordingly, I would allow the appeal but only to the extent of reducing the non-parole period in the manner indicated by me.

BLEBY J: The circumstances of the offences and the effect of the sentence imposed on the unexpired period of parole have been adequately described by the Chief Justice and I will not repeat them.
There were several grounds of appeal but the argument on appeal really came down to one point: that the sentencing Judge erred in failing to modify the total of the head sentence and the non-parole period in accordance with the totality principle, and both are therefore manifestly excessive.
Although some of the factors I am about to mention have already been referred to by the Chief Justice, I need to repeat them in context with the remarks I am about to make.
The sentencing Judge took into account the appellant's early plea and apparent contrition, although he observed it was an overwhelming case against the appellant. But for that, he would have imposed a combined head sentence of eight years. He also took into account the effects on the victim. As a result of the assault, the victim was off work for two weeks and continued to suffer emotional stress in his employment thereafter.
The appellant was aged 33 at the date of sentence. He had a long list of antecedents including attempted murder, rape and armed robbery. He had spent all but three and a half of the previous 19 years in custody. According to his pre-sentence report, although his mother denied this, he claims to have been physically abused by his father in childhood. He was kidnapped when he was 12 by a stranger. He was missing for a few days and was threatened and sexually abused.
After this, according to his mother, his personality changed and he became angry, hostile and uncooperative. He claims to have been sexually abused by his brother after the brother had been sexually abused by a teacher.
He left school during year 8 and suffers from dyslexia. He left home at the age of 14 when his parents separated. He has had little family contact and support. He spent time in juvenile detention and was sentenced to a long period of imprisonment at the age of 20.
He suffers from painful arthritis. In prison he has been prescribed methadone for pain relief. When released he self-medicated with heroin and other drugs. He has a history of substance abuse.
He was in a relationship when sentenced in 1985 out of which relationship were born two children. In 1990 he married a lawyer whom he met while she was visiting Yatala. The marriage ended just before he was released at the beginning of 1998. When released he formed a relationship with a woman who worked as a prostitute.
Other important aspects of the pre-sentence report and the evidence of his parole officer have been referred to by the Chief Justice and I will not repeat them.
The appellant has become institutionalised and has obviously had great difficulty at successful reintegration into the community during his period on parole, in dealing with confrontation, and in acquiring basic living and money management skills. Much of that was evident from the manner in which he went about committing the offences in question and the circumstances giving rise to them.
The sentencing Judge took all these matters into account. He observed that he did not appear to be a good candidate for parole and considered that the element of deterrence warranted a long non-parole period. Nevertheless, he expressed the view that without some period of parole the appellant's chances of staying out of trouble on release would be significantly less.
Of the application of the totality principle to the head sentence, the sentencing Judge said:
“In view of your previous criminal record, I do not consider that such a head sentence is so crushing upon you in the circumstances that it should be reduced under the totality principle.”
His Honour was speaking there only of the head sentence. He did not refer to the principle again in considering the non-parole period. In setting that period, the sentencing Judge seems to have been more concerned to allow some period of supervised release.
Standing by itself, the head sentence of six years for these offences, given the appellant's antecedent record, was not excessive. That much was virtually conceded by the appellant by the withdrawal of the ground of appeal challenging the excessive nature of the sentence itself.
The only significant question before us is whether the sentencing Judge erred in failing to apply the totality principle to the sentence imposed, and whether in all the circumstances it became a crushing sentence that should now be reviewed.
In this type of situation, the totality principle cannot work in quite the same way as it does with a Judge who is imposing a sentence on one occasion in respect of a number of discrete offences. In those circumstances a number of different options are available by way of length of term, accumulation and concurrence of the sentences.
In this case, part of the total sentence of almost thirteen and a half years, in fact more than half of it, was outside the discretion of the sentencing Judge. That was a decision of the Parole Board under s.73 of the Correctional Services Act. If the Board had not acted, s.75 of the Act would still have required that the unexpired period of the previous sentence be served, and by virtue of s.31(2) of the Criminal Law (Sentencing) Act, the sentence imposed was required to be cumulative upon that previous sentence.
For that reason, many of the sentencing options available in the application of the totality principle are removed from the Court’s discretion. We must recognise that parliament has so decided. What it has decided is that the balance of the old sentence should be served before any new one takes effect. However, as King CJ pointed out in Chandler v R (1994) 62 SASR 558 at 560, the unexpired portion of the previous sentence becomes part of the personal circumstances of the offender which the Court must take into account in fixing a new sentence. The other two members of the Court of Criminal Appeal agreed with the Chief Justice.
In this case, that sentence clearly required a term of imprisonment that would act as a general deterrent for what was a serious offence of violence. The offence was aggravated by being committed whilst on parole.
On the other hand, but for this latest series of offences, and absent any other misbehaviour, the appellant would still be on parole. The old sentence had been fixed over ten years before and the offences, the subject of that sentence, had been committed over eleven years before.
Whilst the law provides for completion of the previous sentence where there is misbehaviour, it is the misbehaviour in question which precipitates the requirement to serve the balance of that sentence. One cannot divorce the serving of the former sentence from the assessment of the new penalty. There is a risk that considerations akin to those of the totality principle may render the total sentence arrived at so crushing that some adjustment of the sentence imposed is warranted. The adjustment cannot be made to the previous sentence. It can only be made to the sentence to be imposed cumulatively upon the earlier one. It cannot be made concurrent with the earlier one.
In my opinion, in failing to consider any reduction on this account, given the length of the old sentence now still to be served, there was a failure by the sentencing Judge to recognise in the sentence what had become an important aspect of the appellant's personal circumstances. The sentence was such that it could be said to approach the point of being crushing even in the somewhat aggravated circumstances.
I say that with some hesitation because, taken alone, I might not be persuaded that that particular personal circumstance might be sufficient to justify interference by this Court. But there is another feature of the appellant's personal circumstances which, combined with the one I have just mentioned, is sufficient, in my opinion, to justify interference. Although it was an offence of unacceptable violence, the evidence before the sentencing Judge showed that a significant causative element related to lack of any significant training and support in the basic skills of living, given the appellant's early subjection to abuse and subsequent institutionalisation.
He is one of those unfortunate members of the community on whom the length of gaol sentence is going the make very little difference, other than to make him more reliant on that type of institutional support, with little prospect of his overcoming any behavioural problems or of improving his social skills whilst in that environment. He is one for whom a long term of imprisonment has only a slender chance of inducing any social reform. The only possible hope of some improvement might be through some carefully supervised form of parole.
That means that the dominant elements in the sentence must relate to general deterrence and the protection of society. The latter is provided to a significant extent by the mandatory completion of the previous sentence and the length of that now remaining to be served.

Taking all these factors into account, I believe that in the circumstances of this case the sentence was unduly excessive, to an extent that warrants reconsideration. That would also have an inevitable effect on the non-parole period but in addition to that, the sentencing Judge seems not to have considered the crushing effect of the non-parole period independently. The only relevant factor recognised was the need for some time for a supervised period of return to the community.
Taking all the circumstances into account, I would reduce the head sentence to a period of four years' imprisonment, making a total period of eleven years, five months and two days. I would fix a non-parole period of eight years from the date on which the appellant was sentenced, namely 14 December 1998.
MARTIN J: For the reasons given by the Chief Justice, I agree that the appeal should be allowed but for the limited purpose of reducing the non-parole period to eight years and six months.

DOYLE CJ: In accordance with the reasons of majority, the orders of the Court are as follows:
1.... Appeal allowed.
2.... Set aside the sentence imposed by the District Court.
3.... Substitute a sentence of six years imprisonment cumulative upon the unexpired balance to be served of seven years, five months, two days.
4.... In relation to the combined head sentence of thirteen years, five months and two days, fix a non-parole period of eight years, six months to commence from 14 December 1998.
5.... Confirm the other orders made by the District Court.

[1999] SASC 129

15 March 1999