R v MOORE - [2015] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOORE
[2015] SASCFC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
6 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
Appeal against sentence.
The appellant was charged with a number of offences. They were one count of possessing child pornography, one count of aggravated possession of child pornography, three counts of theft, one count of possession of an article to commit an offence, two counts of providing false information to a second-hand dealer, one count of unlawful possession and one count of damaging property. The appellant pleaded guilty to all offences.
A judge of the District Court imposed sentences totalling five years and three months imprisonment. The judge fixed a non-parole period of three years and nine months. The head sentences consisted of the aggregation of a 15 month term of imprisonment for the first count of theft, an 18 month term of imprisonment for the second count of theft and the offence of possession of an article to commit an offence, an 18 month term of imprisonment for the third count of theft and the offence of property damage and a 12 month term of imprisonment for the offence of unlawful possession, all of which were to be served cumulatively (the dishonesty offences).
The court imposed a further sentence of 12 months imprisonment for the offences of possession of child pornography and aggravated possession of child pornography which the judge ordered to be served concurrently with the sentences for the dishonesty offences.
The appellant was convicted without further penalty for the two counts of providing false information to a second hand dealer.
The dishonesty offences occurred while the appellant was on bail in respect of the child pornography charges.
The grounds of appeal are that both the head sentence and the non-parole period are manifestly excessive and that the sentencing judge failed to give adequate consideration to the totality principle.
Held per Stanley J (Kelly and Blue JJ agreeing), allowing the appeal to the extent of setting aside the non-parole period and imposing a new non-parole period:
1. In this matter the aggregated sentence cannot be considered crushing. There was no reason based on the totality principle to reduce the length of any of the sentences imposed (at [28]).
2. There was no error in the approach of the sentencing judge in ordering the sentences for the dishonesty offences to be cumulative. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time (at [29]).
3. The fixing of a non-parole period serves a different function from the setting of a head sentence. In fixing a non-parole period it is appropriate to give greater weight to rehabilitation than in fixing the head sentence (at [32]).
4. The sentencing judge erred in the exercise of his discretion in fixing a non-parole period as long as he did. The appeal is allowed to the extent of setting aside the non-parole period and fixing a non-parole period of two years and eight months (at [33]).
Criminal Law Consolidation Act 1935 (SA) s 63A, s 85, s 134, s 270C, s 353; Second-hand Dealers and Pawn Brokers Act 1996 (SA) s 20; Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Scarpantoni [2013] SASCFC 120; R v Rossi (1988) 142 LSJS 451 ; Postiglione v The Queen (1997) 189 CLR 295; Johnson v R (2004) 78 ALJR 616; Mill v The Queen (1988) 166 CLR 59; R v Dorning (1981) 27 SASR 481; R v Fuller [2013] SASCFC 85; R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 48; Bugmy v The Queen (1990) 169 CLR 525 ; R v Moyle (1996) 186 LSJS 462, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifest excess” and “non-parole period"

R v MOORE
[2015] SASCFC 9
Court of Criminal Appeal: Kelly, Blue and Stanley JJ

KELLY J: I agree with the reasons of Stanley J and the orders he proposes.
BLUE J: I agree with Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant was charged with a number of offences. They were one count of possessing child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (CLCA), one count of aggravated possession of child pornography contrary to s 63A of the CLCA, three counts of theft contrary to s 134 of the CLCA, one count of possession of an article to commit an offence contrary to s 270C(1) of the CLCA, two counts of providing false information to a second-hand dealer contrary to s 20(2) of the Second-hand Dealers and Pawn Brokers Act 1996 (SA), one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA) and one count of damaging property contrary to s 85 of the CLCA. The appellant pleaded guilty to these offences.
A judge of the District Court imposed sentences totalling five years and three months imprisonment. The judge fixed a non-parole period of three years and nine months. The head sentences consisted of the aggregation of a 15 month term of imprisonment for the first count of theft and the offence of possession of an article to commit an offence, an 18 month term of imprisonment for the second count of theft, an 18 month term of imprisonment for the third count of theft and the offence of property damage and a 12 month term of imprisonment for the offence of unlawful possession, all of which were to be served cumulatively (the dishonesty offences).
But for his pleas of guilty, the judge indicated that he would have imposed terms of imprisonment for the dishonesty offences totalling seven years and nine months.
The judge imposed a further sentence of 12 months imprisonment for the offences of possession of child pornography and aggravated possession of child pornography which the judge ordered to be served concurrently with the sentences for the dishonesty offences.
The appellant was convicted without further penalty for the two counts of providing false information to a second-hand dealer.
The dishonesty offences occurred while the appellant was on bail in respect of the child pornography charges.
The maximum penalty for the offence of possessing child pornography is a term of imprisonment for five years. The maximum penalty for the aggravated offence of possessing child pornography is a term of imprisonment for seven years.
The maximum penalty for the offence of theft is imprisonment for ten years. The maximum penalty for the offence of unlawful possession is a fine of $10,000 or imprisonment for two years. The maximum penalty for the offence of damaging property is a term of imprisonment for ten years.
In accordance with the terms of the grant of permission made by a judge of this Court, the grounds of appeal are that both the head sentence and the non-parole period are manifestly excessive and that the sentencing judge failed to give adequate consideration to the totality principle.
Approach on appeal
The approach of an appeal court in considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[1] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[2]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[1] [2005] HCA 25, (2005) 228 CLR 357.
[2] [2005] HCA 25 at [25], (2008) 228 CLR 357 at 370 – 371.
When determining whether a sentence is manifestly excessive, the court considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.[3]
[3] R v Scarpantoni [2013] SASCFC 120 at [81].
An appeal against sentence is governed by s 353(4) of the CLCA. It provides:
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
Totality principle
The totality principle permits a court when sentencing an offender for a number of offences to mitigate what strict justice would otherwise require by reducing the length of the sentences where it considers the total sentence is so severe as to be crushing. In those circumstances the principle allows a merciful reduction in the sentences.[4] There may also be scope for the operation of the principle in a case where the aggregation of sentences cannot be characterised as crushing.[5] As the High Court said in Mill v The Queen:[6]
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
“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 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’.”
See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[4] R v Rossi (1988) 142 LSJS 451 per King CJ at 453 subsequently approved by the High Court in Postiglione v The Queen (1997) 189 CLR 295 at 307-308.
[5] Johnson v R [2004] HCA 15 at [22], (2004) 78 ALJR 616 at 624.
[6] [1988] HCA 70, (1988) 166 CLR 59 at 62-63.
The appellant’s personal circumstances
The appellant is 35 years old. He suffered sexual abuse as a child. His mother and his older sister have suffered long term health problems. He left school at 15. He worked intermittently in various labouring jobs. He has a history of substance abuse. He is addicted to methylamphetamine. This addiction lies at the root of his lengthy criminal history which includes numerous driving offences, failure to observe bail conditions, theft and property damage, and provision of false information and deception offences. He has not previously served a term of imprisonment. In 2008 the appellant was sentenced to a suspended term of three months imprisonment on entering into a bond after his conviction for an offence of obtaining financial advantage for himself from another person.
The appellant has significant health problems which require ongoing treatment and monitoring. He requires monthly blood transfusions. He has a chronic immuno-deficiency. He screens positive for a golden staphylococcus infection.
The nature of the offending
In relation to the child pornography offences, police attended at the appellant’s home. They seized a number of electronic items. On his computer and iPhone still and video images depicting child pornography were found. Upon analysis by police there were approximately 100 such images on the appellant’s computer and approximately 100 such images on his iPhone. The images were classified according to the Oliver scale in the range from levels 1 to 5. A significant number of these images depicted children under the age of 14. This is the basis of the appellant being charged with the aggravated offence of possessing child pornography.
This was serious offending; however, the sentencing judge found that the appellant’s motivation in possessing these materials was for the purpose of blackmailing paedophiles rather than for his own prurient interests. I agree with the submission of the respondent that this is scarcely mitigatory when one considers first, the rationale for sentencing for these offences, namely, the need to protect children who are abused and exploited in the making of this material and secondly, that blackmail is a criminal offence.
The dishonesty offences were committed on four separate occasions over a seven month period. The sentencing judge characterised this offending as a continuous course of criminal conduct for the purpose of funding the appellant’s drug habit.
The appellant entered into a hiring agreement with Radio Rentals for a television, a laptop and a tablet computer. He failed to make any of the payments required pursuant to the agreement. On 5 April 2013 he used the laptop as security for a loan with a second-hand goods dealer. He made a false declaration to the dealer that he owned the laptop.
In the early hours of the morning on 14 September 2013, the appellant was apprehended after disconnecting a hot water service of a unit at a complex at Woodville for the purpose of theft.
In October 2013 the appellant stole a number of items from an unoccupied residential premises including jewellery, a television, a laptop, a DVD player, a desktop computer, dolls and dolls clothing and other items. Shortly thereafter the appellant attended at a pawn shop and sold the jewellery for $1,100.
Later in that month the appellant removed or damaged electrical cabling to 40 housing blocks and from an electrical transformer at a development at Parafield Gardens. A few days later he deposited 60 kg of insulated aluminium cable at the Scouts Recycling Centre in exchange for $82. Two days later he returned and deposited more insulated aluminium cable and copper wire for which he received a further $82. The cost of repairing the damage caused by removing the cables at the housing estate was assessed at a sum in excess of $50,000.
Consideration
A peculiar feature of the sentencing is that the judge ordered the sentences imposed for the dishonesty offences to be served cumulatively while he ordered the single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the child pornography offences to be served concurrently. The general principle is that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other the sentences should be concurrent.[7] In my view, the child pornography offences cannot be said to arise out of the same course of criminal conduct or activity as the dishonesty offences. Accordingly, it is difficult to understand the basis upon which the sentencing judge ordered concurrency. On the other hand, Mr Lang, counsel for the appellant, submits that the aggregation of the cumulative sentences for the dishonesty offences, even allowing for what might be considered the generosity of ordering the sentence for the child pornography offences to be served concurrently, is too high. He submits that a lower sentence should have been imposed having regard to the totality principle.
[7] R v Dorning (1981) 27 SASR 481 at 482.
Whatever might be said about the approach of the sentencing judge in ordering particular sentences to be cumulative or concurrent and the failure to apply expressly the totality principle, it is the actual sentence imposed that must be considered in determining whether the sentence is manifestly excessive. That exercise involves an evaluation of whether the total sentence is a just and appropriate measure of the criminality involved considered in the light of the personal circumstances of the offender.[8]
[8] Mill v The Queen (1988) 166 CLR 59 at 63.
In my view, the head sentences totalling five years and three months were not manifestly excessive. I do not consider the head sentences are unreasonable or plainly unjust when the total criminality involved is considered against a background of a significant criminal history which has seen the appellant given ample opportunity to amend his unlawful behaviour. The sentence must also be considered in the context of the aggravating feature that the dishonesty offences occurred while the appellant was on bail. The aggregated sentences cannot be considered crushing.
In my view, there was no reason based on the totality principle to reduce the length of any of the sentences imposed. Even if an argument could be made that there was scope for partial concurrency in the sentences imposed for the dishonesty offences, I do not consider this avails the appellant. First, I do not accept there was any error in the approach of the sentencing judge in ordering the sentences for the dishonesty offences to be fully cumulative. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time.[9] Secondly, the fact that these offences were offences of dishonesty does not necessarily lead to the conclusion that they arose out of one course of criminal conduct or activity and are truly connected with each other so as to invoke the Dorning principle. All that connects them is that the offending was motivated by the need to fund the appellant’s drug habit. Thirdly, in any event, the appellant was treated generously and mercifully by the sentencing judge ordering that the sentence for the child pornography offences, which itself was at the lower end of the range for these offences, was to be served concurrently.
[9] R v Fuller [2013] SASCFC 85 at [27].
In my view, however, the position in relation to the non-parole period is different. The non-parole period of three years and nine months represents a figure of over 70 per cent of the head sentence.

In principle a non-parole period should, like a head sentence, operate as a deterrent and be properly proportionate to the gravity of the crime. In R v Creed King CJ said:[10]
... in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent. It is necessary, moreover, that the courts in fixing non-parole periods, no less than in fixing the head sentence, should make it clear that if there is repetition of crime, there will be no question of the punishment for the subsequent crimes being absorbed in that which is imposed for the earlier crimes, but that on the contrary the offender will have imposed upon him salutary punishment for the subsequent crimes also. The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
...
[The] Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.
[10] (1985) 37 SASR 566 at 568-569.
The fixing of a non-parole period however, serves a different function from the setting of a head sentence. In R v Miller[11] Doyle CJ observed that in accordance with what was said by the High Court in R v Shrestha,[12] in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence[13] and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.[14]
[11] [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
[12] [1991] HCA 26, (1991) 173 CLR 48 at 68-69.
[13] Bugmy v The Queen [1990] HCA 18, (1990) 169 CLR 525 at 531; R v Moyle (1996) 186 LSJS 462 at 465.
[14] R v Miller [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
In my view, given that the appellant previously has not served a term of imprisonment, the difficulties in managing the appellant’s health issues in prison, the need for his addiction to be addressed by his involvement in a drug treatment program, as suggested by Mr Fugler, which the correctional services authorities may not have the resources to provide, together with the prospects of rehabilitation if the appellant was under the supervision of the Parole Board for a lengthy period, I consider the sentencing judge erred in the exercise of his discretion in fixing a non-parole period as long as he did. I would reduce the non-parole period to two years and eight months.
Conclusion
I would allow the appeal to the extent of setting aside the non-parole period and fixing a non-parole period of two years and eight months.