R v P, NJ (No 3)
[2008] SASC 63
•6 March 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v P, NJ (No 3)
[2008] SASC 63
Reasons for Ruling of The Honourable Justice Layton
6 March 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY
Applicant convicted in 2003 of wounding with intent to cause grievous bodily harm and acquitted of attempted murder - Accused sentenced to 7 years, with 4 years non-parole - Victim since deceased - Applicant now charged with murder - Application to stay prosecution on basis that provisions of Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) ("Amending Act") and the amendments it effected to Criminal Law (Sentencing) Act 1988 (SA) ("Sentencing Act") expose applicant to double punishment - Amending Act amended Sentencing Act and introduced mandatory minimum non-parole period of 20 years for murder - Whether a sentence of mandatory minimum non-parole period for murder can be backdated to reflect time already spent in custody with respect to offence of wounding with intent to cause serious bodily harm pursuant to s 30(2) of the Sentencing Act - Whether sentence for murder, in light of amendments, can be backdated pursuant to s 30(1) of Sentencing Act - Whether the imposition of a mandatory minimum non-parole period can make appropriate allowance for common elements of offence of wounding with intent to cause grievous bodily harm and offence of murder.
Held: Wording of s 30(2) of Sentencing Act would not allow reduction of mandatory minimum non-parole period for murder to reflect time already spent in custody in relation to the offence of wounding with intent to cause grievous bodily harm – Amendments to Sentencing Act does not prevent the Court from backdating a sentence for murder to take account of a period spent in custody pursuant to s 30(1) of the Sentencing Act - Allowance can be made in sentencing for a mandatory minimum non-parole period to take account of common elements of offence of wounding with intent to cause grievous bodily harm and offence of murder - No warrant for permanent stay of proceedings - Rule 8 application dated 5 February 2008 dismissed.
Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 11; Criminal Law (Sentencing) Act 1988 (SA) ss 30(1), 30(2), 30(4), 32, 32A, referred to.
R v Colson (1999) 73 SASR 407, applied.
Johnson v R (2004) 205 ALR 346; Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610; R v Wallis (1949) 78 CLR 529, discussed.
Commissioner of Stamps v Telegraph Investment Pty Ltd (1995) 184 CLR 453; David Grant & Co Pty Ltd v Westpac (1995) 184 CLR 265; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; R v P, NJ [2003] SASC 308; R v P, NJ [2006] SASC 309; R v P, NJ (No 2) [2007] SASC 135; Saraswati v The Queen (1991) 172 CLR 1, considered.
R v P, NJ (No 3)
[2008] SASC 63Criminal
LAYTON J
Introduction
P, NJ (“the accused”) is charged on an Information in the Supreme Court of South Australia with the offence of murder. He seeks a permanent stay of the proceedings. This stay is sought on the basis that by virtue of the provisions of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) and the amendments which it effected to the Criminal Law (Sentencing) Act 1988 (SA), the accused is thereby exposed to double punishment.
Background
On 15 August 2003, after a trial before a Judge alone in the Supreme Court of South Australia, the accused was acquitted of attempted murder and convicted of wounding with intent to cause grievous bodily harm.[1] The particulars of the charges were that on 24 September 2002 at Thevenard the accused attempted to murder H, or in the alternative maliciously wounded H with intent to do grievous bodily harm. At the trial, the prosecution case was that the accused had attacked H with a knife resulting in a wound to the side of H’s head. As a result of the attack H suffered severe brain damage.
[1] R v P, NJ [2003] SASC 308.
On 29 August 2003, the trial Judge sentenced the accused to seven years imprisonment with a non-parole period of four years, to commence on 26 September 2002, being the date upon which he was taken into custody.
On 28 June 2004, 21 months after the stabbing, H died.
On 4 January 2006, an Information for murder was laid against the accused. The prosecution alleges that the stabbing caused H’s death.
On 26 September 2006, the accused became eligible for parole but has remained in custody pending the hearing of the murder charge.
This is the second application for stay of the prosecution. The accused made his first application for stay of the prosecution on 5 September 2006 on the basis that it was an abuse of process (“the First Application”). On 5 October 2006, I rejected the accused’s application and the Court of Criminal Appeal upheld my decision on 20 April 2007.[2] Special leave to appeal to the High Court of Australia was refused on 26 November 2007.
[2] R v P, NJ (No 2) [2007] SASC 135.
On 5 February 2008, the accused made his second application for stay of the prosecution (“the Second Application”). I heard the application on 29 February 2008.
The Second Application
As indicated earlier, the basis of the Second Application concerns the enactment of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) and the amendments it effected to the Criminal Law (Sentencing) Act 1988 (SA).
Section 32 and 32A Criminal Law (Sentencing) Act 1998 (SA)
On 1 November 2007, the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) was amended by the Criminal Law (Sentencing) (Dangerous Offends) Amendment Act 2007 (SA) (“the Amending Act”). For present purposes, the Amending Act amended s 32(5) and also inserted a new s 32A to the Sentencing Act. By s 11 of the Amending Act, the amendments were made retrospective. I will for convenience refer to these amendments collectively as “the combined amendments”.
Section 11 of the Amending Act states that the amendments to the Sentencing Act are retrospective:
11 – Transitional provision
An amendment made by Part 2 of this Act to the Criminal Law (Sentencing) Act 1988 applies whether the offence to which a sentencing of the imprisonment or non-parole period relates was committed before or after the commencement of that Part.
Section 32 of the Sentencing Act, as amended, provides as follows:
32 – Duty of court to fix or extend non-parole periods
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)if the person is not subject to an existing non-parole period—fix a non-parole period; or
…
(5) The above provisions are subject to the following qualifications:
…
(ab)if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
…
Section 32A of the Sentencing Act relevantly provides:
32A—Mandatory minimum non-parole periods and proportionality
(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may –
…
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
…
Further sections of the Sentencing Act, which are relevant to the argument before me, are subss 30 (1), (2) and (4), which provide as follows:
30—Commencement of sentences and non-parole periods
(1)Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a) make an appropriate reduction in the term of the sentence; or
(b) direct that the sentence will be taken to have commenced—
(i) on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
…
(4)Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
The argument
Mr Wells QC, who appeared on behalf of the accused, submitted that the combined amendments would result in double punishment to the accused if he was to be found guilty of murder. It was submitted that the combined amendments required the Court in this case to impose a minimum non-parole period of 20 years if the accused was found guilty of murder and that it would have to be in addition to the sentence which had already been imposed. That is, in addition to the sentence of imprisonment of seven years with a non-parole period of four years in respect of the accused’s conviction for wounding with intent to cause grievous bodily harm. Mr Wells submitted that the result would be a double punishment in relation to the same incident and would not allow reduction for the common elements of both offences.
Mr Well’s argument was three-fold, although interlinked:
·First, the wording of s 30(2) did not allow a reduction to the mandatory minimum non-parole period to reflect time already spent in custody.
·Second, the Court was unable to backdate the sentence for murder pursuant to s 30(1) of the Sentencing Act.
·Third, no reduction could be made to the mandatory minimum non-parole period to make allowance for the common elements of the offence of wounding with the intent to cause grievous bodily harm and the offence of murder.
Commencing with the first of these arguments, all of which are based on an assumed premise that the accused is found guilty of murder, Mr Wells submitted that the accused could not have the period he had already spent in custody since 26 September 2002 taken into account. It was submitted that s 30(2) of the Sentencing Act in its terms only permitted a reduction in the term of a sentence to take account of time spent in custody “in respect of an offence for which the defendant is subsequently sentenced to imprisonment”. The time which the accused has spent in custody, at least up until he was eligible for parole on 26 September 2007, has not been custody in respect of the charge of murder, but time spent in relation to the offence of wounding with the intent to cause grievous bodily harm. Up to this point in his argument, Mr Wells is correct in that s 30(2) of the Sentencing Act would not allow that period of custody to be taken into account.
Mr Wells continued in argument that the generally worded s 30(1) of the Sentencing Act, which enables a court to specify a date on which the sentence is to commence, would not allow a court to take into account the accused’s time spent in custody by backdating the sentence for murder to the date when he was taken into custody. Mr Wells submitted that the expressed intention of the combined amendments, particularly when viewed in the context of the Second Reading Speech, made it manifest that when a person was sentenced for murder he or she was to spend a minimum of 20 years in prison. He submitted that this minimum period could not be “ameliorated” (his wording) by reducing the sentence for murder to take account of time spent in custody. He submitted that the combined amendments modified the application of s 30(1) and no longer enabled a court to backdate a sentence in relation to murder. This would therefore result in a double punishment.
In considering Mr Well’s argument, I commence with the Full Court decision of R v Colson.[3] In that case, Doyle CJ gave the reasons of the Court, with Prior and Mullighan JJ concurring. The Chief Justice discussed at length the general terms of s 30(1) of the Sentencing Act, its history and its application. In the course of his reasoning, the Chief Justice drew attention to the well-accepted principle that a section is to be viewed within the context of the Act as a whole.[4] In tracing the history of s 30(1), the Chief Justice noted that the section was inserted to overcome a common law rule that a sentence of imprisonment was to be treated as commencing on the first day of any criminal sittings and not earlier. The Chief Justice canvassed earlier and related legislation and concluded as follows:[5]
[23] The cases to which I have referred clearly enough treat s 30(1), or its predecessor, as conferring a general power to direct that a sentence is to commence at an earlier date or time than the time at which it is imposed. Thomas, at least in the context of an order akin to an order for accumulation, treats the predecessor provision as empowering the fixing of a commencement time after the sentence is imposed.
[24]Taking into account the general terms in which s 30(1) is expressed, and its history, and not without some hesitation, I conclude that it is intended to confer a general power to specify a date or time for the commencement of a sentence, earlier or later than the time at which the sentence was imposed.
[25]One of the reasons for my hesitation is the fact that, as I said earlier, it is pretty well unheard of for a court to order that a sentence of imprisonment is to commence at a later time than the time at which it is imposed, except in the circumstances dealt with by subss (3) and (6). But the same comment applies to fixing an earlier date or time for commencement of a sentence, other than in the circumstances contemplated by subss (2) and (6). As King CJ said in Jamieson, it would only be in very rare circumstances that it would be appropriate for a court to exercise the power to fix an earlier commencement date or time so as to include a period during which the offender has not actually been in custody: 50 SASR 130 at 134. Likewise, it would only be in exceptional circumstances that it would be appropriate for the Court to fix a later commencement time, other than in the circumstances contemplated by s 30(3) and (6). [Emphasis added]
[3] (1999) 73 SASR 407.
[4] Ibid, 409 [12].
[5] Ibid, 412 [23] – [25].
Mr Wells submitted that the Full Court, in his respectful view, was wrong. At the same time he correctly agreed I was bound by the reasoning in that case. Instead, he submitted that the reasoning of the Full Court did not apply as a result of the effect of the combined amendments. He also drew attention to the fact that the Chief Justice, in concluding that s 30(1) enabled a court to fix either an earlier or later date for the time of sentence, had reached that conclusion “with some hesitation”.
In setting the scene for his arguments, Mr Wells drew attention to the fact that is was a principle of statutory interpretation that where there have been amendments effected on an Act, both the Act which is amended and the amending Act are to be read together as the “combined statement of the will of the legislature”.[6] Further, that when effecting textual amendment of an Act, it was the intention of the legislature “to produce a revised text which thereafter … is to be construed as a whole”.[7]
[6] Commissioner of Stamps v Telegraph Investment Pty Ltd (1995) 184 CLR 453, 463.
[7] Ibid, 479.
In this case, Mr Wells submitted that the combined amendments demonstrated a clear intention by the legislature to ensure that there was a minimum period of time spent in prison for murder and, in his submission, “there was but one way of ameliorating the minimum non-parole period”,[8] namely the application of the particular “special exceptions” indicated in s 32A(3) of the Sentencing Act. It is common ground that these “special exceptions” do not apply in this case. Mr Wells submitted that when the Sentencing Act was viewed as a whole in the light of the combined amendments, no other amelioration of the minimum mandatory period was permitted. To support this argument, Mr Wells referred to the decision of the High Court in R v Wallis where Dixon J held:[9]
[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
Mr Wells further submitted that this proposition was to the effect that where there is a general power which is not the subject of limitations and qualifications, and a special power which is subject to limitations and qualifications, it is not possible to exercise the general power to do that which is limited by the special power. Mr Wells also submitted that this proposition had been supported by a number of authorities.[10] He argued that the specific legislative intent indicated in the combined amendments modified the more generally expressed power of the court in s 30(1), which enabled backdating. This process, in his submission, was inappropriately using the power to modify the clearly expressed intention of the legislature.
[8] Transcript page 10.
[9] (1949) 78 CLR 529, 550.
[10] See Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 678 (Mason J, with the Court agreeing); Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, 171-172 (Mason CJ, Deane, Gaudron and McHugh JJ), 181-182 (Dawson J); Saraswati v The Queen (1991) 172 CLR 1, 23-24 (McHugh J with Toohey and Gaudron JJ agreeing); David Grant & Co Pty Ltd v Westpac (1995) 184 CLR 265 at 276 (Gummow J, with the Court agreeing).
In addition, Mr Wells submitted that support for his interpretation was also reflected in the Second Reading Speech in which the Attorney-General stated:[11]
The bill requires sentencing courts to give primary consideration to the need to protect the public from an offender’s criminal acts. The bill introduces minimum non-parole periods for major indictable offences resulting in the death or total incapacity of the victim. … We think these measures are necessary to protect the South Australian public, whether as individuals or as a whole, from dangerous criminals. In proposing the bill, the state government is keeping its pledges to South Australia. …
…
The Rann Government will introduce minimum non-parole periods for major indictable offences resulting in death or total permanent incapacity of a victim. In these cases the offender should be required by the court to serve four fifths of his or her head sentence, unless the defence can establish that there are truly exceptional circumstances that justify a lower non-parole period. In the case of mandatory life sentence for murder, the offender should be required to serve a minimum of 20 years, unless the defence can demonstrate truly exceptional circumstances that justify a lower non-parole period.
[11] South Australia, Parliamentary Debates, House of Assembly – Criminal Law (Sentencing) (Dangerous Offenders) Amendment Bill, 8 February 2007, (The Hon M. J. Atkinson, Attorney-General).
In my view, the accused’s submission as to the interpretation and application of the legislation is flawed for a number of reasons. First, where an offence has a mandatory minimum non-parole period, s 32A(2)(b) gives the Court the power to fix a “shorter non-parole period”, but this power is limited by the “special exceptions” identified in s 32A(3). I note that the shortening of a non-parole period is different from backdating. The section has nothing to say about backdating, which if used to take into account time spent in custody, would not result in a shortening of the non-parole period. The prisoner at the end of the period would still have served a period of a minimum of 20 years non-parole. Backdating in this circumstance simply allows a person to have taken into account an actual period already served in custody as part of the overall sentence. The sentence would still indicate that the period of 20 years or more would be served, but was backdated to reflect time already served.
Second, the Amending Act does not explicitly, or even implicitly, seek to alter the provisions of s 30(1) so as to change the historical sentencing practice with regard to either backdating or ante-dating sentences pursuant to that section. There is no basis for reading down the broad provisions of s 30(1) so that the sentencing principles are inapplicable to mandatory imprisonment sentences. Whilst the general rule of interpretation of statutes is that specific provisions take precedence over more generally expressed provisions, this rule has no application in this circumstance as the two sections are concerned with different aspects of sentencing.
Third, I see no reason why the approach taken by the Full Court in R v Colson[12] is not still applicable.
[12] (1999) 73 SASR 407.
Finally, the second reading speech does not indicate that there should be no backdating. For reasons given earlier, backdating to take account of time spent in custody does not mean that a non-parole period would be less than the expressed minimum.
In summary in relation to the first two arguments of the accused, I do not consider that the combined amendments per se would prevent the court from backdating a sentence of murder to take account of a period spent in custody by application of the power contained in s 30(1) of the Sentencing Act.
The third argument of the accused was that because of the prescription of a mandatory minimum period of imprisonment of 20 years for murder, this could not allow appropriate accommodation to be made for the common elements of offending in relation to wounding with intent to cause grievous bodily harm and murder. Reliance for this submission was placed on certain passages from the High Court decision of Pearce v R (“Pearce”).[13] The circumstances in that case were that a prisoner was sentenced inter alia in respect of two offences under different sections of the Crimes Act 1900 (NSW). These two offences had common elements. In both offences the same maximum statutory imprisonment term applied, namely 25 years. The sentencing judge imposed the same period of imprisonment on the prisoner with respect to each offence, namely 12 years, less time already served, and then made the two sentences concurrent. The High Court held that this amounted to double punishment. McHugh, Hayne and Callinan JJ discussed the principles of double punishment and then concluded as follows:[14]
[13] (1998) 194 CLR 610.
[14] Ibid, 623 – 624 [40] – [49].
[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
[41] In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing in s 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim. Nor do we consider that any such intention can be gathered from s 57 of the Interpretation Act 1987 (NSW). As stated above, that section merely supplements and does not supplant the practice or rule with which we now deal.
[42] It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.
[43] The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
[44] Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
45] To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
[48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.
[49] Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against "a sentence" it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the Court "is of opinion that some other sentence ... is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor”. [References omitted and emphasis added]
Mr Wells, in reliance on the above passages of the majority reasoning, in particular paragraphs [43] and [49], submitted that the Court in the present case was prevented from backdating a sentence of imprisonment for murder to the same date as the commencement of the sentence of wounding with intent to cause grievous bodily harm because in his words: [15]
[B]y backdating one is prescribing that the sentence for murder, including the non-parole period, has commenced at the same time as the sentence for wounding with intent in circumstances where there are many common elements.
[15] Transcript page 5.
He also submitted that the High Court reasoning also prevented the sentences in this case from being made concurrent.
On this point, Mr Hinton QC, counsel for the respondent, submitted that the question of double punishment that arose in Pearce did not arise if the Court had the power to backdate the sentence, make it concurrent and then look at totality. With respect to the “totality principle”, Mr Hinton referred to the decision of the High Court in Mill v The Queen where the Court held unanimously:[16]
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’.”
… 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.
[16] (1988) 166 CLR 59, 62-63.
Thus, Mr Hinton reinforced that the Court may fix an appropriate sentence for each offence and aggregate them before proceeding with the issue of concurrency and thereafter the Court may invoke the totality principle. This approach was endorsed in the recent High Court decision of Johnson v R, where Gummow, Callinan and Heydon JJ held:[17]
The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.
[17] (2004) 205 ALR 346, [26].
I do not agree that the reasoning of the High Court in Pearce prevents concurrency by itself. The passages of the majority reasoning set out in paragraph [29] above indicate quite clearly that the major focus in that case was the fact that the sentencing judge imposed exactly the same penalty for each offence, overtly failing to take into account the common elements of each offence. This was further reinforced when the orders were made for the sentences to be concurrent. The result was that the sentences were identical with no adjustment for the common elements and therefore there was double punishment.
Thus, the approach taken in the aforementioned cases does not, in my view, prevent concurrency of sentencing for murder in this case. Further, this approach does not render the task of backdating of any sentence will result in a court failing to take into account common elements between the offence of wounding with intent to cause grievous bodily harm and murder. In particular, in the case of the accused, it would not prevent a sentence of murder from being backdated to 26 September 2002 and to be served concurrently with the sentence of seven years with four years non-parole already imposed by Mullighan J. It would also not prevent the accused from having the additional period beyond the non-parole period which he has spent in custody also being accommodated, potentially as a consequence of the application of s 30(2), or if not, s 30(1) of the Sentencing Act.
Another matter also raised in the course of argument before me was whether there could be any such backdating of a period of sentence for murder, to a date earlier than the date upon which the offence of murder crystallised, which was not until death occurred on 28 June 2004. In relation to this argument, I note that there are common ingredients of the offence of wounding with intent to cause grievous bodily harm and those of murder as contained in my earlier reasons,[18] and those of the Court of Criminal Appeal.[19] These ingredients would have occurred at the time of the stabbing on 24 September 2002. The death, which occurred later, is a causal element relying on the proof of additional matters. In such circumstances the Court would not be prevented from backdating the term of imprisonment to reflect the common ingredients. To do otherwise, in my view, would offend the principles set forward in the case of Pearce.[20] Indeed, if one returns to the concerns of the Chief Justice in R v Colson,[21] this situation would amount to “exceptional circumstances” which appropriately should be taken into account by the Court in fixing sentence in this case, if the accused is convicted of murder.
[18] R v P, NJ [2006] SASC 309, [33] [40].
[19] R v P, NJ (No 2) [2007] SASC 135, [18].
[20] (1998) 194 CLR 610.
[21] (1999) 73 SASR 407.
Conclusion
Therefore for the above reasons, I reject the accused’s arguments and conclude that there is no warrant for a permanent stay of these proceedings on the basis that he would be exposed to double punishment if found guilty of murder. Consequently, I dismiss the Rule 8 application dated 5 February 2008.
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