R v Place

R v PLACE
[2002] SASC 101
Court of Criminal Appeal: Doyle CJ, Prior, Lander, Martin and Gray JJ

DOYLE CJ, PRIOR, LANDER and MARTIN JJ The appellant pleaded guilty to six offences of armed robbery and four of failing to comply with a bail agreement. He also requested that three offences of illegal use and two of threatening with a firearm be taken into account. The learned sentencing judge imposed a head sentence of 11 years and six months and fixed a non-parole period of seven years and six months. The appellant appeals against both the head sentence and the non-parole period on the basis that they were manifestly excessive. In addition, the appellant asserts that the sentencing process was attended by errors of principle.
The sentencing judge adopted what has been called a “two-stage approach”. It is appropriate to set out the relevant parts of his Honour’s remarks:
“I propose to make use of S18A of the Criminal Law Sentencing Act and impose one sentence in relation to all matters.
Armed robbery in circumstances such as these normally attracts a head sentence of six to eight years.
In the circumstances of the six offences of armed robbery, together with the matters for which consideration is sought, and the offences of breach of bail charged on complaint, I would start with a sentence of 32 years imprisonment. The principle of totality requires that this be reduced. I consider an appropriate starting point is 22 years imprisonment.
From this you are to receive credit for the matters I have mentioned; your confession, which enabled the solving of several offences and saved significant police and court time, your subsequent immediate pleas of guilty and acknowledgement of the other considerations and your contrition.”
The sentencing judge then referred to an authority which indicated that the reduction for the plea and co-operation should be in the order of 40 per cent. He said that further credit should be given for the appellant’s involvement in the Drug Court programme. Allowing for all of those matters, his Honour arrived at a head sentence of 12 years, from which he deducted a period of six months as a reflection of time already spent in custody and the deprivations of home detention bail. By this process his Honour arrived at the head sentence of 11 years and six months imprisonment.
The appellant’s complaints about the approach of the sentencing judge may be summarised as follows. First, that his Honour erred in applying a “tariff” for armed robbery based purely on the objective circumstances of the crimes without regard to the individual circumstances of both the crimes and the appellant. Associated with this complaint was the suggestion that the South Australian Court of Criminal Appeal has erred in its approach to fixing a “tariff” in respect of the crime of armed robbery. Secondly, that his Honour erred in considering the principle of totality after identifying a starting point of 32 years imprisonment based on objective considerations. Thirdly, that it was an error of principle to adopt a two-stage process which involved arriving at a starting point based on objective considerations and then making deductions from the starting point to reflect circumstances of mitigation. Finally, that it was an error to identify a specific reduction to reflect co-operation with the authorities, early pleas of guilty and contrition.
Sentence was imposed on 12 September 2001. Three days later the High Court delivered judgment in Wong v The Queen [2001] HCA 64; (2002) 76 ALJR 79. The Court was concerned with a guideline judgment published by the New South Wales Court of Criminal Appeal. Gaudron, Gummow and Hayne JJ delivered a joint judgment in which they held that the guideline judgment went beyond the jurisdiction of the Court of Criminal Appeal. In the course of their remarks they made some observations which form the basis of the appellant’s suggestion that the South Australian Court of Criminal Appeal has erred in its approach to fixing a standard of penalty in respect of the crime of armed robbery. In addition, their Honours disapproved of the particular “two stage approach” to sentencing that was under consideration in Wong and expressed the view that the approach was “wrong in principle”. Their Honours also appear to have disapproved of the practice of identifying a specific reduction given in respect of a plea of guilty.
In view of the decision in Wong, the issues raised in this appeal require the Court to examine its approach to the fixing of a standard for the crime of armed robbery and to determine whether it is an error for a sentencing judge to identify a specific reduction for a plea of guilty and whether this Court has been in error in encouraging sentencing courts to do so.
Wong – Guideline Judgments
In Wong the Court of Criminal Appeal of New South Wales was concerned with two appeals by the Crown against sentences imposed for the offence of being knowingly concerned in the importation of a prohibited import. The Court acceded to a submission by the Director of Public Prosecutions that it was appropriate to issue a guidelines judgment with respect to the appropriate penalties for the offence under consideration in accordance with the practice of the New South Wales Court of Criminal Appeal: R v Jurisic (1998) 45 NSWLR 209. The Court was comprised of five judges who were unanimous in their view that the sentences imposed were manifestly inadequate and that appellate intervention was required. The sentences of 12 years imprisonment with non-parole periods of seven years were increased to 14 years imprisonment with non-parole periods of nine years.
Four judges considered it was appropriate to publish a guidelines judgment. One judge dissented on that issue. The guidelines published by the majority were as follows:
“·     Low level traffickable quantity -                 5 to 7 years
(2 grams–200 grams)
·       Mid level traffickable quantity   -                 6 to 9 years
  (200 grams-1 kilogram)
·       High range traffickable quantity         -       7 to 10 years
  (1 kilogram-1.5 kilograms
  (heroin)
  1 kilogram-2 kilograms
  (cocaine)
·       Low range commercial quantity         -       8 to 12 years  1.5 kilograms-3.5 kilograms
  (heroin)
  2 kilograms-3.5 kilograms
  (cocaine)
·       Substantial commercial quantity         -       10 to 15 years
  (3.5 kilograms-10 kilograms).”
The guidelines were not applied by the Court of Criminal Appeal to the matter under consideration. As Gleeson CJ pointed out, the guidelines related to couriers and not to people in the position of the offenders. As the guidelines were not applied by the Court of Criminal Appeal, his Honour reached the view that the decision of the Court had not been shown to be in error. However, his Honour was of the view that the guidelines could be validly criticised. He said [31]:
“31. Even so, there is, in my view, a valid criticism to be made of the guidelines, although it is not one that has a bearing on the outcome of the present appeals. There is utility in addressing the criticism, because of the danger that in future cases, where the guidelines are applied, error may result. I agree with the contention of the appellants that, making due allowance for all the qualifications with which the guidelines were accompanied, there is a substantial risk that they may result in an approach to sentencing which is inconsistent with the requirements of s 16A of the Crimes Act 1914 (Cth). Insofar as they are a mere compilation or classification of sentencing information, then they are either accurate or inaccurate, helpful or unhelpful. But they are clearly intended to be more than that. The effect they will have, is to constrain the exercise of sentencing discretion. This is a risky undertaking when there is a federal statute which spells out in detail the matters to be taken into account by a sentencing judge. The statute is important both for what it says and for what it does not say. In particular, the guidelines, in their specificity, and in the significance they attach to the objective fact of the quantity of heroin imported, which is broken down into sub-categories which have no statutory foundation, are likely to lead to error. To take one example, which is not uncommon, although it has nothing to do with the present case, it may be that an offender’s state of information and belief about the quantity of heroin imported is much more significant than the objective fact as to quantity. A given judge, looking at the guidelines, but also taking account of all the qualifications expressed, might not necessarily take an approach inconsistent with s 16A. But there is a real risk that another judge might.” (our emphasis)
As to the proper role of the Court of Criminal Appeal, Gleeson CJ observed [8]-[10]:
“8.    One of the reasons for giving a Court of Criminal Appeal jurisdiction of the kind conferred by s 5 of the Criminal Appeal Act is to secure consistency in sentencing [Everett v The Queen (1994) 181 CLR 295 at 306 per McHugh J]. In R v Osenkowski [(1982) 30 SASR 212 at 213], King CJ, in a passage that has been quoted with approval many times, said:
“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
9.     McHugh J in Everett v The Queen [(1994) 181 CLR 295 at 306], referred to the role of prosecution appeals when “a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence”. Whether one talks in terms of a range of appropriate sentences or, like Canadian courts, in terms of a starting-point for consideration, appellate courts, both for the purpose of making and explaining their own decisions, and for the guidance of primary judges, may find it useful to refer to information about sentences that have been imposed in comparable cases, and to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. In some jurisdictions, such as the United Kingdom, this has been undertaken more often, and with greater specificity, than in others. But it has also been done in Canada [R v McDonnell [1997] 1 SCR 948], Hong Kong [Chan Chi-ming v The Queen [1979] HKLR 491], and New Zealand [R v N [1998] 2 NZLR 272]. In 1992 the Council of Ministers of the Council of Europe approved recommendations concerning sentencing consistency, which included reference to guidelines judgments by superior courts when that is appropriate to the constitution or the traditions of the relevant legal system [Council of Europe, Recommendation No R (92), 17, Consistency of Sentencing (Strasbourg, 1993)]. In some jurisdictions there is statutory backing for the practice; in others there is not. The history of the practice, with particular reference to what had been done in the past in New South Wales, and the reasons for recent developments in that jurisdiction, may be seen in the judgment of Spigelman CJ in R v Jurisic [(1998) 45 NSWLR 209. See also von Hirsch and Ashworth (eds), Principled Sentencing, Readings on Theory and Policy, 2nd ed (1998) at 212-239].
10.    The increasing size of the judiciary, and the legal profession, is a factor in the importance which is attached to the problem of inconsistency, and the need for appellate guidance. In the days when criminal justice was administered by a relatively small group of judges, it was easier to maintain consistency. The range of likely penalties for common offences was well known, and significant departures from that range were readily identified. Idiosyncratic decision-making was not difficult to recognise. Now, at least in New South Wales, a large number of judges (and acting judges) sentence offenders, and there is a growing need for the Court of Criminal Appeal to give practical guidance to primary judges. The form that such guidance might properly take is an important issue in the administration of criminal justice. If there is insufficient guidance, and resulting inconsistency, public confidence in the value of discretionary sentencing will suffer.” (our emphasis)
Gaudron, Gummow and Hayne JJ concluded that, when read as a whole, the reasoning of the Court of Criminal Appeal revealed that there was “a single chain of reasoning adopted in formulating the guidelines and in disposing of the Director’s appeals” [54]. Their Honours identified two steps in the court’s reasoning [56]:
“[T]hat the result of sentencing an offender is an aspect of the discretionary decision and that the weight of the narcotic imported is the chief factor to be taken into account in fixing the sentence to be imposed on a person knowingly participating in the importation.”
Their Honours were of the view that both steps were flawed. They concluded, therefore, that not only was the formulation of the guideline table affected by the errors, but the orders disposing of the Director’s appeals were similarly affected.
The joint judgment emphasised that a judge sentencing an offender for a Commonwealth offence must give effect to Part IB of the Commonwealth Crimes Act. In particular, s 16A identifies a diverse group of matters which the court is required to take into account. Their Honours considered that the “grid” offered by the guideline, a grid which they observed was “founded entirely on gravity on the offence as measured only by the weight of narcotic concern”, was a departure from the legislative command of s 16A that the sentencer had to take into account all of the factors identified in s 16A. That section is expressed in terms similar to s 10 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
By way of contrast to the strictures of the guideline under consideration, Gaudron, Gummow and Hayne JJ compared what was said by the majority of the Full Court of this State in Police v Cadd (1997) 69 SASR 150. In Cadd the Full Court gave authoritative guidance to magistrates about the type of punishment that should ordinarily be imposed by magistrates when sentencing persons convicted of driving a motor vehicle while disqualified from holding or obtaining a driving licence. The guidance related to actual imprisonment rather than a suspended sentence and no suggestion was made about the length of the sentence that should be imposed. Their Honours observed that the real content of the guidance lay in the reasons which were given for the stated conclusion. Their Honours said [63]:
“63. The reasons focused upon the nature of the offence, the consequences of its commission, and the purpose of punishing its commission. Thus, Doyle CJ identified the offence of driving while disqualified as “erod[ing] disqualification as a means of punishment” [(1997) 69 SASR 150 at 162], especially when regard was had to the fact that a person driving while disqualified would ordinarily be detected only when the attention of police was attracted for some other reason. Reference was made to various other relevant considerations that might bear upon sentencing, such as the offender’s character, age, contrition and the like, or the impact of imprisonment on the offender’s employment [(1997) 69 SASR 150 at 168], but the detail of the treatment of these matters is not important. Having regard to the nature of the offence, the consequences of its commission, and the purpose of punishing its commission, Doyle CJ concluded that deterrence must predominate in sentencing for the offence [(1997) 69 SASR 150 at 166]. That being so, as Doyle CJ said, [(1997) 69 SASR 150 at 167], “circumstances justifying suspension [of a term of imprisonment] are unlikely to be found in what are routine or run of the mill aspects of the circumstances of this offence.” What is to be noted is that the Court articulated the reasons which it had for disposing of the appeals before it by reference to the principles which informed those dispositions. It is those principles which properly guide future sentencers.” (our emphasis)
After referring to the relevant features associated with the offence of being knowingly concerned in the importation of heroin, their Honours said [65]:
“65. To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences.”
Later in their judgment their Honours said [83]:
“83. For the reasons that have already been given, the guideline stated in the present matters was intended to have prescriptive effect. As was said in McDonnell, it was to be treated as if departure from it would evidence an error of principle by the sentencing judge. Again, for the reasons given earlier, there is an important distinction between a court articulating the principles which do, or should, underpin the determination of a particular sentence and the publication of the expected or intended results of future cases. Articulation of applicable principle is central to the reasoned exercise of jurisdiction in the particular matters before the court. By contrast, the publication of expected or intended results of future cases is not within the jurisdiction or the powers of the court.”
Kirby J confined his conclusion to the opinion that the guidelines formulated by the Court of Criminal Appeal were “incompatible” with the terms of the applicable Federal legislation [149]. However, his Honour specifically agreed with the observations of Gleeson CJ at [5]-[12], which paragraphs encompass those which we have cited concerning the role of the Court of Criminal Appeal.
Callinan J agreed with the Chief Justice that the Court of Criminal Appeal did not apply the guidelines in allowing the Crown appeal. Without deciding the question, his Honour doubted that the guidelines in question were a proper exercise of the judicial power of the Commonwealth because the guidelines appeared to have a “legislative quality” and they spoke “prospectively”. His Honour noted that the difference between guideline judgments “and judgments setting forth principles of the type which courts of criminal appeal have delivered for almost a century is more than one of mere nomenclature” [167].
Read literally, the remarks in the joint judgment that “the publication of expected or intended results of future cases is not within the jurisdiction or the powers of the court” and that the Court of Criminal Appeal had “no jurisdiction in respect of sentences passed or to be passed on others” might be taken as meaning that a Court of Criminal Appeal does not have jurisdiction to indicate the standard of penalty to be applied in an ordinary or usual case of armed robbery or any other offence. However, those remarks were made in the context of consideration of a guideline that was intended to have a prescriptive effect on future cases and from which departure would have been regarded by the Court of Criminal Appeal as evidence of an error of principle by the sentencing judge. Such a guideline is to be contrasted with the well accepted role of the Court of Criminal Appeal in establishing and maintaining adequate standards of punishment for crime. This is the role identified by Gleeson CJ in Wong in the passages cited earlier and it is a role that has been approved by the High Court: Everett v The Queen (1994) 181 CLR 295. We do not understand their Honours as intending to deny the existence of that jurisdiction in courts of criminal appeal.

The critical question is whether the jurisdiction to establish and maintain adequate standards of punishment for crime includes the identification of a standard of penalty by indicating a range of sentences applicable in ordinary cases of particular crimes. As Gleeson CJ pointed out in Wong, there are sound reasons why in exercising the jurisdiction appellate courts may find it useful “to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence” [9].
South Australia – Sentencing Standards
The South Australian Court of Criminal Appeal has not issued any guideline judgment in prescriptive terms of the type with which the High Court was concerned in Wong. On a number of occasions the Court has determined that it is inappropriate to identify a sentencing standard for particular offences: R v Weinman (1987) 49 SASR 248 at 248 (manslaughter); R v Hitchens (1995) 184 LSJS 333 at 336 (sexual assault); R v Staker [2001] SASC 266 at [22] (aggravated serious criminal trespass); Yardley v Betts (1979) 22 SASR 108 at 113 (assault); R v Cavanagh [1999] SASC 418 at [20] (fraudulent conversion). In respect of drug offences and armed robbery, however, the Court has identified standards.
In R v Mangelsdorf & Ors (1995) 66 SASR 60, the Court was concerned with applications by the Director of Public Prosecutions seeking leave to appeal against sentences for offences committed against the Controlled Substances Act 1984 (SA). Doyle CJ, with whom Prior and Williams JJ agreed, spoke of the Court of Criminal Appeal having established standards for the punishment of crimes of the type under consideration. His Honour identified the reasons for the approach taken by the Court and referred to a number of previous decisions which provided guidance as to appropriate sentences in particular circumstances. However, in referring to the standards of punishment which had been established by various appellate decisions, the Chief Justice stressed the discretionary nature of the sentencing process and that the standards were no more than guidance. His Honour said (p 66):
“It has often been said, and needs no repeating, that it is for the sentencing judge to take into account all material matters in deciding upon the appropriate sentence to be imposed. Scope must be allowed for the sentencing judge’s assessment of those matters, and for the understanding of the offence and of the offender which the sentencing judge obtains. The latter, in particular, may be influenced by aspects of the sentencing process in respect of which the sentencing judge is better placed than is a court of criminal appeal to make an appropriate assessment of what should be done. As King CJ said in Osenkowski (at 212-213):
“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”
But in the end the standards which this Court determines must be given appropriate weight. Departure from them must be justified by some aspect of the particular case. The standards are not, and are not intended to be precise. But they do provide clear guidance.”
In Cadd, five judges of the South Australian Court of Criminal Appeal confirmed the role of the appellate court in setting standards of penalty. Doyle CJ said (p 165):
“It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type.”
The Chief Justice again pointed out that standards are established for general guidance and cited with approval the remarks of Cox J in R v King (1988) 48 SASR 555 at 557:
“In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. The same notion must qualify, in my opinion, any inclination to apply the policy of s 302 in a purely mechanical way. It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same.”
Doyle CJ then observed that when the appellate court establishes a standard, “the court does not establish a tariff which can be routinely applied to individual cases.” His Honour also said (p 167):
“The ordinary punishment is applicable to the ordinary case. The ordinary punishment is an approximate standard to be applied making due allowance for the circumstances of the particular case.”
As previously mentioned, in the joint judgment in Wong their Honours approved of the approach and type of guidance given by Doyle CJ in Cadd. While their Honours noted that the guidance in Cadd related to actual imprisonment rather than a suspended sentence and that no suggestion was made about the length of the sentence that should be imposed, the remarks of Doyle CJ as to the role of the appellate court encompassed identifying a range of penalties for an ordinary case. His Honour specifically referred to Mangelsdorf and to the court fixing a range in relation to the offence of armed robbery in R v Spiero (1979) 22 SASR 543.
Another court of five judges was also called upon to consider the role of the appellate court in setting appropriate standards in Kovacevicv Mills (2000) 76 SASR 404. The appellant had pleaded guilty to a number of offences under the Social Security Act 1991 (Cth) and was sentenced to a term of imprisonment. On appeal the appellant contended that a previous decision of this Court in R v Cameron (1993) 171 LSJS 305 was erroneous because it held that considerations of deterrence were to outweigh all other considerations. It was submitted that such an approach was contrary to general sentencing principles which require that all relevant factors be considered in each case. In the joint judgment of Doyle CJ, Mullighan, Bleby and Martin JJ, the judgment of Doyle CJ in Cadd as to the proper function of the appellate court in setting appropriate standards was approved. That approval was followed by this observation (p 410):
“However, we agree that a sentencing standard cannot dictate a result in every case, or remove the need for consideration of the facts of each case and the application of the relevant considerations to those facts.”
The joint judgment then referred to the remarks of Cox J in King which are cited earlier in these reasons. Specific approval was also given to the remarks of Cox J, with whom Olsson and Mullighan JJ agreed, in R v Hooper (1995) 64 SASR 480 at 491:
“It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upward departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range: see R v King (1988) 145 LSJS 278 at 280; R v Prendergast (1988) 147 LSJS 486 at 487-488; Nixon (1993) 60 A Crim R 83 at 88-89. The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence – the principle of proportionality, as it has been called. Mr Peek, as I understood him, submitted that the sentencing court should arrive provisionally at an appropriate sentence according to the tariff for the particular offence, the offence being looked at objectively, as it were, for this purpose. The court may then reduce that sentence because of the offender’s good record (or for other reasons) but it may not properly increase it because of his bad record, for to do that would be to punish him a second time for his antecedent crimes. That approach, in my opinion, is fallacious. It denies to the tariff its proper flexibility and it ignores the need on occasions to impose a more severe sentence on a particular offender because his record shows that the factor of personal deterrence, say, or the need to protect the public cannot be properly accommodated in any other way.”
After referring to those passages from King and Hooper, the joint judgment continued (pp 410-411):
“We also repeat what Doyle CJ said in Cadd at 166 about the purpose of establishing a sentencing standard, in a system in which sentencing is an individualised process:
“The function of establishing appropriate standards is an important aspect of ensuring, as best one can, that adequate standards of punishment are observed. Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.”
We agree with the further submission advanced from Mr Kourakis that in a case such as the present, considerations of deterrence cannot displace all other considerations, either at the outset or at the conclusion of the sentencing process. All relevant considerations must be taken into account, and given due weight. The establishment of a sentencing standard by this Court cannot require a judge or magistrate, when imposing sentence, to take into account only one of the considerations relevant to sentencing, be it deterrence or some other consideration. However, consistently with that, it is appropriate for this Court to indicate that a certain type of offending is likely to attract a certain type of punishment, and in particular imprisonment, and to indicate an appropriate sentence range for particular types of offending.” (our emphasis)
As to the offence of armed robbery, the origins of a standard of penalty can be traced from 1979 when the Court of Criminal Appeal delivered a decision in R v Spiero (1979) 22 SASR 543. In 1988, in R v Prendergast (1988) 147 LSJS 486 King CJ, with whom Jacobs and von Doussa JJ agreed, reviewed a number of authorities. His Honour concluded that a pattern had emerged indicating a standard of penalties in the range of eight to 12 years applicable to the “general run of cases”. By 1995 when the Court of Criminal Appeal delivered its decision in R v Drumgoon (unreported No. S5382 delivered 13 December 1995), the legislation under which sentence was imposed had changed. Perry J, with whom Cox and Williams JJ agreed, noted that the previous “tariff” for armed robbery was eight to 12 years imprisonment. His Honour said that following the change in the legislation, the “tariff” should be regarded as in “the order of six to eight years”. However, his Honour also observed that a “so-called tariff” should not be applied inflexibly and specifically agreed with the observations of Cox J in Hooper which are cited earlier in these reasons. The remarks in Hooper were again approved in R v Lumsden [2000] SASC 49.
In our opinion, the approach taken by this Court to the setting of standards of penalty is sound in principle and forms an important part of the proper role of the Court of Criminal Appeal. We respectfully agree with the observations of Gleeson CJ in Wong in the passage earlier cited. Where this Court has set standards of penalty, it has expressly identified the standards as applying to the ordinary cases and explained the reasons for setting the standards. In each instance, the nature of the “ordinary case” has been identified and guidance given concerning the factors of particular relevance in the exercise of the sentencing discretion for particular offences. This Court has repeatedly made it plain that all relevant factors must be considered and that the guidance given by way of identifying a standard is not to be taken as detracting from the duty of the sentencer to assess the individual circumstances of each case and to impose a sentence appropriate to those individual circumstances. In each instance, when disposing of appeals that involve identifying a standard, this Court has had regard to all relevant factors and did not adopt a mechanical approach or an approach inappropriately fettered by the standard.
Finally, it is appropriate to make the following observations about the terminology that has, on occasions, been used. The word “tariff” is capable of carrying with it the concept of a fixed penalty. That connotation explains why, in numerous appellate decisions, reference is made to a “so-called tariff”. In our opinion it would be preferable to avoid using the word “tariff” and to refer to sentencing standards which are intended to apply to ordinary cases and which are given for the guidance of sentencing courts.
Similarly, on occasions, the appellate court has expressed itself in terms that suggest that departure from a sentencing standard is only justified in “exceptional” cases or circumstances. Again, the word “exceptional” has the capacity to mislead. Properly understood in this context it refers only to a case that is not ordinary in the way that the appellate court has identified an ordinary case as involving a certain type of offence committed by a certain type of offender. However, in view of the capacity to mislead, in our view it would be preferable not to suggest that departure from a sentencing standard is only justified if the case or circumstances are “exceptional”.
High Court – Synthesis/Two-Stage Process
As mentioned Gaudron, Gummow and Hayne JJ referred to a departure from the requirements of s 16A of the Crimes Act 1914 (Cth) as the first reason why the Court of Criminal Appeal was in error. Their Honours identified a second reason concerned with the “two-stage approach” to sentencing [74]-[78]:
“74. Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest “a mathematical approach to sentencing in which there are to be “increment[s]” to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a “two stage approach” to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
75. It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis”. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
76.    In R v Thomson [(2000) 49 NSWLR 383 at 396-411 [54]-[113]], Spigelman CJ reviewed the state of the authorities in Australia that deal with the “two-stage” approach of arriving at a sentence, in which an “objective” sentence is first determined and then “adjusted” by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender’s place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to “discount” a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred to in R v Gallagher [(1991) 23 NSWLR 220 at 228] when he said that:
“It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.”
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.
77.    The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.
78.    Numerical guidelines either take account of only some of the relevant considerations or would have to be so complicated as to make their application difficult, if not impossible. Most importantly of all, numerical guidelines cannot address considerations of proportionality. Their application cannot avoid outcomes which fail to reflect the circumstances of the offence and the offender (with absurd and unforeseen results) if they do not articulate and reflect the principles which will lead to the just sentencing of offenders whose offending behaviour is every bit as diverse as is their personal history and circumstances.” (footnotes omitted)

The two-stage approach that their Honours were considering was defined by their Honours as “a mathematical approach to sentencing in which there are to be increments to, or decrements from, a predetermined range of sentences”. It was with the “mathematical approach to sentencing” in mind that their Honours used as an “example” how a specific “discount” for a plea of guilty was to ignore difficulties of the kind to which Gleeson CJ referred in R v Gallagher (1991) 23 NSWLR 220 at 228. As will be seen later in these reasons, in our opinion the remarks of Gleeson CJ in Gallagher do not undermine the validity of the current practice in South Australia with respect to identifying a reduction for a plea of guilty.
Kirby J addressed the question of the two-stage approach to sentencing briefly and said that he did so only because it was referred to in the joint reasons. He adhered to the views that he expressed in AB v The Queen (1999) 198 CLR 111 at [102] that a greater degree of transparency in the sentencing process is appropriate and that it is too late and undesirable to return to “unexplained judicial intuition”.
In AB, McHugh and Hayne JJ expressed views adverse to a “two-tiered approach” to sentencing. McHugh J said that a process which begins with an “objectively determined sentence which is then arithmetically adjusted to take account of various factors” is a process which is “plainly unsuited to the sentencing process in many cases” [16]. His Honour also made the following observation [16]:
“If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case.”
Neither of their Honours dealt specifically with the practice in South Australia of nominating a specific reduction for a plea of guilty, as part of a process in which all relevant factors are considered, but the effect of one factor on the sentence is quantified.
In R v Powell [2001] SASC 450, Perry J expressed the view that the majority view of the High Court must now be taken to mean that to arrive at a sentence by taking into account all relevant matters except the plea of guilty, and then to reduce that sentence by a specific amount on account of the plea of guilty, is an approach that embodies an error of principle. However, Prior and Besanko JJ were of a contrary view and held that the current practice of identifying the reduction for a plea of guilty should continue. For the reasons that follow, in our opinion Prior and Besanko JJ were correct.
South Australia – Discount for Plea of Guilty
In 1979, King CJ delivered a judgment in R v Shannon (1979) 21 SASR 442 which has been consistently followed in South Australia and cited with approval by the Federal Court and interstate Courts of Criminal Appeal: R v Schumacher (1981) 3 A Crim R 441 at 448; R v Rasic (1983) 10 A Crim R 299 at 303; R v El Karhani (1990) 21 NSWLR 370 at 382; R v Dodd (1991) 57 A Crim R 349 at 351; R v Laurentiu (1992) 63 A Crim R 402 at 410. The Chief Justice identified the circumstances in which sentencing courts in South Australia were entitled to give weight in mitigation to pleas of guilty. His Honour set out a number of propositions (pp 452-453):
“In my opinion this Court should now lay down the following propositions:
(1) A plea of guilty may be taken into account in mitigation of sentence where –
(a) it results from genuine remorse, repentance or contrition, or
(b)it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,
and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve.
(2)A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.
(3)In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.
(4)In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.
(5)The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge.”
Following Shannon, it became common practice for sentencing courts to state in general terms that a plea of guilty had been given weight in mitigation. Initially, however, sentencing courts did not quantify the specific reduction given in recognition of a plea of guilty. Considerable scepticism existed amongst offenders and their advisers as to whether a plea of guilty was given appropriate recognition in mitigation and, in particular, whether the weight given in mitigation varied to any significant degree according to when the plea was entered and the subjective circumstances accompanying it. A comparison of similar cases was an inadequate response to the scepticism because of varying circumstances and the range of the discretion available to sentencing judges.
By 1991, the Court of Criminal Appeal was encouraging sentencing judges to identify the specific reduction given as a consequence of a plea of guilty. In R v Smith (unreported No. S3178 delivered 10 December 1991) King CJ, with whom White and Bollen JJ agreed said:
“The plea of guilty is of particular importance and it has often been stressed that it is necessary not only that judges should make a concrete and substantial allowance for the plea of guilty, but that it should be apparent to offenders that their plea of guilty has earnt them a substantial discount. The learned judge did not indicate to what extent allowance had been made for the plea of guilty.”
In 1992, King CJ delivered similar remarks in the context of both a plea of guilty and co-operation with the authorities by giving evidence: R v Harris and Simmonds (1992) 59 SASR 300. In a judgment with which Olsson and Mullighan JJ agreed, the Chief Justice said (p 302):
“It is very important, I think also, that the extent of the discount which is given on this account should be made clear by the sentencing judge. This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plead guilty, it is necessary that they, and their advisors, have a clear idea of the sort of discount which will be made on that account.
The same considerations apply to co-operation with the authorities by way of giving evidence against co-offenders. Unless it is clear to offenders that they will receive a significant benefit, and the general extent of the benefit which they are likely to receive, then it is not to be expected that the authorities will receive the co-operation which they so often need in order to enforce the law and bring other offenders to justice. I would therefore exhort judges wherever it is practical to do so in this type of case, not only to make a significant and appropriate allowance for the co-operation with the authorities, but to indicate to the prisoner the extent of the allowance which has been made.” (our emphasis)
Two months later, with the concurrence of Perry and Duggan JJ, in R v Sutherland (unreported No. S3705 delivered 16 November 1992), King CJ said (p 4):
“I think that it is unfortunate that his Honour did not indicate the extent by which he reduced the sentence which he would have otherwise imposed, in the consequence of the plea of guilty.
This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity.
General awareness of the advantage to be gained by a plea of guilty would be contributed to by judges indicating clearly, in their sentencing remarks, not only that they have taken the plea of guilty into account, but also the extent to which they have taken it into account.
I think that this court should actively encourage sentencing judges to take that course.
It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight.”
In agreeing with the Chief Justice, Duggan J said (p 6):
“I also agree with the learned Chief Justice’s remarks about the desirability of acknowledging the extent to which a plea of guilty is taken into account in the sentencing remarks. Hitherto, it has not been a common practice for judges, when sentencing, to indicate the extent to which a plea of guilty has reduced the sentence. However, as the learned Chief Justice has pointed out, in recent times the Court of Criminal Appeal has underlined the desirability of such an explanation being included in the sentencing remarks. An early intimation of a plea of guilty assists the administration of justice in a number of ways, including obviating the need for witnesses to give evidence and, in addition, allowing for a more effective administration of criminal court lists. Identifying the extent to which it has reduced a sentence assists not only in explaining the basis of the particular sentence, but in fostering awareness of the circumstances which will lead to a reduction of sentence in other cases.”
The Court of Criminal Appeal has continued to recognise the importance of identifying both the reasons for reducing a sentence and the extent of the reduction: R v Wiskich (2000) 207 LSJS 431; R v Wall and Richards (2000) 209 LSJS 135. As a consequence of the encouragement, for a number of years the vast majority of sentencing judges and magistrates have consistently identified the extent of the reduction given for a plea of guilty and co-operation with authorities.
Other States
The joint judgment in Wong referred to the task of the sentencer as to arrive at an “instinctive synthesis” of all relevant factors. Their Honours explained that the expression was used to make plain that the sentencer is required to reach a single sentence which “balances many different and conflicting features”. The expression has its origins in a decision of the Victorian Full Court in R v Williscroft [1975] VR 292. In discussing the purposes of punishment and the principles governing the fixing of sentences, the Court observed (p 300):
“Now, ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless (as it was thought to be in Kane’s Case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination.”
The approach in Williscroft has been consistently followed in Victoria. In particular, in R v Young [1990] VR 951, the Full Court expressly approved Williscroft and disapproved of a two-stage process in which the sentencing judge first determined a sentence proportionate to the crime taking into account only some of the relevant facts and then adjusted the sentence having regard to other considerations including matters personal to the offender. The firm view of the Victorian Court extended in R v Nagy [1992] 1 VR 637 to discouraging the identification of a specific allowance for co-operation and assistance by an informer. In a compelling dissent on that aspect, McGarvie J expressed the view that there were strong reasons in public policy for identifying a specific allowance and that it was a matter for the discretion of the sentencing court whether to state the amount of the reduction. After referring to the decision of the Victorian Court of Criminal Appeal in R v Morton [1986] VR 863 in which it was held that, generally speaking, while there was nothing to prohibit a court stating the amount of a reduction given in respect of a plea of guilty it was undesirable to do so, McGarvie J noted that such a view has not been taken in all cases in Victoria. His Honour referred in that regard to R v Ienco (unreported, Full Court, 29 March 1990) where, with the concurrence of Crockett and Beach JJ, his Honour identified a specific reduction for a plea of guilty when allowing an appeal and imposing sentence. Similarly, in R v Tan (1995) 78 A Crim R 300, the Victorian Court of Criminal Appeal allowed an appeal against sentence and, in re-sentencing, identified a specific reduction for the appellant’s undertaking to co-operate with law enforcement agencies. These authorities demonstrate the existence of a view by some judges in Victoria that, in some circumstances, it is permissible and appropriate for a sentencer to identify a specific reduction for a plea of guilty and co-operation with the authorities.
In R v Thomson (2000) 49 NSWLR 383 Spigelman CJ, with whom four other judges agreed, reviewed the practices and authorities in all States with respect to the approach of sentencing courts to reductions for pleas of guilty. As to the position in New South Wales, his Honour referred to a number of decisions of Hunt J in which his Honour, with the concurrence of other judges, expressed the view that while there is nothing to prohibit a court from stating the amount of a reduction for a plea of guilty, it will generally be impossible or misleading to do so. Hunt J said it would be unwise because it would only multiply the possibility of error and unnecessary because it would inevitably increase the incidence of arguable appeal points. It is noteworthy, however, that in one of these authorities Hunt J expressly excluded from his remarks the identification of reductions for assistance to the authorities. His Honour said that reductions for assistance, where they can be identified, may fall within a special category: R v Beavan (unreported Court of Criminal Appeal 22 August 1991).
After reviewing the authorities in other States, Spigelman CJ made the following observations (pp 396-397):
“The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.
… There is no reason in principle why the common law principles of sentencing could not establish other such specific exceptions to the general approach, without altering the basic character of the process.”
His Honour later said (p 411):
“The preponderant, but not unanimous view, in the Australian authorities is that it is always permissible and sometimes desirable for a trial judge to quantify the discount accorded for a plea of guilty. Some judges have indicated an opinion that it is usually desirable to do so. Different views are open as shown above.
In this respect there is no reason why the position in each State should be the same, particularly with respect to the utilitarian benefits of a plea. The relationship between the demands upon, and the resources available, to the criminal justice system will vary from one State to another. The practice of the criminal bar in advising on such matters will also differ. In this respect, variation of practice is not necessarily undesirable.
…
In view of the evidence before this Court which establishes that the objective of encouraging early pleas is not being attained, this Court should adopt a guideline designed to ensure that offenders, and those who advise them, will know that in this State a discount for a plea is in fact given on a systematic basis and that the earlier the plea, the greater the benefit. This objective will best be served if sentencing judges adopt the practice of quantifying the discount and relating the quantification in some way to the timing of the plea. This Court should promulgate a guideline which encourages sentencing judges to do this.
As Gleeson CJ and Hunt CJ said in R v Gallagher it will not always be possible or appropriate to specify a discount for a plea. Whether or not it is possible or appropriate is a matter for the exercise of the discretion of the sentencing judge. This Court should go no further than encouraging judges to do so.” (our emphasis)
Spigelman CJ referred to evidence establishing that the objective of encouraging early pleas was not being attained. His Honour was referring to research and experience indicating significant doubt amongst practitioners whether a substantial reduction was being given by sentencing judges and that there was particular scepticism as to whether an early plea was being appropriately recognised. As we have indicated, the earlier South Australian experience mirrored that of New South Wales.
The view has been expressed in Queensland that it is undesirable to identify a specific reduction for a plea of guilty. However, in R v Herford [2001] QCA 177, in allowing an appeal against sentence and re-sentencing, the Court of Criminal Appeal identified a specific reduction for a plea of guilty [22].
In Pavlic v The Queen (1995) 5 Tas R 186, a majority of the Tasmanian Court of Criminal Appeal expressed the view that it was not appropriate to nominate a specific reduction for a plea of guilty. Slicer J dissented to the extent that his Honour considered a specific reduction for external factors of “social utility and public policy” that do not involve subjective characteristics should be expressed in quantitative terms.
The prevailing view in Western Australia favours identifying the specific allowance for a plea of guilty: Verschuren v The Queen (1996) 17 WAR 467; Doherty v The Queen (unreported Court of Criminal Appeal 14 October 1997). The Western Australian Court has emphasised that the quantification of a reduction is a matter of discretion. In Verschuren, Malcolm CJ agreed with the views expressed by Slicer J in Pavlic. The following passage from the judgment of the Chief Justice, which appears immediately after his express approval of the view of Slicer J, suggests that his Honour would restrict the identification of a specific reduction to that applicable for the “social utility” value of the plea (p 473):
“Public policy considerations which apply to co-operation with the authorities extend also to a plea of guilty in appropriate circumstances. I consider, however, that a need for a qualification arises where a finding of genuine remorse has also been made. This is a subjective circumstance. It should be taken into account at the first stage.”

On more than one occasion Murray J has disagreed with any form of two-stage approach and expressed a preference for the “instinctive synthesis” approved in Young. However, in Verschuren his Honour concluded that it is not an error of principle either to adopt a two-stage approach or to decline to do so. Having observed that the task of sentencing cannot be performed meaningfully by endeavouring to describe in quantified terms the impact of each factor upon the sentencing process, his Honour said (p 491):
“And yet, each relevant factor taken into account by the sentencing judge must be identified and the weight given to it adequately described, so that all may understand the basis upon which the discretionary judgment is made. Generally speaking, it will be consistent with principle and will adequately advance the purposes of sentencing to do no more, because if that task is properly performed the offender and others will know what impact in the particular circumstances of the case the matters under discussion have had upon sentence.”
Plea – Objective and Subjective Considerations
During the submissions in this Court, senior counsel for the appellant acknowledged the advantages of identifying a specific reduction for a plea of guilty. Ultimately, he conceded that identifying a reduction for the practical value of a plea in saving costs would not infringe any sentencing principle or lead to any distortion of the sentencing process. However, he submitted that in determining the extent of the reduction it is inappropriate to take into account the subjective consideration of contrition. As mentioned, this appears to be the view favoured by Slicer J in Pavlic and by Malcolm CJ in Verschuren.
In his propositions set out in Shannon, King CJ said that a plea of guilty may be taken into account in mitigation where it results from contrition or from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial. As a consequence, in determining the extent of a reduction, for some years it has been the practice in South Australia to take into account the timing of the plea and whether or not it is accompanied by contrition and co-operation with the authorities. A plea accompanied by active assistance to the authorities is recognised as attracting the higher range of reduction. A combination of factors including contrition and co-operation was taken into account when this Court determined the extent of a reduction for a plea in R v Wiskich (2000) 207 LSJS 431 at 465. Prior J, with whom Besanko J agreed, noted that reliance on a combination of factors when referring to Wiskich in R v Powell [2001] SASC 450 at [23].
When such a combination of factors exists, it is not the practice to attempt to identify a specific reduction for each of the factors that accompanies the plea. For example, there is no attempt to isolate a reduction for the fact of the plea and a separate reduction for assistance to authorities. It was this type of combination of factors to which Gleeson CJ addressed his remarks in R v Gallagher (1991) 23 NSWLR 220. In Gallagher, the New South Wales Court of Criminal Appeal was concerned with the issue of reduction for assistance to authorities. Gleeson CJ, with whom Meagher JA agreed, concluded that a sentencing judge was entitled, but not obliged, to identify a reduction given for assistance to authorities, provided it was possible and appropriate to do so. In that case the appellant had also pleaded guilty and demonstrated contrition. The Chief Justice observed that those subjective matters were not entirely separate from the matter of the appellant’s assistance to authorities. It was in that context that his Honour made the following remarks which were cited in the joint judgment in Wong at [76]:
“It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical” (p 228).
We respectfully agree with the observations of Gleeson CJ in Gallagher. As we have explained, when determining the extent of a reduction for a plea of guilty that is accompanied by one or more of the particular considerations to which Gleeson CJ referred, it is not the practice in South Australia to attempt to separate out one or more of such considerations.
Significantly, the fact that contrition and the other factors we have identified are taken into account in determining a specific reduction for a plea does not mean that those factors are ignored in other respects. For example, the existence of one or more of those factors is almost invariably relevant to an assessment of the need for individual deterrence and the prospects of rehabilitation. They may be relevant to an offender’s moral culpability and the question of general deterrence. There is no suggestion that the current practice in South Australia results in those factors being ignored for such purposes. In this way, an offender receives the greatest possible benefit. In our view, it cannot be said that the use of those factors in these ways offends any principle of sentencing or distorts the sentencing process. We are unable to discern how the current practice increases the prospects of error.
Submissions were heard in this appeal on 12 February 2002. Two days later the High Court delivered judgment in Cameron v The Queen [2002] HCA 6. In Cameron, the appellant had pleaded guilty to a charge of possessing a prohibited drug with intent to sell and supply. As the offence was committed on Commonwealth property, although the laws of Western Australia were to be applied, the sentencing court was exercising Federal jurisdiction. The appellant appealed against the penalty imposed on the basis that, pursuant to the Western Australian Sentencing Act and the provisions related to what is commonly known as the “fast-track system”, he was entitled to a greater reduction in the penalty than was given by the sentencing judge in respect of his plea of guilty.
Gaudron, Gummow and Callinan JJ delivered a joint judgment. Their Honours referred to the observations in Siganto v The Queen (1998) 194 CLR 656 at 663 that a plea of guilty is ordinarily a matter taken into account in mitigation because it is usually evidence of some remorse and, secondly, “on the pragmatic ground that the community is spared the expense of a contested trial.” Their Honours observed that remorse is not necessarily the only subjective matter revealed by a plea of guilty in that the plea “may also indicate acceptance of responsibility and a willingness to facilitate the course of justice [11]”. However, in respect of the proposition that weight in mitigation is given purely on the “pragmatic ground”, their Honours said [12]–[14]:
“12. Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial [Siganto v The Queen (1998) 194 CLR 656 at 663 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. See also R v Gray [1977] VR 225 at 231.] The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
13. It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another’s plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
14. Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”
In Cameron, the sentencing court was required to apply the provisions of the Sentencing Act 1995 (WA). Section 6 sets out a number of “principles of sentencing” and directs that the seriousness of the offence must be determined by taking into account identified factors including “any aggravating factors” and “any mitigating factors”. Section 7(2)(a) specifically provides that an offence is not aggravated by the fact that an offender has pleaded not guilty. Section 8(2) provides:
“A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.”
In dealing with the relationship between s 8(2) and s 7(2)(a), their Honours said [19]:
“Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.”
McHugh J made the following observations [39]-[42]:
“39. Australian courts have enthusiastically embraced the proposition that a person who pleads guilty should receive a lesser sentence than one who pleads not guilty and is convicted. In so far as a plea of guilty indicates remorse and contrition on the part of the defendant, the courts have long recognised it as a mitigating factor of importance. But in recent years, under the pressure of delayed hearings and ever increasing court lists, Australian courts have indicated that they will regard a plea of guilty as a mitigating factor even when no remorse or contrition is present. They have taken the pragmatic view that giving sentence “discounts” to those who plead guilty at the earliest available opportunity encourages pleas of guilty, reduces the expense of the criminal justice system, reduces court delays, avoids inconvenience to witnesses and prevents the misuse of legal aid funds by the guilty.
40.    …
41.    The result is that a person who pleads guilty at the earliest possible time almost always obtains a shorter sentence than a person who pleads not guilty and is convicted. The courts are well aware that it “is impermissible to increase what is a proper sentence for the offence committed in order to mark the court’s disapproval of the accused’s having put the issue to proof or having presented a time-wasting or even scurrilous defence.” But the courts maintain that the accused who pleads not guilty is not being punished and given an increased sentence for pleading not guilty. Rather, the accused who pleads guilty merely gets a lighter sentence than he or she otherwise deserves. The subtlety of this scholastic argument has not escaped criticism from those who see legal issues in terms of substance rather than form. In Shannon, Cox J said that a defendant “will need a very subtle mind, unusually sympathetic to the ways of the law” to accept this argument. And, speaking extra-judicially, Pincus J has said that “people are being punished for insisting on a trial, at least in the sense that they may receive a longer sentence if they plead not guilty than they would if they pleaded guilty. In earlier cases, I have criticised the two-tiered approach to sentencing which requires or permits a judge to select a sentence by reference to objective factors and then to discount that sentence by percentages to take into account other factors relevant to the accused. However, neither party criticised that approach in this case. They fought the case on the issue of whether the judge had erred in giving only a 10% discount and whether the Court of Criminal Appeal had erred in upholding the sentence.
42.    Like other Australian courts, the Western Australian courts give substantial discounts to those who plead guilty even when the plea is not accompanied by any remorse or contrition.” (footnotes omitted)
Later in his judgment, after observing that courts exercising Federal jurisdiction cannot act in a way that is “relevantly discriminatory”, McHugh J observed [44]:
“And it is at least arguable that it is relevantly discriminatory to treat convicted persons differently when the only difference in their circumstances is that one group has been convicted on pleas of guilty and the other group has been convicted after pleas of not guilty.”
His Honour added [45]:
“45. Where the facts and circumstances of crimes and the subjective factors of those who commit them are the same, arguably equal justice requires that there be an identity of, and not different, outcomes in the punishments that they receive. That the State and others may be advantaged by a plea of guilty is arguably not a relevant difference in cases where the plea of guilty throws no light on the contrition, remorse or future behaviour of the defendant.”
Having made those observations, McHugh J declined to decide the issue because neither party sought to challenge the proposition that an offender was entitled to a reduction purely on the pragmatic ground of the practical advantages of an early plea.
Kirby J observed that while the reduction for a plea of guilty must not be, or appear to be, “a judicial discouragement” to an accused person exercising the right to silence or the right to put the prosecution to proof, “necessarily, reliance on such rights will deprive the accused of any mitigation that might otherwise have resulted from a plea of guilty”[65]. His Honour remarked that judges have acknowledged “a certain illogicality” in these distinctions but that, nevertheless, such distinctions have been endorsed by the High Court: Siganto [22]. His Honour highlighted the distinction between a reduction for a plea of guilty and a reduction for a “spontaneous and immediate expression of remorse conducive to reform and for immediate cooperation with investigating police” [65]. As to the foundation for the reduction for a plea of guilty, his Honour said [65]-[68]:
“65. The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However, “remorse” is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.
The consideration of the public interest
66.    The main features of the public interest, relevant to the discount for a plea of guilty, are “purely utilitarian”. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.
67.    Given that under our criminal justice system it is the right of the accused to put the State to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea, it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.
68.    All of the foregoing are reasons why it is normally in the public interest to encourage a plea of guilty to a criminal charge whilst recognising, in its “full strength”, the rule that the accused is entitled to plead not guilty, to put the prosecution to the proof and cannot be punished more severely for having exercised these rights. The considerations that I have mentioned are not separate categories, or sub-rules, of the applicable principle. They are merely illustrations of aspects of the public interest to which the law of sentencing pays regard following a plea of guilty.”
The remarks of Kirby J concerning the public interest served by facilitating pleas of guilty echo the theme of the judgment of King CJ in Shannon. After quoting at length from the judgment of McInerney and Crockett JJ in R v Gray [1977] VR 225 at 231-233, his Honour said (pp 447-448):
“They [the factors that operate in the public interest] are discussed in an interesting passage in Cross, The English Sentencing System, 2nd ed. (1975), at p. 105.
“Quite apart from any question of contrition, there are at least two reasons based on expediency why some credit should be given for a plea of guilty. In the first place, there are cases, of which charges of sexual offences against children and girls are an example, in which prosecution witnesses are spared much pain by the accused’s plea as they do not have to give evidence at the trial; secondly, it is greatly in the interest of the smooth working of the present English judicial system that, provided they are in fact guilty, accused persons should plead guilty. From time to time suggestions are made that our system of criminal trials would break down if everyone charged with an offence in the Crown Court were to plead not guilty, and, in any event, the beneficial effect of saving the expense and inconvenience of a protracted and unnecessary trial is something which cannot be ignored. Provided it is clearly understood to refer only to those who are guilty, moderate encouragement to plead is, as the Court of Appeal put it in de Haan, ‘clearly in the public interest’. There is undoubtedly an element of plea bargaining, though it may well be a perfectly harmless one, in the attitude of the courts towards guilty pleas. It is true that the judge must not make a direct suggestion of anything of the sort, but it is a fact of which the accused is often informed by his legal advisers that there is a judicial practice according to which credit tends to be given in the assessment of sentence for a guilty plea.”
These factors have assumed even greater significance in recent times. The public interest in avoiding or minimizing the ordeal for victims of sexual assault involved in giving evidence has been the subject of much public discussion. This has resulted in legislation in this State designed to avoid or reduce embarrassment and unnecessary intrusion into the private lives of victims (Evidence Act Amendment Act, 1976, inserting s 34i into the principal Act). The public interest in saving the expense of trial has been increased by the pressures on the legal aid system. The resources available for legal aid are severely strained by the number and length of criminal trials. In many cases these trials and the consequent depletion of legal aid funds are brought about by guilty persons contesting their guilt by means of false stories. The volume of criminal business has placed the court system under stress and has resulted in unfortunate delays in bringing accused persons to trial. Congestion is greatly contributed to by offenders who put forward false stories and make use of legal aid in an effort to escape conviction. The growth in the importance of these factors points, in my opinion, to the desirability of providing some encouragement to guilty persons to admit their guilt.”

King CJ also dealt with the proposition that to impose a lesser sentence on a person who pleads guilty is the equivalent of imposing a greater sentence on the person who pleads not guilty. His Honour said (p 449):
“It is essential to maintain in its full strength the rule that a person must not be penalized for contesting his guilt and anything which gives the appearance of so penalizing him is to be avoided. I appreciate that it may sometimes be difficult for an offender to appreciate the distinction. Nevertheless there is a real distinction between increasing a sentence as a penalty for contesting the charge and reducing it as a measure of leniency for admitting it. It is one thing to assess a proper sentence as proportionate to the crime and to reduce it for mitigating factors. It is quite another to assess the sentence which the crime deserves and to increase it for subsequent behaviour such as contesting the charge. The sentencing judge should keep the distinction in mind and, where appropriate, should be able to explain it to the prisoner. A similar distinction has recently received emphasis in relation to sentences whose length is influenced by considerations of the protection of the community from dangerous persons: Veen v. The Queen.”
Later in his judgment, his Honour returned to the need for practical encouragement for guilty persons to admit their guilt (p 451):
“The conditions under which justice is administered change and the emphasis to be placed upon the various purposes to be achieved in shaping sentences changes accordingly. There are features of the current conditions which emphasise the need for practical encouragement for guilty persons to admit their guilt. Legal aid for as many as possible of those charged with serious offences should be a high social priority, and, indeed, it is not too much to say that its availability to persons having a genuine defence to criminal charges is indispensable to the proper administration of justice. The consequences of the general availability of legal aid must, however, be recognized and coped with. It must be recognized that guilty persons can put forward false stories and be defended without cost to themselves. The result is the depletion of funds available for legal aid and congestion and delay in the criminal courts. It is not, generally speaking, for the solicitor assigned or the legal aid authority to judge the truth of the assisted person’s story, and it is only in the exceptional case that it can be proper to refuse or discontinue assistance because of the strength of the prosecution’s case. If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence”.
It is noteworthy that in Shannon, King CJ expressed the view that a plea of guilty may be taken into account in mitigation where “it results from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest.”
Shannon was decided in 1979. The Sentencing Act came into operation in 1988. Section 10 directs that in determining sentence the court should have regard to a number of identified facts including:
“…
(f)     the degree to which the defendant has shown contrition for the offence –
(i)     by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)    in any other manner;
(g)if the defendant has pleaded guilty to the charge of the offence – that fact;
(h)the degree to which the defendant has co-operated in the investigation of the offence;
…
(o)    any other relevant matter.”
The Sentencing Act does not refer to “mitigating” or “aggravating” factors. It simply lists a number of factors, many of which could, in differing circumstances, amount to either mitigating or aggravating factors. In particular, the Sentencing Act does not have a section equivalent to the Western Australian provision that directs the court not to regard a plea of not guilty as an aggravating circumstance. However, it is a fundamental common law principle that an accused must not be penalised for pleading not guilty and putting the Crown to proof. That fundamental principle has not been altered by the Sentencing Act.
Section 10 requires the court to have regard to the fact that an accused has pleaded guilty. No guidance is given as to how that fact is to be taken into account. It has been accepted on more than one occasion that s 10 reflects the common law and this court is entitled to assume that, when the Sentencing Act was passed, the legislature was aware of the approach of the courts to the relevance of a plea of guilty as identified by King CJ in Shannon.
The issue before the High Court in Cameron was whether the Court of Criminal Appeal erred in its approach to the timing of the appellant’s plea of guilty. The majority concluded that the Court had erred. Neither party took a point based on discrimination and the question of discrimination was not relevant to the issue to be determined by the High Court. Three judges in the joint judgment expressed the view that the rationale for taking a plea of guilty into account independently of any question of remorse and acceptance of responsibility must be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. McHugh J did not refer to that suggested rationale. Kirby J identified a number of features of public interest which he described as “purely utilitarian”. His Honour did not adopt the rationale identified in the joint judgment. The approach of Kirby J supports that of King CJ in Shannon.
The issue of the rationale was not the subject of submissions. We tend to favour the views expressed by Kirby J and King CJ that, in the absence of subjective criteria such as contrition, a sufficient rationale is found in the public interest based upon “purely utilitarian” considerations. The considerations to which Kirby J and King CJ referred are compelling. However, it is not necessary to decide this issue.
Before leaving Cameron, it is appropriate to note the significance of the decision in the context of whether it is permissible to identify a specific reduction for a plea of guilty. In observations with which we respectfully agree, Kirby J repeated his views about the need for transparency and for identification of the extent of a reduction for a plea of guilty. In addition, although s 8 of the Western Australian Sentencing Act does not require a sentencer to state the extent of a reduction for a plea of guilty, it is the practice in Western Australia to identify the specific reduction and the sentencing judge in Cameron followed that practice. There is no suggestion in the joint judgment or the judgment of McHugh J that the practice or the approach of the sentencing judge was wrong in principle or undesirable.
Quantifying Reduction - Conclusion
The “mathematical” two-stage approach with which the High Court was concerned in Wong is not the process which has been approved and adopted in South Australia with respect to reductions for pleas of guilty. The views expressed in the joint judgment concerning the two-stage approach, and in particular the example given with respect to identifying a reduction for a plea of guilty, were not the views of a majority. In our opinion this Court is not constrained by authority to hold that the existing practice in this State is wrong. In our view, the current practice is consistent with the requirements of s 10 of the Sentencing Act and conforms with sentencing principles. The failure to identify a specific reduction is not an error of principle nor, in itself, is it a ground for interference with a sentence. Significantly, the South Australian practice does not detract from the requirement that sentencing courts take into account all relevant matters related to the offence and the offender. The practice does not give rise to any distortion of the sentencing process or invite error. It does not interfere with the important consideration of proportionality. The fears expressed by McHugh J in AB and in the joint judgment in Wong have not come to fruition in the 10 years that the practice has existed in this State.
The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that the public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance and with some confidence an approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons for it are given. The community and the appellate court are similarly well informed. The initial scepticism that accompanied the general recognition that a plea of guilty entitled an offender to a degree of mitigation has disappeared.
The system is fair and practical. It has worked well in practice for a number of years. In our opinion, it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the court has departed from its present practice. An explanation for the departure based on describing the sentencing process as an instinctive synthesis would be greeted with scepticism.
For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of the reduction, the current practice of taking into account the timing of the plea, contrition, co-operation with and assistance to the authorities should continue. We emphasise that in taking into account any subjective considerations, sentencing courts should not ignore those subjective considerations to the extent that they are relevant to other aspects of the sentencing task.
Totality
As mentioned, the trial Judge arrived at a starting point for the various crimes apparently based on the objective circumstances of those crimes and without considering the matters of mitigation. Having reached a total of 32 years, his Honour applied the principle of totality and reduced his starting point to 22 years. The appellant complains that his Honour erred in applying the principle of totality at that point in the sentencing process.
In R v Knight (1981) 26 SASR 573, this Court had occasion to consider the question of totality in circumstances where one of three sentences was ordered to be served cumulatively upon two concurrent sentences. As to the principle of totality, the court said (p 576):
“To use the language of Lord Parker L.C.J. in Reg. v Faulkner [(1972) 56 Cr. App. R. 594 at p.596], “at the end of the day, as one always must, one looks at the totality and asks whether it was too much.”
King CJ described the principle of totality in R v Rossi (1988) 142 LSJS 451 at 453:
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect … “
In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
The totality principle was considered by the High Court in Mill v The Queen (1988) 166 CLR 59. In a joint judgment, the High Court cited with approval the remarks in Knight to which we have referred and also approved of the following description of the principle in Thomas, Principles of Sentencing, (2nd ed. 1979) at pp 56-57 (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’.”
The principle was again considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence “is a just and appropriate measure of the total criminality involved” (p 308). Kirby J described the principles of “parity” and “totality” as “in the nature of checks” to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was “then” that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality (pp 340-341).
In our opinion the sentencing judge erred in applying the principle of totality to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the plea of guilty. Whether the error had any significant effect upon the ultimate sentence imposed is difficult to ascertain, but his Honour adopted a process which increases the risk of error.
Merits of the Appeal
The crimes of armed robbery occurred between 11 July 2000 and 27 July 2000. The offences of illegal use and threatening with a firearm were also committed in July 2000 and related to the forcible theft of two motor vehicles which were subsequently used in the robbery. The four offences of failing to comply with a bail agreement occurred in mid 2001 and related to breaches of home detention bail granted in respect of the armed robberies.
The appellant was born on 30 May 1960. He was raised in an affluent family and, although there were some unfortunate aspects to his family life, there is nothing in that part of the appellant’s background which could reasonably excite the sympathy of a sentencing court. The appellant began consuming alcohol as a teenager, but eventually ceased drinking alcohol in 1997 when diagnosed with Hepatitis C. Amphetamine use began at about the age of 15 years and, unfortunately, the appellant began to use heroin at the age of 17 years. He was a regular user of heroin for about 15 years until he was 37 years of age. Notwithstanding his addiction to heroin, the appellant was able to maintain a good working record in the engineering and construction industry. Prior to committing the offences for which he was to be sentenced, apart from breaches of the road traffic laws, the appellant’s only transgressions were three minor offences involving possession of marijuana committed between 1982 and 1984.
In 1980 the appellant commenced a de facto relationship with a woman who had a long history of heroin addiction. Marriage followed in 1992 and a son, who is now 15 years of age, was born of the relationship. The appellant and his wife separated in 1998. Their son has lived with relatives for some time. Following the separation the appellant experienced various emotional reactions consisting of feelings of depression, anger, self-loathing and desperation. In that frame of mind the appellant began using amphetamines heavily and needed money to finance his habit. He was feeling desperate and dejected about having gone from a “full life to having nothing”. It was against that background that the crimes of armed robbery were committed.
The offences all occurred over a period of less than three weeks in July 2000. The sentencing judge summarised the course of the appellant’s criminal conduct in the following terms:
“In the period before July 2000 you were alone and not working. You used all of your money to purchase amphetamine and then turned to robbery. It is not necessary that I descend into detail about the offences. The modus operandi was almost the same. You obtained an imitation firearm, and then, on two separate occasions, used it to threaten vehicle owners and then steal their motor vehicle. On one occasion you did this having been picked up as a hitchhiker.
For each robbery you used the gun, and your victims were aware that you were armed. From all six robberies you obtained a little under $5,000. It was all spent on drugs.”
The largest amount stolen in any one robbery was approximately $1 755. Most of the other robberies involved the theft of approximately $500. The targets of the robberies were three liquor stores, two service stations and a small retail store. All of the immediate victims were vulnerable to this type of robbery. Although the appellant threatened each of the victims by reference to possession of a gun, his behaviour in each instance was quiet and no physical violence was involved. In four of the robberies the appellant made no attempt to disguise himself other than by wearing sunglasses.
The appellant was arrested on 27 July 2000, three days after committing the last robbery. At that time, on legal advice, he declined to answer questions. The appellant had been arrested in respect of only the last robbery. Three days after his arrest, contrary to his legal advice the appellant volunteered to the police that he had committed the other robberies and associated offences. It is unlikely that the appellant’s involvement in at least some of the other robberies would otherwise have been discovered. The appellant entered pleas of guilty in the Magistrates Court at the earliest opportunity. The sentencing judge specifically acknowledged the credit to be given for assistance in the resolution of the offences which might not otherwise have been resolved and for the early pleas of guilty.
In October 2000 the appellant was referred to the Drug Court and was accepted into that Court’s assessment and counselling programme. The sentencing judge summarised the appellant’s progress as follows:
“You remained there [in the programme], with significant success, until April 2001. In that time, you substantially reduced your drug habit, notwithstanding some breaches which saw your home detention bail revoked for 14 days in January this year. Significantly, you were not then removed from the programme.
In April, your counsellor had changed and your regime was upset. You were unable to establish the same rapport with her replacement and breached your bail conditions. It was always known that even a successful conclusion to the drug counselling would still see you in prison for these offences. By May 2001, the pressure of this knowledge became extreme and it was agreed that you would leave the Drug Court programme in light of that pressure and your then recent behaviour. It was then that you were committed to this court for sentence.
You remained on home detention bail. From May until early June you breached the bail on four occasions.”

In response to a submission that the appellant should be given credit for undertaking the course of counselling and for significantly reducing his drug habit to the point where he might be said to be drug free, the sentencing judge said:
“In my opinion, even though you did not finish the course at the Drug Court, that you are now drug free as a consequence of it and your personal application is a matter of some weight in determining your sentence. Were it not to be, there would be no merit in using that court for those who plead guilty to serious offences at an early time. It is important to recognise and acknowledge the progress made, irrespective of other pressures which might, as here, bring about an end to drug counselling and a reverting to the usual criminal sentencing procedure. Such credit is incapable of precise definition because almost all cases will be different.”
When the sentencing remarks are read in their entirety, it is apparent that the sentencing judge had regard to all relevant matters of mitigation. However, as we have said, in our opinion the sentencing judge was in error in applying the principle of totality to the provisional sentence. In view of that error, in our opinion this Court should sentence afresh.
The appellant also submitted that the sentencing judge erred in applying what he perceived is the current sentencing standard for armed robbery without regard to the individual circumstances of the case. His Honour said:
“Armed robbery in circumstances such as these normally attracts a head sentence of six to eight years.
In the circumstances of the six offences of armed robbery, together with the matters for which consideration is sought, and the offences of breach of bail charged on complaint, I would start with a sentence of 32 years imprisonment.”
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. In our view, the sentencing judge was doing no more than having regard to the standard of penalty that has been identified by the Court of Criminal Appeal as applicable to the circumstances before him. However, it is clear that his Honour did not apply the standard as if it was a fixed tariff. If he had done so, his starting point would have been 36 years or more. It appears that his Honour used a figure of approximately five years for each of the armed robberies in determining his starting point.
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
With those observations in mind, it is necessary to refer to the recent decision of this Court in R v Newton [2002] SASC 36. The Court was concerned with an application by the Director of Public Prosecutions for leave to appeal against a sentence of three years and six months imprisonment with a non-parole period of nine months imposed following a plea of guilty to a charge of armed robbery. The victim was a 27-year-old female who had made a withdrawal from an ATM. While she was walking away after making the withdrawal, she was accosted by the offender who asked for a cigarette. When the victim offered the offender a cigarette, the offender demanded money, grabbed the victim by the shoulder and pulled her closer. At that moment the victim felt a prick to the lower right abdomen. The offender had a syringe and said she had just been released from gaol and had AIDS. An amount of eighty dollars was stolen.
In giving reasons for the dismissal of the Director’s application Perry J, with whom Wicks J agreed, referred to the standard of six to eight years and emphasised that the standard is not “inflexible”. His Honour commented that offences of armed robbery are committed in a wide range of circumstances, not all attracting the same degree of culpability, and made the following observations [46]-[49]:
“46. At one end of the scale is the large-scale armed hold-up of a bank, a credit union or other business, often planned and often involving a firearm. At the other end is what might be described as an armed robbery taking the form of a “street offence” where a victim is apprehended in the street by a robber who might brandish a penknife or similar implement, and make off with a small amount of cash.
47.    If a period of six to eight years imprisonment is appropriate for what is clearly the more serious class of offending, such as a bank hold-up, or armed robberies committed against business houses which are “vulnerable targets” such as chemist shops or service stations trading late at night, it is at least arguable that it could hardly be regarded as an appropriate tariff for what I have described as the simple “street offence”. The so-called “tariff” has been formulated, so far as I can see from the authorities, by reference to the former rather than to the latter category of offence, assuming the legitimacy of recognising them as separate categories.
48.    It seems to me that this case ought to be regarded as an aggravated example of what I have described as the “street offence” class of this offence. The use of the syringe undoubtedly must be regarded as a seriously aggravating circumstance.
49.    I should make it clear that my use of the expression “street offence” is not intended to reflect the view that offences of that class as I have described them are other than serious and would not ordinarily deserve a custodial prison sentence of reasonable severity. But the question arises as to whether such offences ought to be regarded as objectively so serious as the typical armed hold-up of a bank.” (footnotes omitted)
Notwithstanding the care with which Perry J explained the circumstances that, in his view, could lead to the description of a particular offence of armed robbery as a “street offence”, for the reasons we have given, in our opinion it is undesirable to attempt to attach labels of that type to a particular set of circumstances.
Perry J also suggested that the standard had been formulated by reference to a “category of offence” which he identified as “a bank hold-up or armed robberies committed against business houses which are “vulnerable targets” such as chemist shops or service stations trading late at night …”. A footnote to the passage cited referred to a number of appellate decisions involving armed robberies of those types of premises. In our opinion, however, the authorities to which his Honour referred were not concerned with identifying a standard applicable to a “category of offence”, but were indicating that the particular offences fell within the broad description to which we have referred. As we have said, in our view it is inappropriate to attempt to create categories of offending or to regard the standard as applying to a particular “category”.
The circumstances of the armed robbery in Newton involved a vulnerable victim who was no less vulnerable than attendants at premises such as pharmacies and service stations. The victim was subjected to a threat with a dangerous weapon. From the perspective of the victim, the use of the syringe involved a threat of violence that was no less dangerous than a threat with a knife. General deterrence and the need to protect the public were of particular importance. The offender was a heroin addict who was desperate for money in order to purchase heroin. In our opinion, the type of offending in Newton should not be regarded as intrinsically less serious than the broadly described type of offending in respect of which the standard of penalty has been applied by previous decisions of this Court.
In Newton, the Director indicated that he would not be troubled if the Court did not interfere with the sentence under review and emphasised that the principal purpose of the application was to offer the Court an opportunity of laying down or reaffirming principles which might guide sentencing courts when sentencing for the offence of armed robbery. The Court was aware that a five member Court of Criminal Appeal was shortly to hear the matter now under consideration. In those circumstances, the Court refused the Director’s application for leave to appeal.
In these reasons, we have confirmed the general principles that are applicable when sentencing for crimes of armed robbery. We have emphasised the need to consider the individual circumstances of the offence and the offender. No submissions were directed to whether the existing standard should be reviewed. The Director did not seek to revisit the suggestion that was made in Newton that sentences imposed in the District Court in recent years demonstrate that the level of sentences imposed for armed robbery has drifted below the standard to which we have referred. In these circumstances, it is sufficient for us to confirm that the standard remains applicable for the types of offences and offenders which we have, in broad terms, described. We would add only that we disagree with the suggestion in Newton that the circumstances to which the standard of six to eight years is appropriate includes the large-scale well planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out. Generally speaking, however, in our view a well planned and large scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.
The appellant committed six serious offences of armed robbery. The crimes were, unfortunately, typical of the crimes of armed robbery that are constantly coming before the Criminal Courts in this State. While the appellant did not engage in physical violence or other particularly intimidating type of behaviour that would be regarded as an aggravating circumstance, nevertheless he threatened the victims with what the victims perceived was a small firearm. The victims were attendants in premises that are regularly the subject of this type of armed robbery and they were vulnerable to attack in this manner.
The appellant is a mature person who, notwithstanding an addiction to heroin, has been able to maintain a good working record and previously to have avoided significant offending. We would treat him as a first offender. The appellant committed the crimes against the background of depression and dejection arising from the breakdown of his marriage. Significantly, having been arrested for the sixth robbery, the appellant volunteered his involvement in the previous five robberies. He pleaded guilty at the earliest opportunity and undertook the Drug Court programme. The sentencing judge formed the view that it is unlikely that the appellant will re-offend and we see no reason to disagree with his Honour’s assessment.
In our opinion this Court should exercise the power contained in s 18A of the Sentencing Act to fix a single penalty in respect of all offending. However, in order to arrive at that single penalty, it is appropriate to have regard to the individual sentences that would have been fixed if the power in s 18A did not exist. Ultimately, the question of totality must be addressed. In order to reach the point of considering totality, the preferred approach is to determine the appropriate sentences for the individual offences and to decide whether, totality aside, the circumstances would ordinarily require those sentences to be concurrent or cumulative. In the absence of s 18A, after taking into account totality and determining the appropriate total period to be served, that period could be achieved by making the sentences wholly or partially concurrent: Pearce v The Queen (1998) 194 CLR 610; Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 676-681.
Generally speaking, where a number of offences are committed over a period of time, there is justification for imposing greater penalties for the later offences. However, in the particular circumstances of this matter, we would fix the same penalty for each offence of armed robbery.
Bearing in mind the criminality of the conduct involved in each offence and the matters of mitigation, but before allowing for the plea of guilty coupled with contrition and co-operation, in our opinion a sentence of five years and six months would be appropriate for each crime. By reason of the appellant having volunteered his guilt, contrition and the plea of guilty at the earliest opportunity, we would reduce that sentence to three years and 10 months.
Although the offences were committed over a relatively short period of time, they were separate incursions into crime. Generally speaking, therefore, accumulation of the sentences would be appropriate. By this process a total of 23 years is reached. However, considerations of totality would lead us to adjust the period downward. In making an adjustment by reason of totality, regard should be had to the other offending to which the appellant pleaded guilty and which he asked be taken into account. In our view, a single sentence of 12 years would be a moderate sentence. We see no reason to disagree with the further deduction of six months given by the sentencing judge to reflect the time spent in custody and on home detention bail.
As to the non-parole period, in our opinion the combination of the circumstances in which the appellant came to commit the robberies and the matters of mitigation to which we have referred justifies a shorter than usual non-parole period. Of particular importance is the fact that the appellant volunteered his involvement in five of the robberies. The contrition, plea of guilty at the earliest opportunity and involvement in the Drug Court programme are also of significance. There is every reason to agree with the assessment of the sentencing judge that it is unlikely that the appellant will re-offend.
It is in the interests of the community that the appellant, after serving a reasonable term of imprisonment, be given the opportunity of a lengthy period on parole to ensure the completion of his rehabilitation and his return to the community as a useful citizen. We would fix a non-parole period of six years.
For these reasons we would allow the appeal and set aside the orders of the sentencing judge. We would exercise the power contained in s 18A of the Sentencing Act to impose a single penalty in respect of all offences. We would impose a head sentence of 11 years and six months and fix a non-parole period of six years, both commencing on 12 September 2001.
GRAY J I agree with the reasons of Doyle CJ, Prior, Lander and Martin JJ. I agree that the appeal should be allowed. I agree with the sentence which they have proposed.

[2002] SASC 101

26/3/2002