R v Randall-Smith and Davi - [2008] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RANDALL-SMITH & DAVI
[2008] SASC 99
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Layton)
23 April 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
DPP application for permission to appeal and appeal against sentence – the respondents (co-defendants) pleaded guilty to six counts of aggravated robbery, one count of attempted robbery and seven counts of using a motor vehicle without consent – offences occurred in context of multiple robberies of suburban banks – co-defendants aged 19 and 21 at time of offending – each respondent sentenced in respect of all offending pursuant to section 18A Criminal Law (Sentencing) Act 1988 (SA) – 16 years’ imprisonment head sentence and 8 years’ non-parole period imposed – when calculating sentences, sentencing judge imposed overall notional sentence of 43 years’ imprisonment and then made reductions for co-defendants’ early guilty pleas, remorse and contrition, cooperation with police and in purported application of totality principle – Crown submitted that sentences were “manifestly inadequate” and shocked public conscience – consideration of principles governing Crown appeals – consideration of sentencing principles – consideration of circumstances of offending, co-defendants’ personal antecedents, matters of mitigation, rehabilitation and reformation – whether sentencing process involved error – whether sentences “manifestly inadequate”.
Held: (Gray and Layton JJ): Permission to appeal refused – sentencing judge erred, however, this alone did not justifying the re-sentencing: section 353(4) Criminal Law Consolidation Act – sentences imposed were appropriate in all circumstances.
(Doyle CJ): Permission to appeal granted – appeal allowed – sentences imposed manifestly inadequate – sentence imposed should be set aside – head sentence of 20 years’ imprisonment and non-parole period of 10 years should be imposed for each defendant.
Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A; Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii), s 353(4), referred to.
R v Nemer (2003) 87 SASR 168; Wong v The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357; R v Symonds [1999] SASC 217; R v Jason (2002) 36 MVR 479; R v Elliot (2001) 121 A Crim R 254; R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Gibbs (2004) 89 SASR 30; R v BRWK (2005) 91 SASR 2000; R v Nylander (2003) 228 LSJS 24; Cameron v The Queen (2002) 209 CLR 339; R v Place (2002) 81 SASR 395; R v Shannon (1979) 21 SASR 442; R v Gallagher (1991) 23 NSWLR 220; R v Portolesi (1988) 48 SASR 217; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; The Queen v Smith and Shoesmith (1983) 32 SASR 219-221; R v Rossi (1988) 142 LSJS 451; R v E,AD (2005) 93 SASR 20, considered.

R v RANDALL-SMITH & DAVI
[2008] SASC 99
Court of Criminal Appeal: Doyle CJ, Gray and Layton JJ

DOYLE CJ: The Director of Public Prosecutions has applied for permission to appeal against sentences imposed by the District Court on two respondents. The application raises the difficult question of the appropriate punishment for young men, aged 21 years and 23 years respectively, who have committed a number of very serious crimes.
Background matters
I have had the advantage of reading the reasons prepared by Gray J and Layton JJ. They have outlined the relevant offending conduct, the circumstances of the offending, and the personal circumstances of the respondents. They have summarised the approach taken by the sentencing Judge. I am content to adopt these aspects of their reasons.
The approach to be taken to an application by the Director is adequately summarised in the passage from my reasons in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [23]-[24], set out in the reasons of Gray and Layton JJ. The relevant principles are not in doubt, and the passage referred to is a sufficient summary for present purposes.
Before turning to the issues argued on appeal, I pause to identify what I consider to be significant features of the case.
The offence of aggravated robbery is a serious offence. The maximum penalty is imprisonment for life. The offence of attempted aggravated robbery is a serious offence, attracting a maximum penalty of imprisonment for a term not exceeding 12 years. The motor vehicle offences are less serious, but are by no means trifling offences.
Armed robbery is a prevalent offence. Businesses other than banks appear to be the main targets at present, no doubt due to the security measures taken by banks. Nevertheless, the fact remains that armed robbery is prevalent, and when sentencing for this offence there is a need for general deterrence to be given considerable weight.
There are aspects of the offending that makes these offences particularly serious. The respondents were armed and acted together. The circumstances indicate that the respondents carefully planned and executed their crimes. These were not spur of the moment offences. The offences were committed over a prolonged period, some eight months from December 2005 to August 2006. The respondents had plenty of time to reflect and to desist. Their conduct cannot be characterised as a short term lapse into criminal conduct. A large amount of money, more than $105,000 was taken during the course of the robberies. On some occasions the respondents carried an additional weapon, either a sledgehammer or an axe, and this must have made the circumstances all the more terrifying for the victims. The offences were committed in a terrifying manner, the respondents shouting at staff and customers in a threatening way. The Victim Impact Statements demonstrate the large number of people affected by their conduct. It is not just bank staff who have suffered. The Victim Impact Statements also demonstrate the severity of the impact of the offending conduct on the health and well being of the staff, customers and bystanders. There is a brazen aspect to the offending conduct. It is notorious that during the period when the offences were being committed, there was a good deal of publicity about the offending, and the respondents were referred to as the “overall bandits”. They must have known the alarm that they were causing in the community, and yet they continued to offend.
I refer to these matters to make the point that not only are the offences of themselves serious, but the offending conduct is such that these are serious instances of serious offences.
On the other hand, there are significant mitigating circumstances. The respondents are young men, Mr Randall-Smith being 21 years of age when sentenced, and Mr Davi being not quite 23 years of age when sentenced. Neither of them had a significant record of offences prior to the offences in question. Each of them pleaded guilty at a very early stage, and each appears to have cooperated in every way with the police. The level of cooperation is particularly significant in the present case. The Judge accepted that each of the respondents was sorry for what they had done, and was genuinely contrite. The Judge also accepted that neither of them realised, let alone intended, that their conduct would have the effect on bank staff and bystanders that it did have. That, however, does not alter the fact that their conduct has caused harm to a lot of people. That remains a relevant aspect of their offending. The Judge accepted that the prospects of them being rehabilitated were good. There is no reason to doubt that assessment.
The salient features of the case that I have summarised crystallise the issue that the Judge faced. The Judge had to impose a sentence that was appropriate punishment, and proportionate to the seriousness of the conduct, for a series of very serious offences. On the other hand, the Judge was dealing with young men whose prospects of rehabilitation were good, and who by their pleas of guilty and by cooperation and in other ways had demonstrated genuine contrition and remorse.
Was the Judge’s approach to sentencing erroneous?
Gray and Layton JJ have concluded that the Judge’s approach was contrary to the decision of the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. Nevertheless they consider that the sentences imposed were appropriate sentences, and for that reason would dismiss both appeals.
I am not satisfied that the Judge’s approach to the sentencing process was erroneous in principle, although, as will appear, I consider that the sentences imposed were clearly inadequate.
I deal first with the Judge’s approach to sentencing.
The decision in Markarian was made against a background of some controversy within Australia as to the appropriate and permissible approach to sentencing. The controversy was often described as involving a choice between a process of “instinctive synthesis” and a “sequential or two-tiered” approach. As the majority in Markarian (Gleeson CJ, Gummow, Hayne and Callinan JJ) point out, the use of those terms can be unhelpful, because they reduce to misleading simplicity the matters for consideration. Referring to a submission that courts should “reject sequential or two-tiered approaches to sentencing”, and should affirm “a process of instinctive synthesis”, they said at [36]:
No universal rules can be stated in those terms.
After referring to a number of relevant decisions, they summarised the position as follows at [39]:
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
This court must apply the principles approved by the majority in Markarian.
I do not understand the majority in Markarian to be rejecting an approach under which a sentencing judge identifies a reduction for a plea of guilty. In R v Place [2002] SASC 101; (2002) 81 SASR 395 this Court (constituted by five judges) considered the decision in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and concluded that that decision did not require this Court to depart from its existing practice of encouraging sentencing judges to identify the amount of any reduction for a plea of guilty: at [80]–[83]. In Markarian the majority referred to this aspect of the decision in Place at [38], without any indication of disapproval. That is not to be taken as approving what the Court said in Place, but in my opinion it is appropriate for this Court to adhere to the approach outlined in Place, unless the High Court declares that approach to be erroneous.
It should also be noted that the observations by the majority in Markarian recognised that what they call “accessible reasoning” in sentencing remarks will on occasions be appropriate and necessary: at [39].
With those matters in mind, I turn to the reasons of the sentencing Judge.
After summarising the facts and relevant circumstances and the circumstances of the respondents, the Judge said that for each robbery offence, and each attempted robbery offence, together with the respective attendant motor vehicle offence (that is, treating each robbery and each attempt together with the use of the motor vehicle as a separate group), he would have imposed a sentence, having regard to “overall criminality” of six and a half year’ imprisonment for each of the robberies, and four years for each of the attempted robberies. He noted that that, by a process of accumulation, would have led to a sentence of 43 years.
His next step was to reduce that to a total of 24 years, on account of the pleas of guilty, contrition and cooperation.
Then he took into account considerations of totality, and arrived at a head sentence for each of the respondents of 16 years’ imprisonment. He then fixed a non-parole period of eight years.
At first sight this might appear to involve a contravention of the requirement of the majority in Markarian that a court must not:
… add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison.
But in my opinion that is not what the Judge has done. The Judge has indicated the sentence that these offences would attract, before, as encouraged by Place, he identified the reduction on account of the pleas of guilty, contrition and cooperation. Having done that, as the case law requires, he took into account considerations of totality. He then arrived at the ultimate penalty. Subject to some comments and criticisms that follow, I consider that this approach was permissible in principle. It enabled the Judge to identify the extent to which considerations of totality had operated to reduce what would otherwise be an appropriate accumulated sentence, and it enabled the Judge to identify the amount of the reduction for the plea of guilty. Had the judge not done what he did, one could not know the amount of the reduction on account of totality, and while the Judge could have indicated the extent of the reduction for the pleas of guilty, contrition and cooperation (by, for example, indicating that it was of the order of 44 per cent as it was), there is no harm in the Judge identifying the number of years involved. And it is desirable, when considerations of totality have a significant effect on the outcome of the sentencing process, for the public and for an appellate court to know what that effect was.
In fairness to the Judge it should be said that the approach that the Judge took is similar to the approach that this Court took in Place. In Place, having concluded that the appeal should be allowed and that the appellant should be re-sentenced, Doyle CJ, Prior, Lander and Martin JJ (with whom Gray J agreed) said:
[113]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.
[114]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.
For these reasons I respectfully differ from Gray and Layton JJ. I do not agree that the Judge’s approach was a “tiered or mathematical approach” of an impermissible kind. I consider that to the extent that, to use the words of the majority in Markarian, the Judge engaged in “an arithmetical process”, it was appropriate to do so in the interest of transparency.
Gray and Layton JJ identify the error that they consider the Judge made in their reasons at [86] as follows:
[86] The Judge’s approach is contrary to the High Court’s decision in Markarian. The Judge fixed a notional starting sentence with respect to the “overall criminality” of “each completed robbery offence and the attempted robbery offence”. He selected a benchmark or hypothetical notional sentence for each offence. This was the same notional sentence whether it was a robbery or an attempted robbery and whether it was an early offence or one at the end of the period of offending. The Judge in referring to the “criminality” of each offence was explicitly excluding other sentencing factors personal to each defendant which are unrelated to “criminality” such as the importance of reformation and rehabilitation. The process undertaken by the Judge also appears to suffer from the error identified by McHugh J in Markarian of either “consciously or unconsciously” downplaying the importance of mitigation as well as the personal antecedents of each defendant. It therefore appears that the Judge fell into error at a very early stage by determining each individual notional sentence by reference to crimes derived from some only of the circumstances of the case. The Judge did not consider matters of mitigation, reformation and rehabilitation until he purported to apply the totality principle, discussed hereafter, and then later when he was setting the non-parole period. Instead, by his initial concentration on the objective circumstances of the crime, the Judge in effect, gave greater weight to the retributive or deterrent aspects of sentencing.
But, with all respect to Gray and Layton JJ, I am not persuaded that that is what the Judge did.
Before the Judge indicated the starting point of six and a half years for each robbery, and four years for each attempted robbery, he had carefully surveyed all of the relevant facts. My impression from his reasons is that he took into account all relevant circumstances (except the reduction for the pleas of guilty) in arriving at that starting point. I do not agree that he excluded “factors personal to each defendant”. When the Judge came to considerations of totality (the relevant part of his sentencing remarks is set out in the reasons of Gray and Layton JJ) he said that he had to “evaluate the overall criminality involved in all of the offences and achieve a proper relativity between the criminality and the total sentence.” But I do not understand him to mean, by implication, that he had not considered subjective and objective circumstances at the earlier stage. He had earlier referred to the relevant subjective and objective circumstances, and in particular had referred to the respondents’ “good prospects of rehabilitation” and to the fact that they were “very young”.

This Court reviewed the case law on the principle of totality in Place at [84]–[90] referring in the course of doing so to relevant High Court authority. The principle is not a precise one. In Mill v The Queen (1988) 166 CLR 59, the High Court referred with approval to a description of the principle in Thomas, The Principles of Sentencing (2^nd ed, 1979) at 56-57, where the author said:
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’.
In Postiglione v The Queen (1997) 189 CLR 295 McHugh J expressed the principle as follows at 308:
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. (footnotes omitted)
In light of that summation, and in light of the case law generally, I am not persuaded that the Judge erred in principle in what he said in considering the question of totality.
However, I agree with Gray and Layton JJ that the size of the reductions that the Judge made gives rise to “an air of unreality about the sentencing process”, as this Court remarked in R vNylander (2003) 228 LSJS 24; [2003] SASC 191. When such a substantial adjustment is made, there may appear to be little sense in identifying a precise starting point.
But I am conscious of the desirability of the Judge explaining to the respondents and to the community how he arrived at the result that he reached. In a case like this, involving multiple offences, many of which attracted a maximum punishment of life imprisonment, it is important that the public and the media understand how the Judge reached the result he did. It was appropriate to explain why and how the Judge arrived at a sentence far below the sentence that would be imposed if a process of accumulation was followed. The public and the media can then comment on the sentence on an informed basis. While the adjustments made to the starting point are very substantial, the process that the Judge followed does expose to the public gaze the two processes (the reduction on account of the pleas, contrition and cooperation and the reduction by reference to considerations of totality) that led the Judge to the final result. The Judge’s approach also helps avoid future resort to the decision to justify, by way of comparison, a less than appropriate sentence for other respondents.
It should also be borne in mind that as the reduction for the pleas of guilty, contrition and remorse, were a proportion of the sentence, that reduction was inevitably, in the circumstances of this case, a sizeable one.
I add that in considering the submissions by the Director, I found it necessary to embark on a somewhat similar process. It is difficult to reach a conclusion in a case like this without, as it were, putting down some markers along the way.
For all those reasons I consider that the Judge’s approach to sentencing was not contrary to the principles identified by the High Court in Markarian.
Is the sentence manifestly inadequate?
In Place this Court considered the appropriate approach to sentencing for the offence of armed robbery. The Court said at [100]-[101]:
[100]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….
[101]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.
A little later the Court said at [108]:
[108]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… 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.
I regard the present offences as very serious instances of their kind. I have already explained why, when identifying the salient features of the case. The offences now before the Court are offences of a kind that, but for the respondents’ youth and immaturity, would attract a higher penalty than one in the range of six to eight years, because they merit the description used in Place of “a well planned and large scale armed hold up”. But the respondents’ youth and immaturity would justify a sentence at the low end of the range.
Accordingly, subject to the point next made by me, each of the six offences of aggravated robbery is an offence of a kind that, considered in isolation, would call for a sentence of the order of not less than about six years’ imprisonment.
The later offences in the sequence would call for a somewhat heavier sentence. The mitigatory effect of youth and good character must diminish as the respondents persisted in their offending conduct. There is every reason to impose a heavier punishment in respect of the offences in the latter part of the series. In contrast to the circumstances considered by the Court in Place, this is not a case of a group of offences committed over a short time. In Place the armed robberies were committed over a period of 16 days. There were other less serious offences committed outside that period.
I consider that the offence of attempted aggravated robbery would, taken in isolation, warrant a sentence of imprisonment of the order of about five years, again taking into account aggravating and mitigatory circumstances.
Like the sentencing Judge, I have treated each robbery or attempted robbery and associated motor vehicle offences as a single unit or group for these purposes.
However, the Court is not considering isolated offences. The figures that I have identified do no more than disclose a stage in my reasoning. The Court must consider the overall criminal conduct. The Court must decide whether and to what extent sentences (or notional sentences) for each group of offences should be accumulated.
The sentences for each group of offences should, in principle, be cumulative. The offences were committed over an extended period of time. They were separate incursions into crime. Subject to the need to achieve, in the words of McHugh J in Postiglione, “an appropriate relativity between the totality of the criminality and the totality of the sentences”, it is a case that calls for a process of accumulation.
It is evident that, even with a substantial reduction for the plea of guilty, contrition and cooperation, the end result of accumulating the sentences in respect of each group of offences would be such a lengthy period of imprisonment as to call for consideration of the principle of totality. I should say at this stage that I consider that the reduction that the Judge made for the pleas of guilty, contrition and remorse, was too great. In that respect I agree with Gray and Layton JJ, and there is nothing that I wish to add to what they said.
Subject to considerations of totality, and after an overall reduction of about one third, a sentence of imprisonment for about 30 years would be under contemplation on my approach.
Considerations of totality did call for a further reduction. Having regard to the age of each of the respondents, such a sentence could fairly be described as “… so crushing as to call for the merciful intervention of the court”: see R v Rossi (1988) 142 LSJS 451 at 453 King CJ. In the past (before the enactment of s 18A), that would have been achieved by ordering that some of the sentences operate concurrently. It is not now necessary to do that.
There is an undeniable element of impression in this, but I consider that a sentence of about 30 years’ imprisonment would be beyond “a just and appropriate measure of the total criminality involved”, to use the words of McHugh J in Postiglione at 308.
Although a reduction should be allowed by reference to considerations of totality, a sentence of less than 20 years’ imprisonment cannot be justified in this case. That is a very heavy punishment, but the offending in question is grave. Less than 20 years would not be a just and appropriate punishment for the total criminality involved. I would have reached that conclusion whatever approach I took in considering the adequacy of the sentence.
Considerations of totality cannot overwhelm the need to impose a punishment that reflects the serious nature of the offending, the need for general deterrence, the prolonged period of offending, and the impact on victims of the offences. I repeat what I said in R v E, AD [2005] SASC 332; (2005) 93 SASR 20 at [38]:
… Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
There is a limit to the extent to which considerations of totality can operate to reduce the punishment that would otherwise be imposed.
It follows that in my opinion the Judge has erred. The reduction on account of the plea of guilty, contrition and cooperation was too great. But, even if that is put to one side, (and that of itself would not be a basis for intervention), the end result is a sentence that in my opinion is manifestly inadequate. The ultimate result at which the Judge has arrived does not adequately reflect the gravity of the offending. It does not maintain an adequate standard of punishment. I consider that the error is one that calls for intervention by this Court. This is not a case in which it is sufficient to identify the error, but to leave the sentence stand. I consider that the sentence is one that would shake public confidence in the administration of justice, because it is less than the minimum required having regard to the gravity of the offending. A heavier head sentence than 20 years could be justified, but as this is a prosecution appeal it is appropriate to impose a sentence at the lower end of the range.
For those reasons I would grant leave to appeal and, for the reasons indicated, I would allow the appeal. I would set aside the sentence imposed by the District Court, and substitute a single sentence of imprisonment in the case of each respondent for 20 years.
Like the Judge, I consider that there is a sound basis for fixing a relatively low non-parole period. The mitigating circumstances to which I have already referred justify doing so, and in particular the good prospects of reform and rehabilitation support this approach. In each case I would fix a non-parole period of 10 years.
Conclusion
For those reasons I would grant permission to appeal. I would allow the appeal. I would set aside the sentences imposed by the District Court. I would sentence each of the respondents to a single sentence of imprisonment, exercising the power conferred by s 18A of the Sentencing Act, the sentence being 20 years’ imprisonment. I would fix a non-parole period of 10 years in relation to that head sentence. I would order that each of the respondents be disqualified from holding or obtaining a driver’s licence for three years. That period of disqualification should commence from the day on which the relevant respondent is released from prison. I would direct that the head sentence and non-parole period in each case commence on the day on which the respondents were taken into custody, 24 August 2006.
GRAY and LAYTON JJ
Introduction
The Director of Public Prosecutions (‘the Director’) seeks permission to appeal with respect to sentences imposed on two young men. The Director submitted that the sentences were so manifestly inadequate that they shocked the public conscience and that errors of the sentencing process had led to the manifest inadequacy.
James William Lawrence Randall-Smith and Andrew Dominic Davi, the two defendants on appeal, each pleaded guilty in the District Court to six offences of aggravated robbery and an offence of attempted robbery. Both also pleaded guilty to seven offences of driving or using a motor vehicle without consent. The sentencing Judge imposed on each defendant in respect of all offending the one term of imprisonment of 16 years. A non-parole period of eight years was fixed in each case. The non-parole period commenced on 24 August 2006 when the defendants were first taken into custody. A licence disqualification for three years was also imposed, to commence after release from prison. The defendants were respectively aged 19 and 21 at the time of the first offending. They are now aged 22 and 23.
The defendants committed the offences over an eight month period, from December 2005 to August 2006. Each offence involved a suburban bank and the offences of aggravated robbery involved the taking of a total sum in excess of $105,000. Each offence was premeditated and planned. Each followed a similar pattern.
The Judge addressed the circumstances of the offending; the impact of the crimes on the victims and the wider community; the antecedents of the defendants including the substance of the psychological and psychiatric reports tendered concerning their immaturity and the reasons for their offending; the pleas of guilty, contrition, remorse; and the defendants’ cooperation with the authorities. There was no challenge to the Judge’s outline of these matters on the hearing of these applications. Accordingly, it is convenient to extract relevant observations from the Judge’s sentencing remarks dealing with the above matters.
The Judge outlined the circumstances of the offending:
The motor vehicles that you used as the getaway vehicle in each case were either Mazdas or Ford Lasers and mechanically identical. In each case, after interfering with the ignition system, you took a motor vehicle from one of your victim’s residences shortly before, usually the night before, the intended day of the robbery. You parked the motor vehicle in a secluded place overnight and returned to it on the morning of the robbery. After each robbery, the motor vehicle used for your escape was dumped in a planned secluded location.
Each robbery occurred shortly before 10 o’clock and 11 o’clock in the morning. You adopted the same procedure in each case. You both wore a white dust mask under a balaclava, matching gloves, matching runners, matching blue overalls. At each robbery, or attempted robbery, one of you carried a .22 bolt-action rifle and the other a sawn-off shotgun. I accept, it being unchallenged by the Director of Public Prosecutions, that these weapons were not loaded, although, of course, your many victims amongst customers and bank staff were not to know this.
At four of the banks one of you also carried either a 10-pound sledgehammer or an axe. You used these on some occasions to assist you to gain entry into the banks. More often you walked through the front doors. Again, your victims were not to assume that you would not use the sledgehammer or the axe on them.
In each case you carried a green enviro bag into the bank in order to assist in carrying away the proceeds. In each case you entered the bank quickly, aggressively shouting numerous demands and threats to both the customers and the employees present. By your words and actions you left them in no doubt that their physical safety, indeed their lives, were significantly at risk if they did not respond to your demands immediately.
You grabbed what cash could be obtained, left the bank within minutes of entry, drove off in the getaway vehicle and, as I have said, dumped the vehicle in a secluded location. You did this seven times at seven different banks.
The Judge outlined the impact of the offending on a number of victims:
Over a two-hour period 22 victim impact statements were read in court during sentencing submissions. In addition, a further seven have been received and read by me. Most of these victim impact statements were from bank employees, but there were a number from customers as well.
The court was told that six other people approached for a victim impact statement felt emotionally unable to complete one. The victim impact statements provide a powerful demonstration of the profound effect your stupid, frightening and callous behaviour has had on so many people, including, I have no doubt, many others who have not come forward in this way.
Many of your victims were seriously emotionally and psychologically damaged. They are in terror for their lives. A number have cited significant detrimental personality changes and have become depressed, more anxious, more nervous and frightened generally. This is particularly so for those who continue to work in a bank environment. A number were and still are in need of professional help. A number are so fearful that they have had to stop working in the bank. Many of your victims have had their family and other personal relationships badly affected. None of your victims will be the same again.

The Judge then turned to the antecedents of the defendants. Although both had engaged in other minor offending, the Judge treated them as first offenders. With respect to Mr Randall-Smith, the Judge observed:
Mr Randall-Smith, you are still only 21 years of age. Your parents separated when you were 16; however, both parents were and remain extremely caring and supportive of you. You had a happy childhood with good but not overbearing parental discipline.
You have been described as a good sportsman and intelligent, yet you seemed to stop enjoying school and you ceased your formal education after completing year 11. You began a carpentry course at TAFE, but left that a few weeks short of completion and worked in various labouring jobs, including scaffolding, storeman and baker. Your father identified a change in your personality in that your self-confidence dropped and you struggled to find direction at school and later TAFE from about the time that he and your mother separated.
You appear to be in sound physical health, have not had any mental health problems and, apart from cannabis use from the age of 16, have not been a user of drugs.
You have been friends with your co-accused, Mr Davi, for approximately 10 years. You have had a few casual girlfriends, but just the one significant relationship of two years with a young woman who has since moved to Perth.
In addition to your parents’ divorce, there appear to have been two particularly traumatic events in your life of recent times. You were very close to your maternal grandfather who passed away after a long illness in February 2006. The second matter is that, early in November 2005, whilst you were at a hotel with work colleagues and your boss, an altercation of some type occurred and you were struck from behind. You woke up in hospital with 14 stitches in your head, a broken nose and severe lacerations. You did not go back to work and appeared to take up a fairly indolent existence watching TV, hanging about with friends, particularly Mr Davi. Within less than two months of leaving work you committed the first robbery.
Mr Randall-Smith, I have had regard to a report prepared on your behalf by Dr Raeside, a pre-sentence report prepared by Ms Trudy Babinskas of Community Corrections, a volume of your school and sporting records of achievement, including various written reports by teaching staff, and also a number of personal references written by family, friends and parents of former schoolmates. The school reports and the references all speak very highly of you and also of your caring, hard-working and well-respected parents. They describe you as good natured, caring and essentially decent.
Whilst you, no doubt, have had your problems, and whilst, no doubt, parental divorce can be very upsetting and damaging to an adolescent, I, frankly, am perplexed as to how you come to be in your present position. Your offending was not driven by desperate financial need or the need to support a drug habit, nor was it borne of any psychiatric or apparent personality disorder. Dr Raeside could find no evidence of either of these conditions. All in all, you appear to have enjoyed a good and supportive start in life.
As to Mr Davi the Judge observed:
Mr Davi, you are not quite 23. …
I have obtained significant help as to your background and circumstances from the report prepared by Mr Allen Fugler, a clinical psychologist. You are the youngest in a family of three children. Your parents separated when you were 15. This shocked and distressed you. You have spoken of your mother as having been affectionate and supportive throughout your childhood and your father as being protective and fairly strict but not punitive. You were afforded a reasonable amount of personal freedom.
You enjoyed your primary school education and developed a number of friendships. However, you did not enjoy your high school experience where you started to exhibit disruptive and troubling behaviour. You left at the end of year 9 following your parents’ separation. This coincided with you having become a significant user of cannabis. You then worked at several short-term positions, essentially of a labouring nature.
At some stage, prior to committing the robberies, cocaine became your drug of preference, but from time to time you also used methylamphetamine. You also consumed ecstasy on the weekend. You told Mr Fugler that, at the time of committing the first armed robbery, you were using about 5 g of cocaine a week at a cost of approximately $2,000. I have had regard to the other matters in this respect referred to by Mr Fugler on p.2 of his report which I do not need to set out here.
Mr Fugler also describes how you became socially withdrawn as you were growing up. You did not perceive yourself to be attractive and became hyper-sensitive, particularly with respect to your severe facial acne at the time.
You also developed an obsessive compulsive disorder which causes you on occasions to wash your hands 50 to 70 times a day. You also engage in various other irrational and maladaptive behaviours consistent with an acute anxiety about cleanliness and an obsessive compulsive disorder.
During your childhood you became despondent and at times depressed and you were socially avoidant and this has continued into your early adult years. In your early childhood you started to worry about money matters.
Mr Fugler has attempted to explain your offending, although, of course, not justifying it, as, in part, resulting from a combination of a need for cash in connection with the circumstances of your heavy drug use and associated psychological factors. I find this as an explanation hard to accept, at least as a complete explanation, given the nature and the extent of your offending. Mr Fugler does not suggest it is anything like a complete explanation.
Mr Davi, you, like Mr Randall-Smith, seem to have badly lost your way in your late teens. You had success with the first robbery and, like Mr Randall-Smith, were seduced into thinking this was a safe and easy way to get money. As Mr Fugler says, the boundaries between fantasy and reality were quickly blurred.
I have also had regard to a number of references written in your favour, Mr Davi, by a number of family friends and relatives and parents of school friends. They also all speak highly of you as a child and as a young man. They speak highly of your family. Many of these people have known you all your life, or for many years. They describe you as affectionate, friendly and decent and say that, in their experience, your offending is out of character. Many of them express real fear and concern for what the future holds for you. I am told that, since your arrest, you have been drug free and that you, too, continue to have the full support of your family.
The Judge considered the defendants’ motives to engage in the offending. The Judge concluded that both defendants were youthful and naïve, and that they blurred the boundaries of fantasy and reality.
The Judge paid particular regard to the evident contrition and remorse of both defendants. He placed emphasis on their offers to plead guilty at the earliest possible time, and their provision of full and frank accounts of their offending. In this respect the Judge observed:
I accept that it is quite unusual for a guilty plea to be made with respect to offending of this character and this extent at the committal stage in the Magistrates Court. The benefit of this to the community is significant. The trial, had it proceeded, would have been very lengthy, estimates of the number of witnesses that may have been called at the trial varied from 230 to 300. Perhaps more importantly, your early guilty pleas meant that the many traumatised victims will not have to relive their experiences by having to prepare for and give evidence at trial.
The Judge also had regard to letters of apology sent to the victims and to the Court and then observed:
I accept that both of you never fully appreciated where your actions would lead. I accept that you are extremely sorry for what you have done and that your contrition relates not just to your own circumstances but that you are truly sorry for the harm you have caused to others.
The Judge made a reduction on account of the pleas of guilty, remorse and contrition, as well as a further reduction with respect to cooperation with police through the provision of information concerning a third party said to be involved in one of the offences. The Judge remarked:
You each will receive maximum credit for your early pleas of guilty, together with your genuine contrition and the fact that you co-operated with and volunteered information to the police from a very early time in what was a complex and detailed investigation. However, your complete frankness in this latter respect justifies you receiving further credit, that is, additional to the credit of one-third I otherwise would have allowed.
The Judge proceeded to consider the sentences to be imposed. He began by determining to impose the one sentence with respect to all offending in the case of each defendant, by the exercise of his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA).[1] The Judge regarded the motor vehicle offences to be both separate and distinct offences as well as “part and parcel” of the planning and execution of the robberies and attempted robbery. There was no issue taken on appeal in respect of the application of section 18A to this case.
[1] Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) provides:
“If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.”
The Judge then concluded his remarks:
I have considered each completed robbery offence and the attempted robbery offence, together with each respective attendant motor vehicle offence. I consider that the appropriate sentence for each of these combined courses of criminal conduct, having regard to its overall criminality is six and a half years imprisonment in the case of each of the aggravated robberies, and four years in the case of the attempted aggravated robbery.
Ordinarily these sentences would operate cumulatively leading to a total of 43 years. I reduce this total to 24 years on account of your pleas of guilty, contrition and frank cooperation. Section 86A of the Criminal Law Consolidation Act ordinarily would lead to each of you being disqualified from holding or obtaining a driver’s licence for seven years.
I must further review this single penalty of 24 years and disqualification for seven years, having regard to the principle of totality. In my opinion such a penalty would be unduly crushing in all of the circumstances, particularly given your age and good prospects for rehabilitation. In looking at totality, I must evaluate the overall criminality involved in all of the offences and achieve a proper relativity between that criminality and the total sentence. Having considered this, I further reduce that penalty.
I sentence each of you to the one head sentence of imprisonment for 16 years.
I order that each of you be disqualified from holding or obtaining a driver’s licence for three years. That period of disqualification will commence to run from the day you are released from prison.
In setting a non-parole period, I have had regard in each case to your age, your prior criminal record and good character, the fact that the minimum sentence you may be permitted to serve, whilst it must satisfy the necessary punitive, deterrent and preventive aspects of punishment, should not be a crushing one, your good prospects of rehabilitation, together with your early pleas and cooperation already referred to. In all of the circumstances, I think both you and the community would best be served by giving you a lengthy period of supervision in the community. The non-parole period is therefore less than might otherwise be set in a case of this kind. I set a non-parole period of eight years.
Mr Randall-Smith and Mr Davi, your head sentence of 16 years and your non-parole period of eight years are both to commence on the day you were taken into custody, that is, 24 August 2006.
The Applications for Leave
The court’s powers to interfere with a sentence on the application of the Director are found in section 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). That subsection relevantly provides:
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
…
(iii)… the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law) … on any ground with the permission of the Full Court;
The principles that govern the Director’s applications were summarised by Doyle CJ in Nemer:[2]
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case” …
… [T]he High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience” … . Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[Citations omitted]
[2] R v Nemer (2003) 87 SASR 168 at [23]-[24].
In the event of the Director being granted permission to appeal, the powers of this Court on the sentence appeal are set out in section 353(4) of the Criminal Law ConsolidationAct:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)     quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
It is to be observed that the sentences of the District Court would only be set aside in the circumstance that this Court considers that different sentences should have been imposed,
Submissions of the parties
The Director raised a number of complaints with respect to the approach taken by the sentencing Judge. The Director’s overriding concern was the suggested inadequacy of the sentences imposed. It was submitted that when the offending conduct was considered, individually and as a course of ongoing conduct, the notional sentences identified and the final sentences imposed were manifestly inadequate, and to an extent that shocked the public conscience. The Director also contended that errors of sentencing principle had occurred with respect to the reduction made by the Judge for the defendants’ cooperation with the authorities, and in the application of the totality principle.
The Director submitted that a question arose as to whether the Judge had set the individual notional sentences so low that the public’s confidence in the administration of justice was shaken. It was submitted that a notional sentence of six and a half years for each offence of aggravated robbery was too low. The Director drew attention to the circumstances in which each of the principal and ancillary offences were committed. He submitted that:
These features of the offending reveal what can be characterised as the sophisticated and systematic commission of serious criminal offences, involving meticulous preparation and execution.
In support of this submission the Director pointed to a number of common threads and patterns in the offending, namely that:
-both defendants wore matching disguises, consisting of blue overalls, balaclavas, gloves and Dunlop brand white sneakers;
-they were armed with a firearm: either a sawn-off shotgun or a .22 calibre bolt action rifle;
-in addition, they were, variously, armed with a sledgehammer or axe on four of the occasions;
-both defendants commenced yelling aggressively and threateningly at customers and staff of the respective banks immediately upon entry;
-all principal offences were committed within what appeared to be strict time parameters;
-a previously stolen vehicle was used in all instances to facilitate an effective escape; and
-the vehicles used were mechanically identical. In each case, the vehicle’s ignition system had been interfered with, the ignition cover removed and the wiring cut and bypassed. The vehicles were otherwise untouched.
The Director further contended that, as the offending conduct took place over an eight month period, it was important that there be a distinction between the first completed principal offence and the subsequent offences. The Director submitted that where a prisoner is sentenced for multiple offences of the same nature, committed during one protracted criminal enterprise, it is appropriate for a sentencing judge to consider whether the offences occurring later in time ought to attract a different individual sentence.
The Director did not specify the particular individual sentences that would be appropriate. However, he inferred that the sentences should be of the order of 60 years before a reduction on account of the pleas, contrition, remorse and cooperation of one-third leading to sentences of 40 years in each case.
The defendants’ counsel accepted the gravity of the offending. Whilst it was accepted that lengthy terms of imprisonment were called for, it was also pointed out that there were substantial mitigatory factors to be brought to account. Attention was drawn to the unchallenged psychiatric and psychological evidence before the sentencing Court. This evidence established a significant level of immaturity in both defendants, coupled with naivety, and a lack of appreciation of the seriousness and consequences of the offending.
In the case of Mr Randall-Smith, attention was drawn to evidence that would support a conclusion that he was unlikely to offend again. With respect to Mr Davi, attention was drawn to evidence that his psychological condition could be addressed by treatment, that would lead him to become a person unlikely to offend again.
Emphasis was placed on the age of the defendants at the time of the offending, and it was submitted that a sentence of more than 16 years’ imprisonment would be too much for a young man to face. They were appropriately regarded as first offenders. It was contended that the defendants’ cooperation with the police by the provision of information more than justified the further reduction that was made by the Judge. Further, the operation of the totality principle, leading to a reduction of eight years, was said to be entirely appropriate to avoid what would otherwise be a crushing sentence. It was therefore submitted that neither application fell within the rare and exceptional category sufficient to warrant permission to appeal.
Sentencing principles

This appeal raises important issues regarding the sentencing process. A sentencing court has the task of determining a sentence, having addressed a number of competing considerations. These considerations may be complex. For example, apart from the objective circumstances of the offending, matters of aggravation and mitigation must also be considered. On the one hand, a sentencing court must address the need for general deterrence and must accord recognition to the suffering of victims. On the other hand, these factors must be weighed in the balance with matters personal to the offender including matters put in mitigation. These may include a plea of guilty, contrition and remorse, the youth and maturity of an offender, cooperation with the authorities and prospects for rehabilitation. These are but examples of factors that require consideration. Section 10 of the Sentencing Act sets out an extensive list of matters that the Court must have regard to. Ultimately, the Court has a responsibility of imposing a sentence that is appropriate and does not crush the offender.
The process of weighing all relevant factors is necessarily a difficult exercise. Sentencing reasons are usually detailed. It is too easy for commentators to criticise a sentence as being too lenient or inadequate by reference only to the aggravating factors of offending and the impact of offences on the victim(s) and the attitude of the victim(s) to the sentence. Inadequate attention is frequently given to other factors personal to the defendant, including mitigation, rehabilitation and reformation. A balanced commentary requires all factors to be taken into account in order to avoid reportage being misleading.
The overall approach to sentencing which has been discussed in a number of recent decisions of the High Court has specifically recognised the complexity of weighing sometimes conflicting and contradictory factors in sentencing. This has led to a clear expression by the High Court that a mathematical or tiered approach to sentencing is to be avoided.
In Wong,[3] Gaudron, Gummow and Hayne JJ observed:
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.
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.
In R v Thomson, 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 in R v Gallagher 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.
[3] Wong v The Queen (2001) 207 CLR 584 at [74]-[76] (footnotes omitted).
The issues discussed in Wong were further addressed in Markarian,[4] where Gleeson CJ, Gummow, Hayne and Callinan JJ confirmed that the proper approach to be taken when sentencing was the instinctive synthesis approach. The above passage from Wong was set out in full in the joint reasons in Markarian, and following a discussion of intermediate court authority, their Honours observed:[5]
Following the decision of this Court in Wongit cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
[emphasis added]
[4] Markarian v The Queen (2005) 228 CLR 357.
[5] Markarian v The Queen (2005) 228 CLR 357 at [39].
McHugh J reiterated his earlier views in support of the instinctive synthesis approach. His Honour reasoned:[6]
In AB v The Queen, I gave my reasons for preferring the instinctive synthesis approach. In my view, the judge who purports to compile a benchmark sentence as a starting point inevitably gives undue – even decisive – weight to some only of the factors in the case. Furthermore, the judge falls into the error of determining that notional sentence by reference to a hypothetical crime derived from some only of the circumstances of the case. Instead of sentencing this accused for his or her criminality, the judge sentences the person for another crime and adjusts the notional sentence by reference to factors that are additional to the objective circumstances. Indeed, there are some offences – manslaughter is an example – where an attempt to fix a first-tier sentence by reference to the objective circumstances is meaningless. How can a judge possibly fix a first-tier or any sentence for the mother who has killed her newborn baby without taking into account her personal circumstances?
Moreover, by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing. Indeed, the judgment of the Court of Criminal Appeal in this case makes it clear that the Court thought that the issues of retribution and deterrence were the dominant issues in the case. Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process. …
…
Analysing the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory. Whether the starting point is a sentence derived from the objective circumstances or a sentence proportionate to the offence, the correctness of the sentence always depends on the correctness of the value judgment involved in assessing the first-tier sentence. But even if the judge can correctly assess the first-tier sentence, the judge must still correctly assess the quantum of the increment or decrement for each factor in the process. With great respect to those who think the contrary, it would require a judge to have the statistical genius and mental agility of a Carl Friedrich Gauss to arrive at the correct sentence using these methods. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen, mathematical increments and decrements to some pre-determined notional sentence are “apt to give rise to error”.
[emphasis added]
Thus, the High Court has strongly reinforced that an instinctive synthesis approach is the usual process to be adopted, particularly where complex considerations are required to be weighed. In this case, the factors which were required to be weighed were complex.
[6] Markarian v The Queen (2005) 228 CLR 357 at [53]-[54],[56] (footnotes omitted).
The Approach of the Sentencing Judge
It is to be observed that the Judge in the present proceedings adopted a tiered and mathematical approach to his determination of the sentences to be imposed. After determining that one sentence should be imposed pursuant to section 18A of the Sentencing Act, and in arriving at that single sentence, the Judge:
-considered the appropriate sentence for each of what he described as “combined courses of criminal conduct”. In this respect he treated each aggravated robbery, and the attempted robbery, together with the associated motor vehicle offences. Having regard to the overall criminality, he then notionally fixed sentences in respect of each aggravated robbery and motor vehicle offence at six and a half years, and he fixed four years for the attempted robbery and associated motor vehicle offence;
-added the separate notional sentences to reach a notional overall sentence of 43 years’ imprisonment;
-made a reduction of 19 years, comprising a fourteen and one-third year reduction on account of the pleas of guilty, contrition and remorse, and a further four and two-thirds year reduction on account of cooperation with the investigating authorities. The effect of these reductions was to reduce the overall notional sentence from 43 years’ imprisonment to 24 years’ imprisonment;
-purported to apply the totality principle to make a further reduction of eight years. This reduced the overall notional sentence from 24 years’ to 16 years’ imprisonment. In making this final reduction, the Judge for the first time addressed the age of the defendants, and their prospects for rehabilitation. In his remarks he indicated that he again had valuated the overall criminality in their offending, and looked to achieve a proper relativity between that criminality and the total sentence.
The Judge’s approach is contrary to the High Court’s decision in Markarian. The Judge fixed a notional starting sentence with respect to the “overall criminality” of “each completed robbery offence and the attempted robbery offence”. He selected a benchmark or hypothetical notional sentence for each offence. This was the same notional sentence whether it was a robbery or an attempted robbery and whether it was an early offence or one at the end of the period of offending. The Judge in referring to the “criminality” of each offence was explicitly excluding other sentencing factors personal to each defendant which are unrelated to “criminality” such as the importance of reformation and rehabilitation. The process undertaken by the Judge also appears to suffer from the error identified by McHugh J in Markarian of either “consciously or unconsciously” downplaying the importance of mitigation as well as the personal antecedents of each defendant. It therefore appears that the Judge fell into error at a very early stage by determining each individual notional sentence by reference to crimes derived from some only of the circumstances of the case. The Judge did not consider matters of mitigation, reformation and rehabilitation until he purported to apply the totality principle, discussed hereafter, and then later when he was setting the non-parole period. Instead, by his initial concentration on the objective circumstances of the crime, the Judge in effect, gave greater weight to the retributive or deterrent aspects of sentencing.
The fact that the Judge incorrectly assessed the notional starting sentence may well explain the very substantial reduction for the pleas, contrition and remorse and cooperation which were beyond what might be expected. Notwithstanding this reduction of almost 45 per cent, the Judge then perceived the need to make a further broad discretionary reduction in the purported application of the totality principle to arrive at sentences that he considered appropriate.
As earlier observed, the Judge when sentencing utilised his powers to fix the one sentence for each defendant. A judge, when utilising section 18A, has considerable flexibility in the way that the one sentence is to be arrived at. This flexibility of approach was addressed by this Court in Symonds,[7] where Doyle CJ observed:
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major, was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed.
[7] R v Symonds [1999] SASC 217 at [21]-[22].
Subsequent authorities of this Court have endorsed and applied the above observations.[8]
[8] R v Jason (2002) 36 MVR 479; R v Elliot (2001) 121 A Crim R 254; R v Liddy (No 2) (2002) 84 SASR 231 at 241-243; R v P (2003) 87 SASR 287 at [62]-[70]; R v Gibbs (2004) 89 SASR 30 at [2]-[3]; R v BRWK (2005) 91 SASR 2000 at [17].
The subsequent addition by the Judge of the individual notional sentences to arrive at a starting point for a single sentence from which discounts for pleas, contrition and cooperation, and then further discounts for totality were made, created an air of unreality about the sentencing process. It was this type of process that led this Court, in Nylander,[9] to comment adversely on such an approach. Bleby J, with whom Prior and Sulan JJ agreed, having referred to the above observations in Symonds, commented: [10]
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[9] R v Nylander (2003) 228 LSJS 24.
[10] R v Nylander (2003) 228 LSJS 24 at [81]-[85].
Further, the particular adjustments which the Judge then made to that aggregated notional sentence also involved a degree of artificiality. When such a substantial adjustment is to be made for totality, there was little sense in identifying a precise notional starting point.
Any substantial increase in the individual sentences as suggested by the Director would highlight the problem identified in Nylander – the fixing of a starting point that would approach the life expectancy of the defendants.
Reduction for Pleas, Contrition, Remorse and Cooperation with the Investigating Authorities
In Cameron,[11] the High Court addressed the approach to be taken to mitigation in relation to pleas of guilty. Gaudron, Gummow and Callinan JJ, when discussing the provisions of the Western Australian Sentencing Act, observed:[12]
The Sentencing Act, which sets out sentencing principles applicable to all persons convicted of an offence, specifies, in s 8, mitigating factors to be taken into account on sentence. One such factor is that the offender pleaded guilty. By s 8(2) it is provided that “the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation”. Provision is also made in s 7 with respect to aggravating factors. The fact that the offender pleaded not guilty is expressly excluded from those aggravating factors by s 7(2)(a) of the Sentencing Act.
It was suggested for the respondent in this Court that the full reduction for a “fast-track” plea of guilty is only available where the person concerned has pleaded guilty in circumstances relieving the prosecuting authorities of the necessity to present evidence or file statements. There would be force in that suggestion if s 8(2) of the Sentencing Act were to be read in isolation from s 7(2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time.
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. That being so, the relevant question is not simply when the plea was entered but, as was accepted by the Court of Criminal Appeal in this matter, whether it was possible to enter a plea at an earlier time.
[11] Cameron v The Queen (2002) 209 CLR 339.
[12] Cameron v The Queen (2002) 209 CLR 339 at [17]-[19] (footnotes omitted).

Kirby J reviewed relevant sentencing principles as follows:[13]
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.
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.
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.
[13] Cameron v The Queen (2002) 209 CLR 339 at [66]-[68] (footnotes omitted).
In Place,[14] this Court provided a comprehensive review of the authorities dealing with pleas, contrition and remorse. The Court began with a discussion of Shannon[15] and Gallagher, [16] observing:[17]
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 cooperation with the authorities. A plea accompanied by active assistance to the authorities is recognised as attracting the higher range of reduction. ...
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.
[14] R v Place (2002) 81 SASR 395.
[15] R vShannon (1979) 21 SASR 442.
[16] R v Gallagher (1991) 23 NSWLR 220.
[17] R v Place (2002) 81 SASR 395 at [58]-[59].
The Court concluded that review with the following observations:[18]
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.
[18] R v Place (2002) 81 SASR 395 at [77]-[79].
Therefore, as this Court has indicated, it is not the practice of the Courts in South Australia to attempt to identify a specific reduction for a plea, contrition and cooperation. Instead it is the practice for the one reduction to be made which reflects all the relevant factors.
In the present case, the Judge separately identified the “complete frankness” of the cooperation and indicated that the defendants should receive “further credit, that is additional to the credit of one-third I otherwise would have allowed”. In doing so, the Judge did not follow the accepted and endorsed practice indicated by the High Court and this Court.
Cooperation provided by a defendant to assist police in investigating the involvement of others in a crime may operate as a mitigatory factor in sentencing.
In the present case, the cooperation provided by the defendants did not provide any assistance to the police in their investigations. The cooperation did not lead to any result. However, the Director accepted that before the sentencing Judge, there was no challenge by the prosecution to the bona fides of the defendants in seeking to cooperate. The question that arises in this circumstance is what allowance, if any, can be made for cooperation.
In relation to cooperation, in Portolesi,[19] King CJ observed:
I believe that criminal courts have felt obliged to approach questions as to whether an offender has co-operated with the authorities upon a basis which differs from other questions of fact affecting sentence. What merits leniency is not co-operation with the authorities considered in itself, but that co-operation together with the satisfaction of the authorities with it. The courts cannot properly enter upon a fact finding exercise to determine the honesty and the utility of information which is given to the authorities by an offender. There would be many inhibitions upon the ability of the law enforcement authorities to place evidence before the court contradicting an offender's claim of genuine co-operation with them. The privilege which must surround sources of police information would be but one of those inhibitions. For those reasons criminal courts have, I believe, felt obliged to accept the view of the law enforcement authorities expressed through counsel for the prosecution as to whether an offender has genuinely co-operated and provided useful information. I would deprecate any suggestion that criminal courts should act upon the assertion by an offender that he has co-operated with the authorities where that claim is not supported by counsel for the prosecution. The prosecuting authorities have a responsibility to be fair and candid with the court with respect to such matters and the court must rely upon them. That does not imply that courts should allow their hands to be tied. There may be exceptional cases in which the judge, either because he suspects want of good faith on the part of the prosecuting or law enforcement authorities or for some other reason, feels that justice demands some enquiry into the truth of an offender's claims. In general, however, an offender can only expect to obtain the leniency of the court on this ground if he has co-operated with the law enforcement authorities and has, in addition, succeeded in satisfying them as to the genuineness and usefulness of his co-operation.
The difficulty confronting this Court in the present case is that despite the appellant's uncontradicted and unchallenged evidence, counsel for the prosecution did not state the prosecution's attitude to the claim of co-operation either to accept it or to contradict it. The issue as to whether the appellant's claims were accurate was left unresolved. If counsel for the prosecution had stated that the authorities did not accept the appellant's claims of co-operation, the learned judge would have been right to disregard those claims in passing sentence. In the absence, however, of any stated attitude by the authorities and of any contradiction of or challenge to the appellant's claims, it seems to me to be unfair to disregard them in assessing the sentence. I think that the learned judge should have approached the sentencing process upon the footing that the appellant had genuinely co-operated with the National Crime Authority in the way which he claimed and was willing to continue to do so.
[19] R v Portolesi (1988) 48 SASR 217 at 219-220.
In applying the approach indicated in Portolesi, it was appropriate in this case for the Judge to make some allowance for cooperation and apparent bona fide frankness of the volunteered information by the defendants, albeit that it was not productive. The Director did not suggest that the reduction of one-third on account of the early pleas, contrition, remorse and cooperation was inappropriate. However, the Director contended that this was at the upper end of the permissible range, and that a further reduction of another 11 per cent on account of cooperation was inappropriate. We agree. In our view the overall reduction of 14 years, that is a reduction of 44 per cent, on account of the pleas, contrition, remorse and cooperation, was too substantial a reduction. To the extent that this Court in Place endorsed the well accepted practice for a court in this State to specifically identify the reduction for such features,[20] we consider that in all the circumstances the reduction on account of the combination of all these factors should not have exceeded one-third.
[20] R v Place (2002) 81 SASR 395 at [80]-[83].
Totality
The principle of totality has been expressed by Thomas[21] as follows:
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”.
[21] Thomas, Principles of Sentencing (1979, 2^nd ed) at 56.
The principle so expressed has been approved by the High Court in Mill[22] and Postiglione,[23] where McHugh J described the totality principle in the following terms: [24]
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
“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.”
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Also in Postiglione, Kirby J described the principle of totality as “in the nature of checks”[25] 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. It was then that a sentencing judge must consider whether the resulting sentence needs further adjustment by reason of “parity” or “totality”.[26] It is also to be observed that Dawson and Gaudron JJ in Postiglione, cited the above passage from Thomas with approval.[27]
[22] Mill v The Queen (1988) 166 CLR 59.
[23] Postiglionev The Queen (1997) 189 CLR 295.
[24] Postiglionev The Queen (1997) 189 CLR 295 at 307-309 (footnotes omitted).
[25] Postiglionev The Queen (1997) 189 CLR 295 at 340.
[26] Postiglionev The Queen (1997) 189 CLR 295 at 340-341.
[27] Postiglionev The Queen (1997) 189 CLR 295 at 304.
This Court also approved the principle as expressed by Thomas in Smith and Shoesmith,[28] where Jacobs J observed:
It was, however, incumbent upon the sentencing Judge, who decided to aggregate the sentences, to consider whether the aggregate period was an appropriate sentence for the criminal conduct, viewed as a whole (Reg. V. Knight). This principle of sentencing, sometimes referred to as “the totality principle”, has perhaps assumed greater importance since the courts have been empowered to impose more than one cumulative sentence, although the exercise of that enlarged power did not arise in the present case.
[28] The Queen v Smith and Shoesmith (1983) 32 SASR 219 at 221 (footnotes omitted).
The proper application of the totality principle was reviewed by this Court in Place[29] where in the course of a discussion of the authorities, the observations of the High Court in Postiglione were reinforced and the following observation was also made:[30]
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.
[29] R v Place (2002) 81 SASR 395.
[30] R v Place (2002) 81 SASR 395 at [87].
The Judge in present case expressed his application of the principle of totality in the following manner:
I must further review this single penalty of 24 years and disqualification for seven years, having regard to the principle of totality. In my opinion such a penalty would be unduly crushing in all of the circumstances, particularly given your age and good prospects for rehabilitation. In looking at totality, I must evaluate the overall criminality involved in all of the offences and achieve a proper relativity between that criminality and the total sentence. Having considered this, I further reduce that penalty.
I sentence each of you to the one head sentence of imprisonment for 16 years.
This is the only time in the sentencing process that the Judge refers to the personal factors of age and the good prospects of rehabilitation. Apart from earlier observations about these two factors in the narrative before commencing the sentencing process, there is no other mention of these factors in the earlier mathematical process leading to the provisional sentence of 24 years’ imprisonment to which the totality principle was to be applied. It is evident that the Judge undertook a different process from that endorsed by the High Court and this Court in Place. Instead, the Judge appears to have taken into account matters which should have been addressed in the earlier sentencing process, only at the point when he was purporting to apply the totality principle. The above authorities make it clear that it is only after having arrived at the sentence to be imposed following consideration of all relevant matters that the Court “takes a last look at the total just to see whether it looks wrong”. This was not the process that the Judge undertook and in our view the Judge erred.
Conclusion
In our view there are a number of respects in which the sentencing Judge erred in the sentencing process. However, that in itself does not amount to a basis for granting leave to the Director to appeal against the sentences. There is no need for the Court in this case to establish relevant sentencing principles. Rather the errors are ones of misapplication by the Judge of relevant principles which are well accepted in sentencing law. Further, even if leave is granted there is still the need to consider whether a different sentence should have been passed pursuant to section 353(4) of the Criminal Law Consolidation Act.
The sentencing Judge in his remarks has referred to a number of features which have a significant bearing on whether the sentences of 16 years’ imprisonment with a non-parole period of eight years is so manifestly inadequate as to shake confidence in the administration of justice.
The offences in this case were very serious and they had profound effects on the victims, which effects were explicitly summarised by the Judge. The offences were well planned, followed a pattern and took place over a period of eight months. There was publicity given to the offending prior to the last of the offences and the defendants would have been aware of the public concern about their behaviour.
At the same time the Judge appropriately recognised the unchallenged psychiatric and psychological evidence. The Judge accepted that the defendants conceived the plan to undertake the armed robberies after watching a number of movies “many times over”. They had blurred the boundaries of fantasy and reality. He accepted that they had no intention to hurt anyone physically. The guns were not loaded, although the victims would not have appreciated that fact. The defendants did not fully appreciate where their actions would lead and importantly they were both “extremely contrite” and “truly sorry” for the harm they had caused others and “genuinely wish to … lead law abiding lives”. They were also appropriately regarded by the Judge as first offenders.

The most obvious feature which permeates their criminality, their personal antecedents, deterrence and prospects for rehabilitation, is their youth and immaturity. The term of imprisonment that each defendant must face should not in the final outcome be crushing. For 20 year olds, a sentence of more than 16 years’ imprisonment for these crimes would be truly crushing. The earliest release that either defendant could hope for would be at the conclusion of the non-parole period of eight years. At that time they would not necessarily be released, instead there would be an eligibility for them to apply for parole. The parole board would determine whether each defendant was fit for release on parole at that or some later time. There is no guarantee that there would be a grant of parole. There could be no expectation that parole would necessarily be granted.
In our view, the sentences imposed by the sentencing Judge were not manifestly inadequate and appear appropriate sentences having regard to all relevant matters. To put it in the terms of section 353(4) of the Criminal Law Consolidation Act, we do not consider “that a different sentence should have been passed” on either defendant.
We do not consider that the Director should be given permission to appeal, but even if permission was to be given, we would dismiss both appeals.