R v Ravet - [2011] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RAVET
[2011] SASCFC 67
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
21 July 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant pleaded guilty to five counts of aggravated robbery, one count of attempted theft and one count of dangerous driving to avoid a police pursuit - appellant sentenced to 15 years, one month and 21 days' imprisonment to commence at the expiration of a period of unexpired parole of nine months and nine days' imprisonment, making a total of 15 years and 11 months' imprisonment with a non-parole period of nine years.
Whether sentence manifestly excessive - whether Judge erred in applying the totality principle before reducing the sentence for the pleas of guilty - whether Judge erred in adopting an arithmetical approach to sentencing.
Licence disqualification reduced to two years to allow the appellant eligibility for driving program whilst in custody.
Appeal dismissed in respect of the sentence - sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v Place (2002) 81 SASR 395, discussed.
R v Rossi (1988) 142 LSJS 451; Postiglione v The Queen (1997) 189 CLR 295; Mill v The Queen (1998) 166 CLR 59; R v Bartel [2008] SASC 289; R v Randall-Smith and Davi (2008) SASR 326; R v Copeland (No 2) (2010) 108 SASR 398; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v Van Der Horst [2006] SASC 243; R v Power [2003] SASC 288; R v Gibbs (2004) 89 SASR 30, considered.

R v RAVET
[2011] SASCFC 67
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J: I agree with the reasons of Sulan J and his conclusion that the sentence was not manifestly excessive.
I also agree that the appeal should be allowed for the limited purpose of reducing the period of disqualification of the appellant’s driving licence to two years to commence on 13 November 2008
SULAN J: The appellant, Adrian James Ravet, pleaded guilty to five counts of aggravated robbery, one count of attempted theft and one count of dangerous driving to avoid a police pursuit. The maximum penalty for the offence of aggravated robbery is life imprisonment. The maximum penalty for the offence of attempted theft is six years and eight months’ imprisonment, and the maximum penalty for the dangerous driving offence is three years’ imprisonment and disqualification from holding or obtaining a driver’s licence for not less than two years.
On 25 January 2011, the appellant was sentenced to 15 years, one month and 21 days’ imprisonment to commence at the expiration of a period of unexpired parole of nine months and nine days’ imprisonment, making a total of 15 years and 11 months’ imprisonment. The sentencing Judge fixed a non-parole period of nine years, to commence on the day of sentence.
Background
The offences were committed over a three-week period between 20 October 2008 and 13 November 2008. The events unfolded in the following way. On 20 October 2008, at about 11.55 pm the appellant and another man entered the Crows Tavern. They were carrying knives. The appellant threatened the staff. One of the members of staff was man-handled by the appellant’s partner. The two offenders escaped, having stolen $47,000.
The following morning, the appellant purchased a motor vehicle which he registered in his sister’s name and which was used in subsequent robberies. On 27 October, the appellant drove the vehicle, the numberplates of which had been altered, into the bottle shop area of the Golden Grove Tavern. He produced a knife and demanded money and cigarettes. He stole $1200, a quantity of vodka and cigarettes. About five minutes later, the appellant drove into the bottle shop of the Blue Gums Hotel. He produced a knife and demanded money. A quantity of vodka and $280 cash were taken. At that time, the appellant was accompanied by his stepfather, who was in the car.
Later that morning, police observed the appellant’s car. A pursuit ensued, during which the appellant’s vehicle reached speeds of approximately 130 kilometres per hour. The police ceased the pursuit because of the danger that had been created. Shortly thereafter, the appellant’s vehicle crashed into four vehicles which were stationary at an intersection. The persons who were in the four cars with which the appellant’s car collided received minor injuries. The appellant attempted to push the cars out of the way before he and his stepfather alighted and ran off. The appellant’s stepfather was caught shortly thereafter and charged with various offences of armed robbery. He has a long history of prior offending. He denied that he was the passenger in the car. At his trial, he was acquitted. Samples were taken from the car. DNA from those samples was extracted which matched the appellant’s DNA. The appellant continued to evade arrest.
On 4 November 2008, the appellant drove into the Settlers Hotel drive-in area, threatened the attendant with a knife and stole $1400 and a quantity of vodka. On 10 November 2008, the appellant rode a pushbike into the bottle area of the Windsor Hotel. He threatened the attendant with a knife and stole $676 and a quantity of vodka. On 13 November 2008, he returned to the Windsor Hotel, but was recognised by one of the employees. He fled the scene. Later that day, he was arrested at a caravan park. He has been in custody ever since.
The appellant pleaded guilty to the offences prior to the commencement of the trial. At the date that he was sentenced, the appellant was 23 years of age. As I have indicated, his stepfather, who had also been charged with the earlier offences, was acquitted. At the time of the offences, the appellant was on parole. I will return to those details later in these reasons.
The sentence
The sentencing Judge had regard to victim impact statements from two victims who described the traumatic effect that the events had upon them. He noted that the victims were, in his description, “soft targets”, that they do not have the sort of security that banks and other institutions have, and that they are especially vulnerable to criminal attacks. The Judge accepted that the appellant regretted his behaviour. The appellant had written a letter of apology, which it was accepted was sincere. The Judge also received letters from the appellant’s grandmother, a chaplain, and the appellant’s employer, all who indicated that he is gradually maturing. They expressed confidence that his criminal behaviour may cease with his maturity.
The Judge also had regard to a psychological report from Mr Balfour, an experienced forensic psychologist. The appellant has a long list of prior convictions. In July 2002, he appeared before the Youth Court charged with numerous offences of dishonesty, driving offences, and offences of assault. Since that time, the appellant has regularly been before the courts charged with dishonesty offences and driving offences. That pattern of offending continued after he became an adult and, up to the time of sentencing for these offences, he had been sentenced to imprisonment on a number of occasions for a variety of offences.
On 21 September 2006, in the District Court, the appellant was sentenced to three years and six months’ imprisonment, with a non-parole period of 22 months for offences of causing bodily harm by dangerous driving, escaping from custody, damaging property and aggravated robbery in company. Upon his release for those offences, he committed further offences for which he received short periods of imprisonment.
Mr Balfour outlined the appellant’s family history. His mother was abandoned by his father when the appellant was about two years of age. His father had been violent towards his mother. The appellant has not seen his biological father since he, his sister and his mother were abandoned. When he was seven years of age, his mother abandoned him and he was raised by his maternal grandmother and maternal uncle until he was about 11 years of age. During that period, he suffered sexual abuse from his uncle’s male partner.
When he was about ten years of age, his mother commenced a relationship with his stepfather, who has a lengthy criminal history and who has spent long periods in custody for offences, including offences of aggravated robbery. The appellant looked up to his stepfather, who has been a poor influence upon him. According to Mr Balfour, the appellant has now realised that he does not want to follow in his stepfather’s footsteps. The appellant has had a dysfunctional upbringing.
Mr Balfour concluded:
Mr Ravet possesses all of the traditional static and dynamic criminogenic risk factors which have been identified by researchers as predisposing an individual towards offending behaviour. He exhibited evidence of a conduct disorder during his adolescence. He has an antiauthoritarian attitude. He has socially gravitated towards a predominantly negative peer group. He has a significant juvenile offending history which has resulted in 18 months detention. He has a significant adult offending history which has resulted in lengthy incarceration and institutionalisation. He has a history of polydrug abuse problems and continuous alcoholism. He suffers from pathological boredom. He has pervasive anger management problems which have led to legal conflict. He has a history of generalised impulse control problems in the community, and has a history of engaging in reckless, thrill-seeking offending behaviours. I would rate his criminogenic profile as being in the high range of risk for coming into further legal conflict during the next 12 months.
…
I believe that Mr Ravet’s case illustrates the importance of high risk offenders who are institutionalised of being given the opportunity to participate in a supervised, graduate release programme into the community. Unfortunately, he has always been classified as a high security prisoner because he escaped from custody as a juvenile. This has restricted his access to rehabilitation programmes in the jail. Consequently, he has been denied an opportunity to participate in a graduate release programme into the community. For example, he was not allowed to live in the Northfield Cottages and given supervised day leave to attend work and rehabilitation programmes. He has always been released directly from high security into the community with minimal preparation. I believe this approach was courting disaster. Matters were further exacerbated by a clerical problem regarding his treatment with methadone which led to him being prematurely cut-off the methadone programme. I believe the failure to provide him with adequate rehabilitation before his release has placed the community at an acceptable risk and been to his ultimate detriment.
I asked Mr Ravet what is the probability of him reoffending and he replied “It’s not going to happen. Because I jumped off the drugs. I have a job when I get out. Car detailing. I know that if I stuff up, I’m going to be in here for a long time. My 20s are going to be gone and I’m never going to get them back. I’ve already lost all that time. I should be out celebrating things, getting a job, getting a mortgage”.
Without the assistance of a supervised, structured rehabilitation programme, I believe that Mr Ravet’s prognosis to cease offending is poor. He has complex mental health problems He has an entrenched history of drug and alcohol abuse problems. He will be prone to experiencing relapses of his drug use which will potentially lead to addiction and further offending behaviour. Recovering from a chronic addiction is very similar to recovering from a chronic physical illness with a remitting course. His rehabilitation will be lengthy (i.e., three years or longer). …
Mr Balfour considers that the appellant has reasonable prospects of overcoming his drug and alcohol abuse, if he is able to receive assistance to do so. Mr Balfour is of the opinion that the appellant is genuinely remorseful and he is of the view the appellant recognises that he is at the cross-roads of his life. Mr Balfour is of the view that the appellant has been severely disadvantaged by being denied access to optimal rehabilitation for his mental health problems and alcoholism addiction, and he believes the appellant will be responsive to rehabilitation. He considers that the appellant would benefit from cognitive behavioural therapy and to a range of rehabilitation programs, including cognitive skills, drug and alcohol rehabilitation and anger management. Mr Balfour recommends a number of programs and initiatives that can be taken to assist the appellant in his rehabilitation.
In his sentencing remarks, the sentencing Judge referred to Mr Balfour’s report. He concluded that the appellant’s rehabilitation is secondary to the need for punishment and deterrence. He referred to personal deterrence and general deterrence. The Judge did not refer to Mr Balfour’s opinion that a lengthy term of imprisonment will not act as a personal deterrent to the appellant, unless he receives counselling and treatment to assist him with his drug and alcohol problems and psychological problems. The approach of the Judge was weighted towards punishment, personal and general deterrence. Given that the appellant is relatively young, consideration of his prospects of rehabilitation are important. Given that the appellant will serve a long period in custody, it is important that consideration should be given to ensuring he undertakes various courses which will assist him when he is eventually returned to the community.
The approach of the sentencing Judge to determining the sentence
The sentencing Judge referred to the decision of the Court of Criminal Appeal in R v Place,[1] and the statement that, ordinarily, an aggravated robbery of this nature would attract a sentence of between six and eight years’ imprisonment. He observed that the appellant cannot expect leniency, either on the grounds of his background or drug addiction. He noted that the offences were committed whilst the appellant was on parole. He then proceeded to consider each offence. He concluded that the offence at the Crows Tavern should attract a sentence of eight years’ imprisonment. As to the four counts of aggravated robbery, he considered each of those counts should attract a six-year sentence of imprisonment. For the offence of attempted theft, he considered two years was appropriate, and one year imprisonment was appropriate for the driving offence. That came to a total of 35 years’ imprisonment.
[1] (2002) 81 SASR 395.
The sentencing Judge then proceeded as follows:
The total of all those sentences, if they are all imposed without regard to totality, is 35 years imprisonment. I regard the imposition of such a sentence on a person of your age as a crushing sentence and I will reduce it having regard to the principle of totality. In my view the lowest figure to which I can reduce it is 20 years imprisonment. I further reduce it to 16 years having regard to your pleas of guilty. I realise that that may be somewhat inappropriate in the sense that it is arguable that the period to come off for pleas of guilty should come off the total sentence rather than after it’s been reduced, but in the circumstances of this case I’ll adopt that course. I further reduce the sentence to 15 years, one month and 21 days having regard to the time spent in custody.
As indicated in his remarks, the Judge reduced the sentence of 16 years to 15 years, one month and 21 days, having regard to the periods he had spent in custody referrable to these offences. He made the sentence cumulative upon a period of unexpired parole of nine months and nine days, making a total of 15 years and 11 months’ imprisonment. He imposed a non-parole period of nine years, to commence on the day of sentence. The non-parole period is less than 60 per cent of the head sentence. Given the appellant’s prior record and the fact that these offences were committed when the appellant was on parole, the non‑parole period imposed was merciful. The Judge must have had regard to the appellant’s youth and to Mr Balfour’s views about the appellant’s prospects of rehabilitation in setting the non-parole period.
Grounds of appeal
The appellant complains that the sentence was manifestly excessive. The main thrust of counsel’s complaint is that the sentencing Judge applied the two‑stage arithmetical approach to arriving at the sentence and, in so doing, the Judge erred in applying the totality principle at the point of arriving at the total notional period of imprisonment and before he had taken other factors into account. The Judge failed to have regard to the totality principle as the last step in the sentencing process, with the result that the ultimate sentence was manifestly excessive.
Furthermore, the appellant complains that the methodology of applying a sentence of imprisonment to each offence, without having regard to personal circumstances and other factors in respect of each offence, constituted an error with a result that the starting point of 35 years at which the sentencing Judge commenced is excessive.
Counsel for the appellant pointed to the fact that these offences occurred over a three-week period. Two of the offences occurred within half an hour. He submits that the approach adopted by the sentencing Judge was incorrect when he applied the range of sentences for aggravated robbery. The Judge failed to have regard to factors such as the period over which the offences were committed, the circumstances of the offending, and personal factors when arriving at the notional head sentence of 35 years.
It is accepted that the Judge turned his mind to the principle of totality before he adjusted the notional sentences for each offence. Counsel for the Director submits that the final sentence imposed was not manifestly excessive, having regard to all the circumstances and the appeal, therefore, should be dismissed.
Discussion
The approach to be taken by a sentencing judge when faced with multiple offending was discussed in Place. In that case, the appellant committed six armed robberies in a period of three weeks. He pleaded guilty at the earliest opportunity and cooperated with the police. In addition to the matters to which he pleaded guilty, he requested that the Court take into account three offences of illegal use and two of threatening a person with a firearm. In a joint judgment, Doyle CJ, Prior, Lander and Martin JJ considered the approach taken by a sentencing judge when considering multiple offences and applying section 18A of the Criminal Law (Sentencing) Act 1988 (SA), which provides:
Sentencing for multiple offences
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 Court dealt with the appropriate time to apply the totality principle. The Court said:[2]
In our opinion the sentencing judge erred in applying the principle of totality to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the plea of guilty. Whether the error had any significant effect upon the ultimate sentence imposed is difficult to ascertain, but his Honour adopted a process which increases the risk of error.
[2] R v Place (2002) 81 SASR 395, 426-7 [90].

The Court had regard to previous decisions which considered totality.[3] In Mill v The Queen, the High Court cited with approval Thomas’s description of the principle:[4]
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’.
[3] See R v Rossi (1988) 142 LSJS 451, 453; Postiglione v The Queen (1997) 189 CLR 295; Mill v The Queen (1998) 166 CLR 59.
[4] Thomas, Principles of Sentencing (2^nd ed, 1979), 56-7, as cited in R v Place (2002) 81 SASR 395, 426 [88].
In R v Bartel,[5] Gray, Sulan and David JJ, in a joint judgment, referred to the principle stated by Thomas. The Court referred to the judgment of McHugh J in both Mill and Postiglione, in the following terms:
The principle so expressed has been approved by the High Court in Mill and Postiglione, where McHugh J described the totality principle in the following terms:
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” 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”. It is also to be observed that Dawson and Gaudron JJ in Postiglione, cited the above passage from Thomas with approval.[6] (References omitted)
[5] [2008] SASC 289.
[6] Ibid 3. [9].
In R v Randall-Smith and Davi,[7] in a majority judgment, Gray and Layton JJ again referred to the totality principle in terms discussed in the authorities to which I have earlier referred. Doyle CJ, who dissented, also referred to the principle, but considered there had been no misapplication of it in that particular case.
[7] (2008) SASR 326.
The totality principle, insofar as it has applicability in any case, must be applied as a last step in the judge’s sentencing process. A sentencing judge, at the conclusion of his or her deliberations, if the judge considers that the totality principle has application, must apply it on the basis that the sentence arrived at is crushing and must be reduced to ensure that the end result is not unjust.
In the present case, the Judge applied the totality principle, having considered the notional sentence for each offence and arriving at a total sentence before he reduced the sentence for the pleas of guilty. The approach was contrary to that prescribed in Place. Having arrived at a total notional sentence of 35 years, the Judge should have reduced the sentence for the plea of guilty and contrition. Applying a reduction of 20 per cent, the result would have been 28 years’ imprisonment. The Judge should have then considered totality.
Although the sentencing Judge was in error in his approach, can it be said that the final sentence arrived at was manifestly excessive? In my view, for reasons which follow, the sentence is not manifestly excessive.
The arithmetical approach
A further question arises as to the Judge’s approach in this case. The Judge approached his task by considering each offence separately, and starting with what he considered to be a sentence within the range of sentences for the offending. He considered the Crows Tavern offending to be the most serious of the offences, having regard to the implied threat of violence and the larger amount of money that had been stolen. He considered a sentence of eight years’ imprisonment would be appropriate for that offence. He then grouped the further four counts of aggravated robbery by deciding that six years on each would be appropriate.
The sentencing Judge dealt with the circumstances of each offence. He observed that the offences were very serious and that they were calmly and competently executed. He noted the effect of the offences upon the victims and that they were “soft targets” for such crimes. He noted the appellant’s letter of apology, and accepted that it was a sincere expression of his contrition. He then dealt in some detail with the appellant’s personal circumstances and with the psychologist’s report. It was after he had dealt with the personal circumstances of the appellant and other relevant matters of mitigation that he then referred to the notional sentence for each offence.
In my view, the Judge was correct in regarding the Crows Tavern offence as more serious than the other offences of aggravated robbery. The Judge gave his reasons for treating that offence more seriously, because it was committed with a co-offender and a larger amount of money was stolen. The starting point of eight years for the Crows Tavern offence was appropriate in the circumstances. As to the other robbery offences, the Judge was correct not to distinguish between them. A starting point of six years’ imprisonment was within an appropriate range for the offences.
Turning to the approach of the sentencing Judge in applying notional sentences to each offence. That approach has been the subject of discussion in a number of cases. The authorities are conveniently summarised by Gray J in R v Copeland (No 2).[8]That was a case in which the appellant had been found guilty of three counts of aggravated robbery, one count of attempted aggravated robbery and one count of using a motor vehicle without the consent of the owner. The sentencing Judge imposed a single sentence of 16 years’ imprisonment in respect of all of the offences, and fixed a non-parole period of ten years’ imprisonment. He applied section 18A of the Criminal Law (Sentencing) Act 1988 (SA). He did not indicate how he arrived at the sentence, and did not approach his task by setting notional sentences in respect of each offence. The Court, Gray, White and Kourakis JJ, considered whether the failure by the sentencing Judge to nominate a notional sentence in respect of each offence, when arriving at an overall sentence pursuant to section 18A, amounted to an error.
[8] (2010) 108 SASR 398.
Gray J discussed a number of authorities which had dealt with the approach a sentencing Judge may take when arriving at an overall sentence in the case of multiple offending.[9] I do not propose to repeat Gray J’s analysis of those authorities. He summarised a number of relevant principles arising from those authorities as follows:[10]
[9] R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Place (2002) 81 SASR 395; R v Nylander (2003) 228 LSJS 24; R v Van Der Horst [2006] SASC 243; R v Power [2003] SASC 288; R v Gibbs (2004) 89 SASR 30.
[10] R v Copeland (No 2) (2010) 108 SASR 398, 409-11 [29].
It is convenient to extract the relevant principles arising from the above authorities:
·The process of sentencing is ultimately a matter of discretion and judgment. The High Court has given its approval to the instinctive synthesis approach and has emphasised that the process of sentencing is not a mathematical exercise.
·The purpose of sentencing remarks is primarily to provide an explanation to a defendant for the sentence imposed, but also to demonstrate that correct principles have been applied. When sentencing remarks address these concerns, not only is the defendant informed about the punishment to which he or she is subject, but it also assists the appellate court in understanding the basis for the sentence and in performing its appellate function. This is reinforced by the terms of s 9 of the Sentencing Act with respect to the obligation to provide reasons for sentence.
·The content of sentencing remarks is a matter of discretion for a sentencing judge.
·In the case of multiple offending, it is necessary for the court if it be a course of conduct, to have regard to that course of conduct. It is also necessary for the sentencing court to have regard to other offences that are to be taken into account and the need to ensure that the defendant is adequately punished.
·There is a need to avoid the artificiality of a sentence that might follow where the sentencing judge approaches the task mathematically at the cost of appropriately weighing all relevant factors which determine the criminality of the defendant’s conduct.
·Section 18A of the Sentencing Act provides sentencing judges with an important tool in allowing the court to overcome the difficulties inherent in sentencing for multiple offences.
·The authorities recognise that in exercising the power conferred by s 18A, the sentencing judge may refer to notional head sentences in the reasons for sentence, or may not.
·The decision not to identify separate notional head sentences for ach offence does not represent an error of law.
·The matter of importance is that an adequate explanation for the sentence is provided in the form that the judge may decide.
·On an appeal against sentence, an error must be identified before a sentence may be interfered with. The relevant inquiry to be made on an appeal against sentence is well established. The court must ask whether specific error has been shown: whether there has been some3 error of principle; whether irrelevant matters have been taken into account; whether the facts have been mistaken; or, whether a relevant matter has not been taken into account. Error may be inferred from a result that is unreasonable or plainly unjust, that is, manifestly excessive or manifestly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.
·When considering an appeal from a sentence imposed utilising s 18A, absent a specific error as set out above, it would be necessary to consider whether the sentence was manifestly excessive or inadequate and infer an error accordingly in keeping with the ordinary appellate approach. (References omitted).
I agree with Gray J’s summary.
Kourakis J was of the view that, when applying section 18A, there are cases when it is desirable to identify sentences which would have been imposed for each offence if the power had not been exercised. However, the failure of a judge to do so was not in an error of law. Kourakis J said:[11]
In my view, this appeal does illustrate the desirability, when the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) is exercised, of identifying the sentences which would have been imposed for each offence if the power had not been exercised. At the very least, it is desirable to set out the following matters: the starting point for the sentences on each individual offence, the broad approach taken to accumulation or concurrency, and whether there has been a reduction of the sentence which would otherwise have been imposed, either on account of a guilty plea, or in accordance with the totality principle.
[11] Ibid 422 [92].
He was of the view that there is utility in explaining how a single sentence is arrived at, and that may be done by reference to individual sentences which would otherwise have been imposed. However, he concluded that a failure to do so is not in itself an error of law. He was of the view that it is a good rule of practice to do so. However, that was not a universal rule, nor was it a legal requirement.
White J was of the view that, in the circumstances of Copeland’s case, the failure of the Judge to give some explanation of the means by which the single sentence of 16 years was determined was an error.
The Court concluded that the overall sentence was not manifestly excessive.
Sentencing remarks should convey to a defendant the relevant matters to which the sentencing judge has had regard. They should indicate to a defendant the weight given to various factors to which the judge regards as relevant. For example, if the judge considers that general deterrence in a particular case carries greater weight than the personal circumstances of the defendant, the judge should say so. The remarks should be sufficiently detailed to enable an appellate court to understand the process of reasoning adopted by the sentencing judge. In my view, there is no requirement upon a sentencing judge to apply a mathematical approach by indicating notional sentences for each offence. This is particularly so in cases of multiple offending where the total sentence arrived at will bear little relationship to the eventual sentence once there has been a lengthy deduction for totality.
On the other hand, if a sentencing judge chooses to approach his or her task in that way, that does not amount to an error of law, even though the final sentence may bear little relationship to the overall sentence arrived at when applying the mathematical approach.
Ultimately, the task of the appellate court is to consider whether a sentence finally imposed is manifestly excessive.
It follows that the sentencing Judge was not in error in applying notional sentences to each offence and arriving at the final sentence in the manner in which he did.
The sentence imposed in this case was severe. A sentence of 15 years and 11 months’ imprisonment in the case of a young man of 23 years of age is a severe sentence. On the other hand, the offending was very serious. It had a profound effect upon the victims. It involved the use of a weapon in each case. The appellant has an unfortunate history of criminal offending and it must be observed that this offending was committed whilst he was on parole, having been released only two months prior to the first offence. In my view, it cannot be said that the sentence was manifestly excessive.
Licence disqualification
As to the licence disqualification of ten years, the Court was provided with a letter from the Department for Correctional Services which advises that, having regard to the period of licence disqualification of ten years, the appellant would not be eligible for driving-related programs offered by the Department to assist prisoners in their rehabilitation. As part of an offender’s rehabilitation, the Department offers a program which teaches prisoners how to drive a forklift and trains them to become accredited to obtain a forklift licence which may assist their future employment. The Department holds a pre-licence program, which is not available for those whose licence has been suspended. Effectively, the length of the licence suspension in this case would prevent the appellant being eligible for any program involving the teaching of driving skills. The utility of imposing a ten-year licence suspension on a person who receives a nine-year non-parole period is questionable. Having regard to the possibility that the appellant may be eligible for a driving program whilst in custody, I would impose a licence disqualification in this case of two years to commence on 13 November 2008, when the appellant was last taken into custody.
Summary
I would dismiss the appeal as to the length of the sentence of imprisonment. I would allow the appeal in respect of the licence disqualification.
Conclusion
The sentence is, therefore, that the appellant be imprisoned for 15 years, one month and 21 days, to commence at the expiration of the unexpired period of parole, making an overall sentence of 15 years and 11 months’ imprisonment, with a non-parole period of nine years’ imprisonment, to commence on 25 January 2011.
The appellant is disqualified from holding or obtaining a driver’s licence for two years, to commence on 13 November 2008.
DAVID J: I would dismiss the appeal as to the length of the sentence of imprisonment, but allow the appeal against the period of disqualification of the appellant’s driving licence and reduce that period to two years to commence on 13 November 2008. I agree with the reasons of Sulan J.