R v Rowe - [2016] SASCFC 33

Supreme Court of South Australia
(Court of Criminal Appeal)
R v ROWE
[2016] SASCFC 33
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Acting Justice David)
24 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeals against three sentences. In May 2001, the appellant committed the offences of aggravated serious criminal trespass in a non-residential building and assaulting a police officer. The appellant was convicted by the verdict of a jury on 7 February 2004. On 30 April 2004, the appellant was sentenced by a District Court Judge to one year and eight months imprisonment. The sentence had been reduced on account of totality and for 31 months spent in custody. Because the appellant had been on parole at the time of the offending, the sentence was cumulative upon a pre-existing unexpired period of parole of 10 years, four months and nine days. The Judge fixed a non-parole period of nine years and seven months to commence from the date of sentence, 30 April 2004.
In June 2001, approximately four weeks after committing the offences that came before the District Court Judge, the appellant committed the offence of shooting with intent to cause grievous bodily harm. The appellant was convicted by the verdict of a jury on 13 December 2002 but was not sentenced until June 2005. The appellant was sentenced to 12 years imprisonment to commence at the expiration of the 2004 District Court sentence, resulting in a total period of imprisonment of 24 years and nine days. The Supreme Court Judge extended the appellant’s non-parole period by 8 years, resulting in a non-parole period of 17 years and seven months from 30 April 2004.
In June 2012, the appellant committed the offence of attempting to escape from custody to which he pleaded guilty. In April 2014, the appellant was sentenced in the District Court to a period of imprisonment of 12 months to commence at the expiration of the 2005 Supreme Court sentence, resulting in a new total period of imprisonment of 25 years and nine days. The District Court Judge extended the non-parole period by three months to 17 years and 10 months.
The appellant has appealed against all three sentences, being the 2004 District Court sentence, the 2005 Supreme Court sentence and the 2014 District Court sentence. The appellant contends that the non-parole periods fixed in the 2004 District Court sentence and the 2005 Supreme Court sentence were manifestly excessive. The appellant further contends that the head sentence of the 2005 Supreme Court sentence was manifestly excessive when regard is had to sentences already and to be served by the appellant and the principle of totality.
In 2015, a Judge granted the appellant an extension of time and permission to appeal with respect to the ground that the non-parole periods were manifestly excessive. The questions of permission with respect to other grounds then relied on but since abandoned and with respect to the question whether the head sentence of the 2005 Supreme Court sentence was manifestly excessive were referred to the Full Court.
Held per Nicholson J (Lovell J and David AJ agreeing), allowing the appeals:
1. The non-parole periods for the 2004 District Court sentence and the 2005 Supreme Court sentence are each manifestly excessive.
2. The head sentence of the 2005 Supreme Court sentence was not manifestly excessive, nor did the Judge err in the application of the principle of totality.
3. The appeal against the 2004 District Court sentence is allowed and the sentence is set aside.
4. For the 2004 District Court offences, the appellant is resentenced pursuant to 18A of the Criminal Law (Sentencing) Act 1988 (SA) to imprisonment for one year and eight months, to commence at the expiry of the unexpired period of parole of ten years, four months and nine days, with a non-parole period of six years and two months. Both the sentence and the non-parole period are to commence on 30 April 2004.
5. Extension of time on ground 3 of the appeal against the 2005 Supreme Court sentence is allowed but permission to appeal is refused.
6. The appeal against the 2005 Supreme Court sentence is allowed. The 2005 Supreme Court sentence is set aside and the appellant is resentenced to 12 years imprisonment, to commence at the expiry of the 2004 District Court sentence, resulting in a total period of imprisonment of 24 years and nine days, commencing 30 April 2004. The non-parole period is extended from six years and two months to 14 years and two months, commencing 30 April 2004.
7. Permission to appeal against the 2014 District Court sentence is granted, the appeal allowed and the sentence is set aside. The appellant is resentenced to imprisonment for 12 months to commence at the expiry of the 2005 Supreme Court sentence, resulting in a total period of imprisonment of 25 years and nine days, commencing on 30 April 2004. The non-parole period is extended by three months, making a new non-parole period of 14 years and five months, commencing on 30 April 2004.
Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 30, s 32; Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Hancock v Prison Commissioners [1960] 1 QB 117; Director of Public Prosecutions v Ty (2009) 24 VR 705, [2009] VSCA 226; Director of Public Prosecutions (Vic) v Toulmin [2013] VSCA 145; R v McQuire [2004] 1 Qd R 685, [2003] QCA 523; Dreja v State of Western Australia [2012] WASCA 151; R v Franceschini [2015] SASCFC 115, (2015) 123 SASR 396; R v Malesevic [1999] SASC 321; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Scarpantoni [2013] SASCFC 120; R v Rowe [2004] SASC 424; R v Dang [2015] SASCFC 89; R v Place [2002] SASC 101, (2002) 81 SASR 395; Chandler v The Queen (1994) 62 SASR 558, considered.

R v ROWE
[2016] SASCFC 33
Court of Criminal Appeal: Nicholson and Lovell JJ and David AJ
NICHOLSON J.
Overview

The appellant is currently serving sentences of imprisonment totalling 25 years and nine days with a non-parole period of 17 years and ten months both commencing 30 April 2004. The total period of imprisonment results from the accumulation of an unexpired period of parole and sentences imposed following three separate sentencing hearings, the first on 30 April 2004. At the time of the first sentencing determination on 30 April 2004, the appellant was in custody on remand and had been so since September 2001, a period of 31 months.
The relevant sentencing determinations are as follows:
(i)On 30 April 2004, the appellant was sentenced in the District Court to a period of imprisonment of 12 years and nine days (which included a period of unexpired parole) with a non-parole period fixed at nine years and seven months. The sentence and non-parole period were to run from the 30 April 2004. As mentioned, prior to this sentence being imposed the appellant had been in custody on remand for 31 months.
(ii)On 3 June 2005, the appellant was sentenced in the Supreme Court to a further 12 years imprisonment with that sentence to commence at the expiration of the District Court sentence. The judge extended the non-parole period by 8 years to 17 years and seven months.
(iii)On 3 April 2014, the appellant was sentenced in the District Court to a period of imprisonment of 12 months with that sentence to commence upon the expiration of the Supreme Court sentence. The judge extended the non-parole period by three months to 17 years and ten months.
The main complaint on appeal is that the non-parole periods fixed in 2004 and 2005, individually and in combination, are manifestly excessive.
Introduction
On 2 May 2014, Michael Dean Rowe filed an application for permission to appeal against a sentence imposed by a District Court Judge in 2004 (the 2004 District Court sentence) and a sentence imposed by a Supreme Court Judge in 2005 (the 2005 Supreme Court sentence) to be served cumulatively on the 2004 District Court sentence. The application for permission was filed almost a decade outside the period within which, according to the Rules, such an application is to be filed. The appellant sought an extension of time.
On 30 April 2004, a District Court Judge sentenced the appellant to imprisonment for one year and eight months for the offence of aggravated serious criminal trespass in a non-residential building and the offence of assaulting a police officer in the execution of his duty, both committed on 14 May 2001 and whilst the appellant was on parole. Upon being convicted of the offences, the appellant became liable to serve a period of ten years, four months and nine days unexpired parole,[1] giving rise to a total period to be served of 12 years and nine days to commence on the day of sentencing, 30 April 2004. The Judge fixed a non-parole period of nine years and seven months also to commence 30 April 2004.
[1] Pursuant to section 75 of the Correctional Services Act 1982 (SA).
On 3 June 2005, a Judge of this Court sentenced the appellant to imprisonment for 12 years for the offence of shooting with intent to do grievous bodily harm committed on 19 June 2001, that is, about four weeks or so after the appellant had committed the offences the subject of the 2004 District Court sentence. The Judge ordered that the 12 year sentence he imposed was to be wholly cumulative on the 2004 District Court sentence and was to commence at its expiration. In effect, the appellant became subject to a new total period of imprisonment of 24 years and nine days. The Judge, as required by section 32(1)(b) of the Criminal Law (Sentencing) Act 1988, reviewed the non-parole period that had been set by the District Court Judge and extended it by a further eight years, giving rise to a new non-parole period to be served of 17 years and seven months.
The appellant has raised only one ground of appeal with respect to the 2004 District Court sentence.
The non-parole period of nine years and seven months commencing on 30 April 2004 was manifestly excessive.
The appellant’s complaint focussed on but was not limited to the contention that the District Court Judge had erred in the manner by which her Honour had dealt with a period of 31 months spent in custody on remand for the relevant offending between September 2001 and April 2004. The application for permission to appeal initially came before a Judge of this Court in 2014. Blue J granted the appellant an extension of time within which to appeal and permission to appeal on this ground.[2]
[2] R v Rowe [2015] SASCFC 124.
Initially, the appellant raised a number of grounds of appeal with respect to the 2005 Supreme Court sentence. However, during the hearing of the appeal, grounds 1 and 2 were abandoned and ground 3 was amended. The grounds of appeal that remain to be considered are as follows.
3. The sentence imposed by [the Supreme Court Judge] was manifestly excessive having regard to:
3.1the sentences already served and being served by the [appellant] including the sentence imposed by [the District Court Judge]on 30 April 2004;
3.2the principle of totality
4. The non-parole period of 17 years and seven months commencing on 30 April 2004 was manifestly excessive.
Blue J granted an extension of time within which to appeal and permission to appeal on the basis of ground 4. However, his Honour referred the questions of extension of time and permission with respect to all other then proposed grounds of appeal, being grounds 1 and 2 (now abandoned) and ground 3 in its original unamended form, to the Full Bench of the Court of Criminal Appeal.
For reasons I later explain, I am not persuaded that ground 3 has merit and would grant an extension of time but refuse permission to appeal on this ground. However, given that Blue J has granted the appellant an extension of time within which to appeal against the 2004 District Court sentence and to appeal, on the basis of ground 4, against the 2005 Supreme Court sentence, it is not necessary to consider in these reasons the appellant’s explanation for the extremely lengthy delay in lodging his application.
In essence, the appellant’s complaint is with the final outcome following the imposition of the 2005 Supreme Court sentence, that is, the total period of imprisonment of 24 years and nine days with a non-parole period of 17 years and seven months, both commencing 30 April 2004. However, on 3 April 2014, the appellant was sentenced by another District Court Judge for the offence of attempting to escape from custody, committed on 12 June 2012. For that offence the appellant was sentenced to a term of imprisonment of one year cumulative on his existing sentence, giving rise to a new total period of imprisonment of 25 years and nine days commencing 30 April 2004. The Judge reviewed the existing non-parole period and extended it by three months to 17 years and ten months. The appellant has no complaint with the 2014 District Court sentence other than the overarching complaint that it was fixed against a background of the two previous sentences each of which, on the appellant’s case, was attended by error such that the sentencing discretion exercised by the District Court Judge in 2014 also should be seen to have miscarried.
After the conclusion of the oral submissions, out of an abundance of caution and at the invitation of the Court, the appellant filed, on 11 December 2015, an application for permission to appeal against the 2014 District Court sentence on the ground adverted to above.
The appellant is now in his early 50s having been born in 1963. Leaving aside his extensive record of offending as a youth, it appears that he was first imprisoned as an adult in 1982. The appellant’s criminal record discloses that the appellant has spent most of his life since then in custody. Blue J, in his comprehensive judgment dealing with various issues relevant to the questions of permission, has described the history of the appellant’s interactions with the criminal justice system from those early days until the 2014 District Court sentence was imposed.[3] That summary was accepted by counsel for the appellant and counsel for the respondent as being accurate. It is not necessary for that very lengthy summary to be repeated here. Nevertheless, that part of the summary which outlines the appellant’s interactions with the criminal justice system to the time he committed the May 2001 offences, the subject of the 2004 District Court sentence, is instructive.[4]
[3]    R v Rowe [2015] SASCFC 124 at [6]-[77].
[4]    R v Rowe [2015] SASCFC 124 at [6]-[15].
The applicant was born in September 1963.
Between 1978 and 1984, the applicant was sentenced initially in the Children’s Court and later in the Magistrates Court for burglary and other offences to which he pleaded guilty.[5]
In September 1984, the applicant was sentenced in this Court for burglary to which he pleaded guilty. He was sentenced to imprisonment for two years and eight months with a non-parole period of 16 months commencing on 28 May 1984.[6] He was released on parole in April 1985.
In June 1988, the applicant was sentenced by Jacobs J in this Court for inter alia robbery, burglary and escaping from prison between June 1985 and July 1987 to which he pleaded guilty.[7] He was sentenced to imprisonment for 21 years and six months backdated to commence on 5 July 1987. A non-parole period of 15 years was subsequently[8] fixed to commence on 5 July 1987.[9] Assuming that he was of good behaviour, under the system of remissions for good behaviour in force as at 1991,[10] the sentence was equivalent to imprisonment for 16 years and six months with a non-parole period of 10 years.[11]
On 9 December 1990, the applicant escaped from prison and committed robbery and burglary. He resumed serving his existing sentences on 16 January 1991 after being at large for 37 days.[12]
In August 1991, the applicant was sentenced by Duggan J in this Court for those new offences, to which he pleaded guilty.[13] He was sentenced to further terms of imprisonment totalling nine years and six months cumulative upon his existing sentences. This resulted in total head sentences of 31 years commencing on 5 July 1987. A non-parole period of 19 years was fixed commencing on 5 July 1987.
On 1 August 1994, the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) abolished remissions for good behaviour. Existing sentences were automatically reduced by the Act[14] and a subsequent Act[15] by past remissions and by the maximum future remissions that could have been earnt under the old system up to expiry of the non-parole period.[16] The effect was to convert the applicant’s head sentences to imprisonment for 24 years and four months and nine days with a non-parole period of 12 years and four months and nine days[17] commencing on 5 July 1987. The non-parole period was due to expire on 20 December 1999.[18]
On 20 December 1999, the applicant was released on parole. There remained 12 years unexpired of the 1988 and 1991 head sentences which were then due to expire on 20 December 2011.
On 14 May 2001, the applicant broke and entered a shed at a residential property at Torrens Park. Sergeant McDaid attended and was assaulted by the applicant. Detective Senior Constable Scott Merrett investigated these offences.
By operation of section 75(1) of the Correctional Services Act 1982 (SA), upon the applicant’s subsequent conviction of those offences, he became liable to serve the balance unexpired as at 14 May 2001 of his 1988 and 1991 head sentences. The balance unexpired was then 10 years seven months and six days.
[5]    Exhibit P13 antecedent report 30 April 2003.
[6]    Exhibit P13 antecedent report 30 April 2003.
[7]    Exhibit P7 sentencing remarks 2 June 1988.
[8]    On 8 December 1989.
[9]    Exhibit P8 sentencing remarks 8 December 1989.
[10] 15 days remission per calendar month served with extra remissions for abnormal circumstances such as industrial disputes and deductions for bad conduct. See Correctional Services Act 1982 (SA) Part 7 ss 79, 79a and 80. Remissions were applied to both the non-parole period and head sentence: s 79(1)(a).
[11] Rounded down to whole months.
[12] The 37 days were not counted as service of his term of imprisonment.
[13] Exhibit D9 sentencing remarks 30 August 1991.
[14] Statutes Amendment (Truth in Sentencing) Act 1994 (SA) s 20.
[15] Statutes Amendment (Correctional Services) Act 1995 (SA) s 4.
[16] Owen v State of South Australia (1996) 66 SASR 251 at 253 per Cox J (with whom Prior J agreed) and 259 per Olsson J.
[17] This was less than two thirds of the non-parole period fixed because industrial disputes had increased past remissions above one third.
[18] This was 37 days more than 12 years and four months and 9 days from 5 July 1987 because the 37 days at large did not count as time served or on parole.
The appellant’s non-parole period is due to expire at the end of February 2022. In the event that the appellant were then to be released on parole he will, at the age of 58, have spent almost the entirety of the previous 38 years in custody.
The appeal against the 2004 District Court sentence rests on one ground only, that the non-parole period imposed by the Judge was manifestly excessive in all of the circumstances. Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provided in 2005 and presently provides that:
(4)Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.

On one view of the matter, any quashing would operate ab initio, that is, from the date the sentence was passed. As such, if the appellant were to succeed with this ground of appeal it would follow that the Supreme Court Judge in 2005 sentenced under a misapprehension of fact as to the length of the non-parole period in place which his Honour was called upon to review and to extend. On this approach, the appeal against the 2005 Supreme Court sentence would have to be allowed and, a fortiori, the appeal against the 2014 District Court sentence would have to be allowed. The appellant would have to be resentenced afresh, starting with the offending the subject of the 2004 District Court sentence.
However, the better view is that if the appeal against the 2004 District Court sentence were to succeed, any order quashing or setting aside the 2004 District Court sentence would operate as from the date of the order and not ab initio.[19] The 2004 District Court sentence would remain valid and effective until the date it were to be set aside. In particular, the 2004 District Court sentence, even if later to be set aside, was valid and effective at the time the 2005 Supreme Court and the 2014 District Court sentences were ordered.
[19] Hancock v Prison Commissioners [1960] 1 QB 117 at 125 and see, for example, Director of Public Prosecutions v Ty (No 2) (2009) 24 VR 705; [2009] VSCA 226, Director of Public Prosecutions (Vic) v Toulmin [2013] VSCA 145, R v McQuire [2004] 1 Qd R 685; [2003] QCA 523, Dreja v State of Western Australia [2012] WASCA 151.
On this view of the matter, the Supreme Court Judge in 2005 and the second District Court Judge in 2014 were each called upon to review and set a new non-parole period that was appropriate in all of the then understood circumstances. On this approach, the question of whether or not there has been any miscarriage of justice, ultimately, would be determined by an analysis of the sentence under consideration irrespective of any previous errors made.
However, a potential difficulty with this latter approach is that it assumes there will be a capacity for any later Judge to moderate any new non-parole period to be fixed by taking into account any error, including manifest excess, committed by the initial Judge when setting the original non-parole period. This practical problem is evident when consideration is given to the 2014 District Court sentence. If it were the case that the non-parole period in the 2004 District Court sentence was manifestly excessive and this error were to have been perpetrated or not taken account of in the 2005 Supreme Court sentence, there would be no capacity for it to be corrected in the 2014 District Court sentence. The Judge added only 12 months to the total period of imprisonment. He was obliged by section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 to review and extend the existing non-parole period. Even if the Judge extended the non-parole period by only one day this may not be sufficient to accommodate a manifestly excessive starting point. By way of contrast, the Supreme Court Judge imposed an additional sentence of 12 years imprisonment and would have had greater scope to appropriately extend the non-parole period even if the starting point was manifestly excessive.
I am satisfied for the reasons that follow that the non-parole period fixed in 2004 was manifestly excessive and that the non-parole period, as extended in 2005, was also manifestly excessive. As a consequence, the three appeals should each be allowed and the appellant resentenced. It is unnecessary to express a concluded view about the meaning of quash as the term is employed in section 353(4).
The 2004 District Court sentence
The appellant was found guilty on 7 February 2004, following a jury trial, of two offences committed on 14 May 2001, being aggravated serious criminal trespass in a non-residential building and assaulting a police officer in the execution of his duty. The circumstances of the offending were summarised by the sentencing Judge in the following terms.
At about 6 a.m. on the morning of 14 May 2001, one of the occupants of a house at Torrens Park woke up to go to the bathroom. She looked out of the upstairs window of the bedroom in which she had been sleeping. It was still fairly dark outside. There was a light on in the granny flat behind the house in the backyard, which was unusual. She saw a man walking around out the back, moving from the granny flat to the shed in the yard, and carrying a torch and a metal bar in his hand. A number of items were moved out of the shed and into the yard.
The police were called. About five minutes later a police officer arrived and after speaking to the owner of the house, he went towards the shed. About five metres from the shed door the police officer saw a man appear in the doorway. The officer identified himself as police and told the intruder to stay where he was.
The man in the shed ran straight at the police officer, hitting him on the right side of his face and stunning him for about 30 seconds. The officer’s right eye was bleeding and became swollen. He was having difficulty seeing out of it. He struggled with the man and they fell to the ground. He tried unsuccessfully to reach his police radio. The intruder tried to choke him from behind, saying he was going to gouge his eyes out. The officer closed his eyes tightly to avoid injury to his eyes. He tried to reason with the intruder, asking him to calm down and telling him that other police would arrive shortly. The intruder demanded one of his police weapons and tried to detach one from the officer’s belt. In the struggle which followed, the intruder hit the police officer on the head with a torch and was himself sprayed with capsicum spray.
The police officer got to his feet and drew his revolver. He told the intruder to stop and get down on the ground. Instead, the man moved towards the police officer who threatened to shoot him. The officer called for assistance on his radio.
The intruder walked away and jumped over a low fence in the back corner of the yard. Other police officers arrived within a few seconds, but the intruder avoided apprehension.
As already observed, these two offences were committed whilst the appellant was serving a very lengthy period of parole. Further, the appellant’s prior criminal record to this point comprised a multitude of offences, including numerous break and enter or similar offences, a number of assaults, numerous public order, motor vehicle related and minor drug offences, numerous damage property, larceny and burglary type offences, various resist and assault police type offences, escape custody offences and three armed robbery offences each committed on a separate occasion.
The Judge in her sentencing remarks reviewed the impact of the offending on the victims which was significant and discussed at some length the appellant’s personal circumstances. The nature of the offending and its consequences were serious. Given the appellant’s personal circumstances and criminal background, there was little, if any, scope for leniency.
The Judge exercised the discretion available to her under section 18A of the Criminal Law (Sentencing) Act 1988 to impose one penalty for both offences. Her Honour expressly took into account, as part of the appellant’s personal circumstances, the fact that upon conviction he became liable to serve the balance of his unexpired period of parole. Her Honour started with a term of imprisonment for five years, noting that this would result in a total period of imprisonment of fifteen years, four months and nine days and then, by reference to the totality principle, reduced the starting point of five years by nine months to four years and three months. Her Honour continued as follows.
It is agreed that it is appropriate to take into account the time you have spent in custody on remand since 27 September 2001, almost exactly 31 months. Accordingly, I make a further adjustment to the term of imprisonment imposed on these offences to one of 1 year and 8 months.
Her Honour ordered that the sentence she had imposed was to commence at the expiration of the unexpired period of parole to be served and noted that the total period of imprisonment that the appellant was liable to serve had become 12 years and nine days commencing on the day of sentencing, 30 April 2004.
Her Honour then turned to the fixing of a non-parole period. In so doing she gave further consideration, in quite some detail, to the appellant’s personal circumstances with a view to assessing his prospects for rehabilitation. Her Honour recognised that the appellant had spent most of his adult life in custody and that he would need a very significant level of support and supervision in the community if he was to have a chance of avoiding incarceration for the rest of his life.
The high degree of assistance required will be most effectively delivered before you have served the whole of your sentence. I recognise that there has been more than one occasion in the past where the optimism associated with the efforts you have made was not justified by your subsequent behaviour. However, neither you nor the community, in which you hope to live, will benefit by your release from custody without supervision and support at the end of your sentence. It is also important that the desire and motivation you have shown to build a decent and rewarding life in the community are not crushed by a further long term of imprisonment with no prospect of or incentive towards rehabilitation.
Her Honour fixed a non-parole period of nine years and seven months also to commence on 30 April 2004.
The appellant contends that the Judge erred in fixing the non-parole period because she failed to properly account for the 31 months already served in custody on remand for the offending. The appellant further contends that, in any event, the non-parole period was manifestly excessive.
It is common ground that the appellant had served and was entitled to be credited with 31 months and that the Judge properly allowed for this with respect to the head sentence. Where time in custody on remand is to be allowed, a sentencing judge usually will have a choice whether to deduct the time from a notional head sentence or whether to make no deduction but to backdate the sentence appropriately.[20] Where possible and permissible it is usually more appropriate to backdate rather than to deduct.[21]
[20] Section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA).
[21] See, generally, R v Franceschini (2015) 123 SASR 396; [2015] SASCFC 116 at [23]-[61].
Had the Judge not made any deduction but backdated both the head sentence and a non-parole period that had been fixed in that context, the concern raised by the appellant would not have arisen and there would be no doubting that the appellant would have received the full benefit of the 31 months in custody with respect to both the head sentence and any non-parole period.
The appellant maintains that the result, more favourable to the appellant, achieved by backdating the non-parole period, would have been replicated by the fixing of a notional head sentence, the fixing of a notional non-parole period with reference to that notional head sentence and then deducting 31 months from both the notional head sentence and the notional non-parole period. This would result in a final head sentence and non-parole period to be imposed from the date of sentencing. The appellant complains that the Judge erred in only employing the first part of this process. By deducting 31 months from the notional head sentence only, the appellant did not get the full benefit of the 31 months with respect to non-parole period. Mathematically this may be so. However, the Judge did not err in this respect.
The alternative approach propounded by the appellant might be seen as more beneficial to the appellant but that does not mean it is necessarily unfair or erroneous not to adopt that approach. The position contended for by the appellant is not supported by authority. In R v Malesevic[22] Doyle CJ (with whose reasons Bleby and Wicks JJ agreed) explained the two possible approaches and why it is not necessarily erroneous to choose one rather than the other.
[22] [1999] SASC 321 at [34]-[45].
I turn now to the fixation of the non-parole period.
It is at this point that counsel submitted that the judge erred. As I have already said, the judge deducted the credit for the plea of guilty, for the time in custody and for the time on home detention bail from the head sentence, and then calculated a non-parole period in relation to the balance head sentence of 32 months' imprisonment. Counsel for the appellant submits that this is erroneous. She submits that after having arrived at the credit to be given for the guilty plea, and thus having arrived at a notional head sentence, the judge should next have calculated the appropriate non-parole period in relation to that notional head sentence, and should then have deducted the credit for time in custody and time on home detention bail directly from the head sentence and from the non-parole period.
She submits that unless this is done the credit for the time in custody and on home detention bail will be less than it otherwise would be. She makes the point that if the commencement of the head sentence and of the non-parole period were back-dated to the time at which the appellant were taken into custody the result for which she contends would be achieved. There is no basis in principle, she submits, for taking an approach that produces a different result when the sentence is not or cannot be backdated. In the present case it cannot be back-dated because of the intervening period of home detention custody.
I agree that the approach taken by the District Court judge means that a lesser credit may have been given against the non-parole period for time in custody and on home detention bail, than would have been given on the approach that counsel submits should be taken.
However, I do not agree that a sentencing judge is obliged to take the approach advocated by counsel for the appellant. The fixing of a non-parole period is a distinct step in the sentencing process. It requires the consideration of a number of factors that are equally relevant to the fixing of the head sentence, but as is well known it allows for greater scope to be given to factors personal to the offender: see, for example, The Queen v Creed (1985) 37 SASR 566 and Pight v The Queen (1995) 64 SASR 215. If the Court is giving credit for time spent in custody, as it usually would, it is appropriate for the Court to bear in mind that the extent of the credit given will depend upon whether the period for which credit is given is deducted from the head sentence and the non-parole period, or only from the head sentence and before a non-parole period is calculated. However, in my opinion it cannot be said that the approach advocated by counsel for the appellant is necessarily the correct one and must be adopted. For example, I note that in R v Creed at 568 King CJ referred to the fact that the proportion of the non-parole period to the head sentence was somewhat different if one took into account the period that the offender had spent in custody in that case.
The final issue for the sentencing judge in the sentencing process is the fixation of an appropriate non-parole period, taking into account all of the circumstances relevant to that process, and also bearing in mind any time already spent in custody. As long as the judge makes proper allowance for time spent in custody, complaint cannot validly be made on the basis that the judge failed to take one approach rather than the other to the fixation of the non-parole period. The important thing is that the non-parole period reflect the gravity of the crime, as well as the other matters that should be taken into account: see R v Creed (above). It is permissible, and usually simpler and more convenient, to fix the non-parole period in relation to the final head sentence arrived at, rather than to fix a notional non-parole in relation to a notional head sentence, and then to make deductions from each of them.
That it is not necessary to fix a non-parole period by reference to a notional head sentence before deduction of any period in custody is reinforced by a consideration of s 30(2), s 30(5) and s 32(7) of the Criminal Law (Sentencing) Act 1988. Section 30 deals with the commencement of sentences and non-parole periods. Section 30(2) reads:
"(2) Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may - (a) make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or (b) direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody."
The language of the subsection is permissive and enables the court to "have regard" to the period spent in custody. It does not require that there be a strict mathematical calculation. If the court follows the course permitted by s 30(2)(b), the non-parole period will commence on the day on which the defendant was taken into custody: s 30(5). The court has a choice between these two approaches. By contrast, s 32(7) is in rather different terms. That section deals generally with the fixing and extension of non-parole periods. Section 32(7) reads:
"(7) In fixing or extending a non-parole period, the court - (a) must, if the person in respect of whom the non-parole period is to be fixed or extended is in prison serving a sentence of imprisonment, take into account the period already served; and (b) (irrelevant)."
This subsection does not say the court "may ... have regard to" the period spent in custody, but that it "must ... take into account" such period. That requires a calculation of greater mathematical precision than do the provisions of s 30(2).
I therefore do not accept that the judge erred in law in the approach that he took. The ultimate question is whether the sentence is manifestly excessive, bearing in mind the time that the appellant had already spent in custody.
It is appropriate for a sentencing judge to bear in mind the impact on the sentence of time already spent in custody, and on home detention bail when credit is to be given for that time. It is desirable to consider whether an appropriate reflection of those matters requires the fixation of a lower non-parole period in relation to the final head sentence than might at first seem appropriate. But I emphasise that the ultimate issue is the fixation of the appropriate non-parole period in relation to the final head sentence.
As I have earlier emphasised, I do not consider that a sentencing judge can be required to follow either one of these approaches as a matter of law. At the end of the day, one must stand back and consider the adequacy of the non-parole period in relation to the head sentence.
I would reject this aspect of the appellant’s ground of appeal. However, I turn now to explain why the non-parole period fixed was, nevertheless, manifestly excessive.
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, on the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen[23] a plurality in the High Court characterised the enquiry in this way.
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King[24], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
Ordinarily, an appellate court when deciding the question of manifest excess will include in the factors to be considered: the maximum penalty for the relevant offence; the range of sentencing customarily observed for the type of offence; the seriousness of the offence committed; and the personal circumstances of the offender.[25]
[23] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow and Callinan JJ).
[24] (1936) 55 CLR 499 at 504-505.
[25] R v Scarpantoni [2013] SASCFC 120 at [81] (Kourakis CJ and Sulan J).

In this case, the complaint is not with respect to the head sentence but with respect to the non-parole period. The general approach to the issue of manifest excess is equally applicable when directed to a non-parole period. However, in this case, the issue is complicated by the fact that a substantial proportion of the total period of imprisonment, against which the parole period has been fixed, is comprised of the activated unexpired period of parole. The proportion is 71 per cent if the proportion is calculated by including the 31 months already served or 85 per cent if the proportion is calculated after allowing for the 31 months already served.[26]
[26] The first calculation is derived by comparing the period of unexpired parole, ten years, four months and nine days, with the notional total period of imprisonment of four years and three months plus ten years, four months and nine days, that is, 14 years, seven months and nine days. The second calculation derives from a comparison of the period of unexpired parole, ten years, four months and nine days, with the final total period of imprisonment of one year and eight months plus ten years, four months and nine days, that is, 12 years, two months and nine days.
The non-parole period was not fixed solely with reference to the fresh offences committed by the appellant and, as such, the factors typically considered (the maximum penalties for the offences, the range of sentencing customarily observed for the type of offences, and the seriousness of the offences committed) need to be viewed in a much wider context.
At the time of committing the offences that came before the Judge, the appellant’s unexpired period of parole was ten years, four months and nine days. He was sentenced to imprisonment for four years and three months, making a total period of imprisonment of 14 years, seven months and nine days, of which he had already served 31 months. The non-parole period fixed was nine years and seven months in addition to the 31 months, in effect, 12 years and two months. This effective non-parole period[27] represented 83 per cent of the effective total period of imprisonment ordered. On its face the effective non-parole period was a very high proportion of the effective total period of imprisonment and one which allowed for only a relatively short period (two years, five months and nine days) on parole.
[27] My use of the term “effective non-parole period” throughout these reasons might be seen as, in part, a misnomer. It is the case that the actual non-parole period ordered partially took into account the 31 months served in that it was fixed with reference to a head sentence arrived at after allowing credit for the 31 months (see the earlier discussion with reference to Malesevic). In these reasons, I use the term “effective non-parole period” to identify the actual period of imprisonment that will have to be served (that is, including the 31 months on remand) by the appellant before being eligible to apply for parole.
Furthermore, the vast bulk of the non-parole period represented or resulted from the reinstatement of the unexpired period of parole for prior offending. A closer look at the mathematics is instructive.
For the sake of argument, assume that the new offending, standing alone, attracted a severe non-parole period of 80 per cent of the effective head sentence of four years and three months, that is, a non-parole period of three years and five months. Deducting this from the effective new non-parole period of 12 years and two months, leaves eight years and nine months or 85 per cent of the unexpired period of parole that was incorporated into the effective head sentence.
On this analysis, the appellant has been sentenced for the new offending with a severe non-parole period, which sentence has been informed by the aggravating feature that the new offences were committed whilst on parole. However, in addition, he has also been required to serve, at a minimum, 85 per cent of a very substantial period of unexpired parole. There is an element of capriciousness here made more manifest according to the length of the unexpired period of parole or the length of time served on parole before re-offending. Here the unexpired period was very lengthy and the breach occurred relatively early.
The non-parole period, as fixed, also is to be considered against the background of the appellant having been in custody for in excess of 13 of the 17 or so years between 1984 (when the appellant was still only 21) and September 2001.[28] September 2001 was when the appellant commenced serving the period of 31 months on remand before being sentenced by the District Court Judge on 30 April 2004.
[28] See the custodial history summarised earlier.
Blue J, in his judgment following the permission hearing, concluded that it was reasonably arguable that the non-parole period set by the Judge was manifestly excessive and observed as follows.[29]
The ratio of non-parole period to head sentence of 83 percent referred to above does not take into account the fact that the applicant had already served approximately 11 years and six months[30] of his pre-existing sentences in addition to the balance yet to be served. If that period were also taken into account, it would result in a higher ratio of non-parole period to total head sentences.
In fixing the non-parole period, it was appropriate for the Judge to take into account that by the May 2001 offending for which he was to be sentenced the applicant had breached the conditions of his parole. However, the position might be compared with the approach of Duggan J who sentenced the applicant in August 1991 in analogous circumstances in which the applicant had escaped from prison and committed a series of offences when he should have been in prison. Duggan J fixed a non-parole period being the modern equivalent of 12 years and eight months in respect of head sentences being the modern equivalent of 24 years and eight months. The ratio of non-parole period to head sentences was just over 50 percent.
By 2001, the applicant was 10 years older than in 1991 and had committed the May 2001 offences in breach of parole and in the circumstances a non-parole ratio in excess of 50 percent was called for. However, given that he had spent the vast majority of his adult life in custody, a substantial period of supervision under conditions on parole was in the interests of the community.
In the circumstances, it is reasonably arguable that the non-parole period fixed by the District Court Judge was manifestly excessive and resulted from the Judge overlooking the very lengthy periods spent in custody before 30 April 2004, being the date on which the sentence imposed by the Judge commenced. Apart from the applicant needing an extension of time in which to appeal, the criterion for permission to appeal is satisfied.
[Footnote supplied]
[29] R v Rowe [2015] SASCFC 124 at [137]-[140].
[30] On my calculation (above) it was more like 13 years.
I agree with these observations. In my view the point is more than reasonably arguable. The non-parole period set was, in all the circumstances then before the Judge, unreasonable and plainly unjust; it was manifestly excessive.
The 2005 Supreme Court sentence
On 19 June 2001, a little more than four weeks after committing the offences that came before the District Court Judge, the appellant committed the offence of shooting a person with intent to do grievous bodily harm contrary to section 21(c) and (e) of the Criminal Law Consolidation Act 1935 as then enacted. The appellant was on parole at the time.
The appellant was convicted by the verdict of a jury on 13 December 2002. For various procedural reasons the appellant’s appeal against conviction was not concluded until 17 December 2004 on which date the appeal was dismissed by the Court of Criminal Appeal.[31] For reasons it is unnecessary to outline here, sentencing submissions were not heard and sentencing did not take place until after the Court of Criminal Appeal handed down its decision. By then, the Judge who had presided at the trial had retired due to ill health, another Judge who had taken over the proceedings had resigned upon taking up a position in the Federal Court and the sentencing task was undertaken by a third Judge of this Court.
[31] R v Rowe [2004] SASC 424.
The Judge ascertained the factual basis for the offending in reliance on a prosecution summary of the evidence at trial, accepted by counsel for the appellant at that time as accurately reflecting the prosecution case and as comprising a proper basis upon which the Judge might rely. The factual basis of the offending identified by the Judge and as recorded in the sentencing remarks was as follows.
The victim, George Douglas Thompson, worked as a crash repairer at Lonsdale. At about 1 p.m. on 19 June 2001, he was at his work premises when he was approached by [the appellant]. He was a stranger to [the appellant]. He asked [the appellant] what he could do for [the appellant] and [the appellant] replied ‘You pissed off a mate of mine’. [The appellant] then shot Mr Thompson three times. He received gunshot wounds to his left and right thighs and his right forearm. [The appellant] then left the premises.
A number of people who were in the vicinity at the time of the shooting heard shots and came to Mr Thompson’s assistance. There was direct evidence from a Mr Ravlic, that [the appellant] had purchased a hand gun from a person named Jim at the Royal Hotel. [The appellant] paid $800 in cash. The original price was $1,800 but it was reduced by $1,000 in return for [the appellant] agreeing to do a job for Jim. Ravlic gave evidence that [the appellant] told him that [the appellant] had shot Mr Thompson. [The appellant] told Ravlic that [the appellant was] meant to go and bash somebody up but instead [the appellant] shot him.
[The appellant was] arrested in the early hours of the morning on 30 June 2001 when police received information that [the appellant was] in a room at an Adelaide Motel at Gepps Cross. After a siege which lasted several hours, [the appellant] surrendered [himself] to the police. Various items were located at the motel, including a pistol, which was the pistol that had been used to shoot Mr Thompson. There was circumstantial evidence from which the jury concluded that [the appellant] had shot Mr Thompson.
I conclude that the shooting of Mr Thompson was for personal gain. [The appellant] had no other motive to confront Mr Thompson.
As a consequence of [the appellant’s] act, Mr Thompson has suffered physical and psychological injuries and financial hardship. I have had regard to his victim impact statement, in which he has informed the court that he suffers from nightmares continually and that he is unable to sleep properly. He feels fear when he is approached by strangers. He has lost confidence and a desire to socialise and meet new people.
Prior to the shooting, he had suffered pain from arthritis. As a result of [the appellant’s] acts, he suffered a broken leg and he was required to be on crutches for about eight weeks. He has continued to suffer pain and has had a number of operations. His family suffers from his mood swings and bouts of paranoia.
At the time of the shooting, he was self-employed and was working long hours to establish his business. As a consequence of his injuries, he was unable to work and was required to sell his home and close his business. He and his wife are now under increased financial pressure. Due to the crime, he has sold his home and feels a sense of loss from having to leave it. He is unable to explain why he was a victim of [the appellant’s] crime.
The Judge summarised, in brief terms, the appellant’s history including his prior criminal record and referred to the contents of a pre-sentence report, a psychological assessment and a psychiatric report. The psychiatrist concluded that the appellant had an anti-social personality disorder and a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, a failure to stay in consistent work and a childhood history of a conduct disorder which constituted an anti-social personality disorder. The Judge continued as follows.
Dr Raeside has observed that although anti-social tendencies and an antisocial view of the world will always remain, eventually a person becomes too old to continue to re-offend and they adjust their behaviour to avoid ongoing difficulties with law enforcement agencies and to avoid recurrent prison sentences and disruption in their living.
Dr Raeside concluded, however, in [the appellant’s] case there is little indication that [the appellant has] reached that stage. He concluded that there are a number of features suggestive of institutionalisation which will make it more difficult for [the appellant] to cope adequately in the community. [The appellant’s] future prognosis is, therefore, poor.
The Judge observed that the appellant was presently serving the 2004 District Court sentence and that any sentence for the shooting offence would operate cumulatively on that sentence. In addition, the Judge noted that he was required to review and extend the non-parole period that had been fixed by the District Court Judge.
The Judge clearly was troubled by the appellant’s “unfortunate history” and stated that he intended to impose “the minimum sentence which [he considered to be] appropriate for [the appellant’s] offending”. The Judge also indicated that, contrary to the submission put by the Director of Public Prosecutions, he would have regard to the principle of totality. Nevertheless, when setting both the head sentence and the non-parole period the Judge was very much influenced by the following considerations.
On the other hand, this offending was so serious and [the appellant’s] past history of offending is so grave that a prime object in sentencing [the appellant] must be the protection of the community from future similar conduct. [The appellant’s] past history of offending gives me little confidence that [the appellant] will not again offend in the future... [A]ny sentence I impose must reflect the seriousness of [the appellant’s] conduct and act as not only a deterrent to [the appellant], but also a deterrent to others who might use firearms against other people.
In setting a non-parole period, I have taken all matters into account, but again, I consider that the non-parole period must reflect the seriousness of [the appellant’s] offending and the fact that in the past [the appellant has] breached parole and reoffended in the most serious way.
His Honour indicated a starting point for the sentence to be imposed of 16 years imprisonment but reduced it by four years on account of the principle of totality. He directed that the sentence of 12 years was to commence at the expiration of the 2004 District Court sentence, resulting in a total period of imprisonment of 24 years and nine days. The Judge extended the existing non-parole period of nine years and seven months by eight years resulting in a new non-parole period of 17 years and seven months which had commenced and was to continue from 30 April 2004.
By ground 3, the appellant contends that the sentence imposed by the Judge was manifestly excessive having regard to the sentences already served and being served by the appellant and the principle of totality.
I consider first the question of totality. During oral submissions, counsel for the appellant contended that the Judge misapplied the principle of totality. It was contended that the Judge erred by applying totality only to the notional sentence for the new offending of 16 years, rather than to the total period of imprisonment that would result by adding the 16 years to the total of 12 years and nine days then being served. It was submitted, in effect, that if the question of totality had focussed on or been applied to the total of 28 years and nine days, rather than just the notional 16 years, a reduction greater than four years could and should have been allowed.
In circumstances where the principle of totality might have a role to play, a sentencing court will stand back at the end of the process and have a last look with a view to reducing a sentence that, whilst appropriate having regard to the offending and the personal circumstances in question, might be seen as so severe as to be crushing and to provide the prisoner with no hope. I repeat what I said recently in R v Dang[32] with reference to the assistance provided by R v Place.[33]
[32] R v Dang [2015] SASCFC 89 at [35].
[33] [2002] SASC 101; (2002) 81 SASR 395.
This is not a case that calls for the application of the doctrine of totality. The doctrine of totality operates as a last check once a proper sentence, determined according to law, has been fixed upon. There will be occasions when a sentence, so determined, is nevertheless such as would be crushing, so as to call for the merciful intervention of the Court. The Court of Criminal Appeal in R v Place[34] made the following observations concerning the principle of totality and its application.
In R v Knight (1981) 26 SASR 573, this Court had occasion to consider the question of totality in circumstances where one of three sentences was ordered to be served cumulatively upon two concurrent sentences. As to the principle of totality, the court said (p 576):
“To use the language of Lord Parker L.C.J. in Reg. v Faulkner [(1972) 56 Cr. App. R. 594 at p.596], “at the end of the day, as one always must, one looks at the totality and asks whether it was too much.”
King CJ described the principle of totality in R v Rossi (1988) 142 LSJS 451 at 453:
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect … “
In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencin process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
The totality principle was considered by the High Court in Mill v The Queen (1988) 166 CLR 59. In a joint judgment, the High Court cited with approval the remarks in Knight to which we have referred and also approved of the following description of the principle in Thomas, Principles of Sentencing, (2nd ed. 1979) at pp 56-57 (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
The principle was again considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295. McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence “is a just and appropriate measure of the total criminality involved” (p 308). Kirby J described the principles of “parity” and “totality” as “in the nature of checks” to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was “then” that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality (pp 340-341).
[34] [2002] SASC 101; (2002) 81 SASR 395 at [85]-[89] (Doyle CJ, Prior, Lander and Martin JJ with whose reasons Gray J agreed).

The application of the principle of totality raises other considerations where the final “sentence” to be reviewed consists of a sentence to be imposed which is to operate cumulatively on either an activated unexpired period of parole or another sentence passed on an earlier occasion and being served at the time of sentencing. In the appellant’s case, a very substantial proportion of the existing 2004 District Court sentence was the unexpired period of parole activated by force of statute.[35] Its quantum cannot be interfered with by a Judge later exercising the principle of totality. In Chandler v The Queen[36] King CJ (with whose reasons Prior and Perry JJ agreed) said this.
In R v Rossi (1988) 142 LSJS 451 speaking for the Court of Criminal Appeal and applying R v Margetson (unreported, Court of Criminal Appeal, 16 October 1987), I pointed out that although the unexpired portion of the previous sentence could not be taken into account strictly on the principle of totality it was nevertheless part of the personal circumstances of the offender which the court ought to take into account in considering a sentence which was to be imposed. When one considers the ultimate result of the sentence imposed by the learned sentencing judge one is forced to the conclusion that his Honour did not have regard to that personal circumstance, or did so to an extent which was less than the circumstance warranted. I think that if proper weight is given to the fact that the sentence imposed must be cumulative upon an unexpired sentence of nine years and six months the sentence actually imposed is seen to be manifestly excessive. I think, therefore, that this Court should intervene to reduce the length of the head sentence.
[35] Section 75(1) of the Correctional Services Act 1982 (SA) provides, in part,
(1) where –
(a) a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended...
the person is liable to serve in prison the balance of the sentence... in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed... .
[36] (1994) 62 SASR 558 at 560.
The Judge was required to take account of the total period of imprisonment that would apply were he to impose a head sentence for the offending before him of 16 years when considering the question of totality. However, any reduction to be made on that account could only be effected by reducing the proposed head sentence of 16 years itself. This is what the Judge did.[37] His Honour was alive to the fact that potentially the appellant was facing a total period of imprisonment of 28 years and nine days. The Judge made no error with respect to the approach he took to the question of totality.
[37] And is what the District Court Judge did in 2004.
There having been no error in the approach taken, the question of whether four years was a sufficient reduction on account of the principle of totality remains to be considered as does the question of whether the head sentence of 12 years was manifestly excessive (appeal ground 3.1).
Given the appellant’s appalling prior criminal record, the serious nature of the offence of shooting with intent to cause grievous bodily harm and the circumstances of this offence as outlined by the Judge, a starting point of 16 years imprisonment, whilst severe, was not outside the range available to his Honour. The Judge had directed himself that, because of the seriousness of the offending and the appellant’s past history, the primary object in sentencing had to be the protection of the community from future similar conduct. Nevertheless, the Judge also expressed his intention to impose what he regarded to be the minimum sentence which could be seen as appropriate for the offending.
A starting point of 16 years was not, in the circumstances, unreasonable or plainly unjust and was not manifestly excessive, even when considered against the background of the sentences then being served and previously served.
In addition, I am satisfied that the reduction of four years from the total of a little over 28 years was within the range available to the Judge when considering the question of totality. I would refuse permission to appeal on ground 3 of the appeal against the 2005 Supreme Court sentence.
By ground 4, the appellant contends that the extended non-parole period of 17 years and seven months imposed by the Judge was manifestly excessive. This represented approximately 73 per cent of the new total period of imprisonment of 24 years and nine days. However, when extending the non-parole period the Supreme Court Judge was obliged to have regard to the fact that the appellant had served 31 months in addition to the 2004 District Court non-parole period as fixed.
The 31 months was canvassed, somewhat obliquely, during the sentencing submissions. While it was put to his Honour that the 31 months had been “taken into account”, no explanation was proffered by counsel at the time as to how that had been done. The fact that, in addition to the non-parole period fixed by the District Court Judge, the appellant had spent a further 31 months in custody was a factor, and an important one, when it came to the extension of the existing non-parole period. This was not made clear to his Honour. When fixing a new non-parole period, his Honour had to have regard to the total length of time the appellant would spend in custody. It is not apparent that he did so.
The effective total period of imprisonment imposed as a result of the 2005 Supreme Court sentence was 26 years, seven months and nine days and the total effective non-parole period imposed was 20 years and two months. The true proportion of non-parole period to total period of imprisonment was 76 per cent.
For the same reasons as earlier given concerning the non-parole period fixed as part of the 2004 District Court sentence, the new non-parole period fixed in 2005 was manifestly excessive. Furthermore, it is artificial to consider the 2005 Supreme Court sentence without also having regard to my conclusion that the 2004 District Court sentence was manifestly excessive and should be set aside. As explained in more detail below, I would resentence the appellant with respect to the 2004 District Court sentence by maintaining the same head sentence and total period of imprisonment but reducing the non-parole period to six years and two months. This non-parole period would be in addition to the 31 months already served on remand. The 2005 Supreme Court sentence should be considered against this background. Maintaining the extended non-parole period of 17 years and seven months imposed by the Judge would mean that an additional 11 years and five months would be added to the non-parole period I would impose, in addition to the 31 months already served on remand. It follows that the manifest excess embedded in the 2004 District Court sentence was not allowed for but was perpetuated in the 2005 Supreme Court sentence.
To allow the 2005 Supreme Court non-parole period to stand notwithstanding the manifest excess embedded in the 2004 District Court non-parole period would result in a substantial miscarriage of justice.
Conclusion
For these reasons, I would allow the appeals and set aside each of the 2004 District Court, 2005 Supreme Court and 2014 District Court sentences and proceed to resentence the appellant.
Resentencing upon setting aside the 2004 District Court sentence
I see no reason to depart from the Judge’s approach, apart from the fixing of the non-parole period and the method by which the 31 months spent in custody on remand is to be accounted for.
To the period of unexpired parole of ten years, four months and nine days I would add the Judge’s notional head sentence of four years and three months (after allowing for totality) making a notional total period of imprisonment of 14 years, seven months and nine days. A notional non-parole period of 60 per cent would be eight years and nine months. I would deduct the 31 months time served on remand from both. This results in a head sentence for the two offences before the District Court Judge of one year and eight months and a total period to be served of 12 years and nine days which is the position, in this respect, arrived at by the Judge. However, I would fix a different final non-parole period of six years and two months (the notional 60 per cent non-parole period less the 31 months credit). This is still a very substantial non-parole period in addition to the 31 months already served and bearing in mind that the new offending attracted a starting sentence of only four years and three months.
Resentencing upon the setting aside of the 2005 Supreme Court sentence
Again, I would not interfere with the head sentence of 12 years imposed by the Judge for the shooting offence after taking account of totality. The total period the appellant is liable to serve would remain at 24 years and nine days commencing 30 April 2004. Like the Judge, I would extend the “existing” non-parole period by two thirds of that head sentence, that is, eight years. However, this would be in addition to the new non-parole period I would fix with respect to the 2004 District Court sentence of six years and two months, giving rise to a new non-parole period of 14 years and two months. This new non-parole period represents 59 per cent of the total period of imprisonment, calculated after deducting the 31 months served on remand. The true or effective non-parole period (that is, after including the 31 months served) represents 63 per cent of the true or effective total period to be served (that is, after including the 31 months served).
Resentencing upon the setting aside of the 2014 District Court sentence
I would adopt the same approach as did the District Court Judge but applied to the new “existing” non-parole period. Like the Judge, I would impose a head sentence for the attempted escape offence of 12 months imprisonment, giving rise to a new total period of imprisonment of 25 years and nine days. Like the Judge, I would extend the non-parole period by a further three months, leading to a new non-parole period of 14 years and five months.
Both the total period of imprisonment of 25 years and nine days and the non-parole period of 14 years and five months commenced and will continue from 30 April 2004. The non-parole period I would order would expire at or about the end of September 2018 in lieu of February 2022 for the non-parole period under appeal.
Orders
I would make the following orders.
1.Appeal against the 2004 District Court sentence allowed.
2.Set aside the 2004 District Court sentence.
3.Resentence the appellant, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to imprisonment for one year and eight months for the offences of aggravated serious criminal trespass in a non-residential building and assaulting a police officer in the course of duty which sentence is to commence at the expiry of the unexpired period of parole of ten years, four months and nine days which commenced 30 April 2004.
4.Fix a non-parole period with respect to the 2004 District Court sentence of six years and two months also to commence 30 April 2004.
5.Extension of time granted but permission to appeal against the 2005 Supreme Court sentence on ground 3 refused.
6.Appeal against the 2005 Supreme Court sentence on ground 4 allowed.
7.Set aside the 2005 Supreme Court sentence.
8.Resentence the appellant to imprisonment for 12 years for the offence of shooting with intent which sentence is to commence at the expiry of the sentence of one year and eight months referred to in order 3, making a total period of imprisonment of 24 years and nine days commencing 30 April 2004.
9.Extend the non-parole period referred to in order 4 by eight years, making a new non-parole period, referable to the 2005 Supreme Court sentence, of 14 years and two months commencing 30 April 2004.
10.Permission to appeal against the 2014 District Court sentence granted and the appeal allowed.
11.Resentence the appellant to imprisonment for 12 months for the offence of attempting to escape custody which sentence is to commence at the expiry of the sentence of 12 years referred to in order 8 making a total period of imprisonment of 25 years and nine days commencing 30 April 2004.
12.Extend the non-parole period referred to in order 9 by three months making a new non-parole period, referable to the 2014 District Court sentence, of 14 years and five months commencing 30 April 2004.
LOVELL J.
I agree that the appeal should be allowed. I agree with the reasons of and orders proposed by Nicholson J.
DAVID AJ.
I agree with the reasons and orders of Nicholson J.