R v Sevo - [2006] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SEVO
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
28 April 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Appeal against sentence - whether trial Judge erred in applying s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a number of offences - error of law made out - trial Judge failed to distinguish between notional and indicative sentences and the sentences actually imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) - matter remitted to the District Court for re-sentencing.
Criminal Law Consolidation Act 1935 (SA) s 29(3), s 86A, s 169, s 170, s 170(1), s 270A(3)(c), s 353(4)(a)(ii); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Road Traffic Act 1961 (SA) s 46(1), s 46(3), referred to.
R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Waugh (2005) 93 SASR 274; Police v Nowak (2000) 76 SASR 551, applied.
R v Rossi (1988) 142 LSJS 451, discussed.
R v Symonds [1999] SASC 217; R v P (2003) 87 SASR 287; R v Gibbs (2004) 89 SASR 30; R v B, BWK (2005) 91 SASR 200; Postiglione v The Queen (1997) 189 CLR 295; Johnson v R [2005] HCA 15; R v Place (2002) 81 SASR 395; R v Becker (2005) 91 SASR 498, considered.

R v SEVO
[2006] SASC 124
Court of Criminal Appeal: Doyle CJ, Bleby and White JJ

DOYLE CJ: At the hearing of this appeal against sentence the Court allowed the appeal, set aside the sentence imposed by the District Court, and remitted the matter to the District Court pursuant to s 353(4)(a)(ii) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) for re-sentencing by another judge.
The Court did so without hearing full submissions on the appeal. It made these orders because the sentences were wrong in law, making it necessary in any event that Mr Sevo be re-sentenced.
I propose to identify, as briefly as I can, the errors affecting the sentences imposed.
Mr Sevo pleaded in the District Court and in the Magistrates Court to no less than 35 offences committed between August 2003 and August 2004. The Judge sentenced him in respect of all of the offences.
For present purposes it is not necessary to list all of the offences. They included offences of serious criminal trespass in a place of residence contrary to s 170 of the CLCA; offences of serious criminal trespass in non-residential premises contrary to s 169 of the CLCA; offences of theft of property from some of these premises; an offence of creating a risk of bodily harm contrary to s 29(3) of the CLCA; three offences of illegal use of a motor vehicle contrary to s 86A of the CLCA; an offence of driving an unregistered and uninsured motor vehicle, and two offences of driving a motor vehicle in a manner dangerous to the public, one of which involved the deliberate ramming of a police motor vehicle.
The offending came to an end on 24 February 2004 when Mr Sevo was driving a motor vehicle while being pursued by the police. As it happens, he was driving whilst disqualified from holding or obtaining a driver’s licence. The driving in question was one of the offences of driving in a manner dangerous to the public. Mr Sevo collided with a stobie pole suffering significant injuries, including significant brain damage.
Mr Sevo has a poor record. He committed a substantial number of offences beginning with offences in 1998 dealt with by the Children’s Court, through to 2004. The offences now under consideration appear to have been attributable to Mr Sevo’s need to obtain money to buy drugs to which he was addicted.
The number and variety of offences, and the different penalty provisions that applied to the various offences, made the task of sentencing Mr Sevo a complex one. As well, the Judge had to take into account the fact that Mr Sevo had suffered brain damage, the impact of imprisonment in light of that, and the significance of the brain damage for Mr Sevo’s prospects of rehabilitation.
The Judge’s sentencing remarks, the endorsement of the sentences on the Information, and the information in the “Report of Prisoner tried” disclose an error that invalidates the sentencing process.
The Judge’s approach was to impose separate penalties in respect of individual offences, although sometimes the Judge used s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) to impose a single sentence for linked offences. For example, when dealing with the offences of serious criminal trespass and theft, the Judge imposed a single sentence for each such pair, exercising the power conferred by s 18A of the Sentencing Act. The Judge also made orders for certain of the sentences to be served cumulatively upon others, and for some sentences to be served concurrently with others.
The sentences imposed in this manner amounted to an aggregate sentence of imprisonment of 26 years, taking account of the orders for concurrence and accumulation.
But, having done this, the Judge then reduced the aggregate sentence to one of 23 years and 4 months. He did this on the basis that Mr Sevo was entitled to a reduction in the sentences on account of his pleas of guilty, which reduction the Judge fixed at 10 per cent. The Judge reduced the sentence again, by reference to considerations of totality, to a sentence of imprisonment for 18 years 10 months, which the Judge noted could be achieved “coincidentally” by ordering that certain of the individual sentences be served concurrently.
Thus, the end result as recorded is a head sentence of imprisonment for 18 years 10 months, in relation to which the Judge fixed a non-parole period of 8 years.
This approach was not open to the Judge having regard to the provisions of the Sentencing Act, and in particular to the provisions of s 18A.
If the Judge’s wish was to impose separate sentences in respect of particular offences or groups of offences, as the Judge purported to do, any reduction for a plea of guilty or on account of considerations of totality, had to be reflected in those separate sentences. It is not possible under the Sentencing Act to impose separate sentences, as the Judge did, to aggregate those separate sentences, and then use s 18A of the Sentencing Act to reduce the aggregate. That results in more than one sentence for a given offence. For example, the court records show that for a particular offence of non-aggravated serious criminal trespass (non residential) and theft the court imposed a sentence of imprisonment for one year six months. But the court record also purports to record an aggregate head sentence of 18 years 10 months for this and other offences. That cannot be done.
This is a case in which it was convenient to make use of s 18A. There is no reason why the Judge should not have imposed a single sentence under s 18A for all offences, provided that they were offences that attracted a sentence of imprisonment. But the proper approach was to indicate the sentences that would have been appropriate for individual offences if they were being dealt with individually, or as it has sometimes been said, to determine notional sentences, and in the course of doing so to decide whether, had s 18A not been utilised, it would have been appropriate for those indicative or notional sentences to operate concurrently with or cumulatively upon other indicative or notional sentences. In this manner the appropriate aggregate sentence, to be imposed under s 18A, could be determined. This would result in only one sentence of imprisonment being imposed in respect of all offences, that being done under s 18A, and being the aggregate of the indicative or notional sentences.
That is quite different from imposing individual sentences, as the Judge did, and then imposing a further single sentence in respect of all offences under s 18A.
The reason for “building up” the aggregate sentence in this way is that attention to the appropriate sentence for the individual offences, or groups of offences, provides a basis for the sentencing court arriving at a single global sentence for all of the offending. This approach avoids the risk of error through what might be called an unguided or instinctive leap to a single aggregate sentence. There is a risk of error in the latter approach, when there is a number of offences involved, each of them attracting different minimum or maximum penalties. A further reason for spelling out the basis upon which the aggregate sentence is arrived at is that this enables the approach of the sentencing court to be understood and tested on appeal. The reasons for this approach have been considered by this Court in R v Major (1998) 70 SASR 488 at 490 Doyle CJ; R v Gale [1999] SASC 309; (1999) 74 SASR 235 at [18]-[19] Bleby J and in R v Waugh [2005] SASC 470; (2005) 93 SASR 274 at [42]-[43] White J.
As the Court has said in the past, it will not always be necessary or appropriate to go through these steps. The circumstances in which it may be unnecessary or inappropriate were considered in R v Symonds [1999] SASC 217 at [22] Doyle CJ; in R v P [2003] SASC 428; (2003) 87 SASR 287 at [67]-[70] Perry J; in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at [2]-[3] Doyle CJ, at [44]-46] Perry J, at [126]-[128] Mullighan J, and in R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [17] Doyle CJ and at [24]-[25] Vanstone J.
However the determination of a sentence in exercise of the power conferred by s 18A is approached, it is necessary to observe the distinction between indicative or notional sentences (that indicate how the single aggregate offence is determined), and sentences actually imposed (some of which might involve the use of s 18A) resulting in an aggregate sentence that is not imposed under s 18A, but is simply the sum of separately imposed sentences. That is the distinction that the Judge has failed to observe.
The failure to observe that distinction invalidates the sentences that have been imposed. As I have said, the sentencing remarks and the court records indicate that the Judge has purported to sentence Mr Sevo twice in respect of each offence. He has imposed a sentence in respect of individual offences and sometimes groups of offences, and then purported to impose a further single sentence under s 18A in respect of all of the offences.
That final step in the sentencing process is further flawed because as part of it the Judge has reduced the aggregate sentence on account of Mr Sevo’s pleas of guilty. If separate sentences were to be imposed in respect of individual offences or groups of offences, that reduction had to be reflected in the separate sentences imposed.
Similarly, it was not open to the Judge as matter of law to apply the totality principle in the manner in which he did so. It was open to proceed as he did if the only sentence imposed was a single aggregate sentence imposed under s 18A.
There are some errors of lesser significance that should be identified, so that they are not repeated when Mr Sevo is re-sentenced.
In his sentencing remarks the Judge referred to offences of illegal use of a motor vehicle on 27 January 2004, on 11 February 2004 and on 23 February 2004. He treated the latter two offences as subsequent offences, attracting a higher maximum penalty under s 86A of the CLCA, on the basis that the offence of 27 January 2004 was a first offence. Decisions of this Court in relation to the predecessor provision to s 86A are to the effect that a person cannot be punished for an offence on the basis that it is a subsequent offence unless the subsequent offence was committed after the recording of a conviction for the offence that is treated as the first offence: see Police v Nowak [2000] SASC 82; (2000) 76 SASR 551. In the interests of consistency that approach should be followed, unless the Full Court indicates otherwise. This means that the Judge should have proceeded on the basis that that maximum punishment for each of the latter two offences was imprisonment for two years, because no conviction had been recorded when these offences were committed. The Judge imposed a sentence of imprisonment for three years in respect of the offences of 11 February 2004 and 23 February 2004. That was an error.
One of the offences for which the Judge sentenced Mr Sevo is an offence of attempted serious criminal trespass in a place of residence. The maximum penalty for that offence is imprisonment for ten years, being two-thirds of the maximum penalty for the completed offence, which maximum penalty is 15 years: see s 170(1) and s 270A(3)(c) of the CLCA. The Judge proceeded on the basis that the maximum punishment for this offence was imprisonment for a term of seven years.
The offences before the Judge included an offence of breach of a bail agreement. The Judge noted that the maximum punishment for this offence was a fine of $1,500 or imprisonment for two years. In fact, the maximum fine is a fine of $10,000.
The offences before the Judge included two offences of driving in a manner dangerous to the public, contrary to s 46(1) of the Road Traffic Act 1961 (SA). The Judge correctly treated these offences as subsequent offences, because Mr Sevo had previously been convicted of driving at a speed dangerous to the public, contrary to s 46(1), within the preceding five years.
At the time when these offences were committed the maximum penalty for a subsequent offence, which these were, was a fine of not less than $300 and not more than $600, or three months’ imprisonment. The Judge sentenced Mr Sevo to imprisonment for one year on one of these charges, and to a single sentence of imprisonment for one year on the other charge of driving in a manner dangerous to the public, but that single sentence also applied to an offence of driving while disqualified from holding or obtaining a driver’s licence and an offence of damaging property. The former of these sentences clearly exceeds the statutory maximum. It may be that an error as to the statutory maximum also affected the sentence imposed in respect of the latter of these offences.
Moreover, s 46(3) of the Road Traffic Act as it then stood required that upon convicting a person for this offence, the Court must order licence disqualification for a period specified in the section. This was not done.
Although the Court did not hear submissions in support of the argument that the sentence was or the sentences were manifestly excessive, it is desirable to comment on two matters relevant to that.
The reduction of 10 per cent on account of the pleas of guilty is rather low if, as the Judge recorded, the pleas of guilty were entered at an early stage. Moreover, in making the same reduction in respect of all offences, the Judge may have failed to take into account the circumstances of individual offences. Mr Sevo pleaded guilty to charges of creating a risk of bodily harm and of theft laid in respect of an incident on 23 February 2004. The prosecution acknowledged that his pleas to those offences had been entered at the first opportunity after the prosecution indicated that those pleas would be accepted in satisfaction of counts which alleged aggravated robbery as well as the offence of creating a risk of bodily harm. That acknowledgement was made again on appeal. As well, there was a real question as to whether Mr Sevo was fit to stand trial, having regard to the effects of the brain damage that he sustained in the motor vehicle accident referred to earlier. It was proper for his legal advisers to investigate that matter, as they did. If the Judge thought there had been some delay in the entry of the pleas of guilty, the need to investigate that matter is a factor for which allowance should be made.
Finally, I refer to the Judge’s reference to the principle of totality. He said that it was appropriate to reduce the overall sentence from a sentence of imprisonment for 23 years to a sentence of imprisonment for 18 years 10 months by reference to this principle, having regard to Mr Sevo’s age, his mental condition and “the other matters referred to”. This suggests that when he came to consider the question of totality, he considered for a second time matters that were relevant when arriving at an appropriate punishment for the offences.
The scope and application of the principle of totality is not completely clear. There is a helpful discussion of the matter in Fox and Freiberg, Sentencing: State and Federal Law in Victoria (2^nd ed, Oxford University Press, 1999) at 9.623-9.625. The principle is considered in Postiglione v The Queen (1997) 189 CLR 295 at 307-309 McHugh J, at 321-322 Gummow J and at 340 Kirby J; in Johnson v R [2004] HCA 15 at [18]-[22] Gummow, Callinan and Heydon JJ; in R v Place [2002] SASC 101; (2002) 81 SASR 395 at [84]-[90] Doyle CJ, Prior, Lander and Martin JJ; in R v B, RWK at [21]-[23] Vanstone J and in R v Becker [2005] SASC 186; (2005) 91 SASR 498 at [50]-[56] Gray, Sulan and Layton JJ. While considerations of totality may involve, by way of background, consideration of the matters relevant when arriving at an appropriate sentence, I think it is preferable to treat the principle as involving a final consideration, once appropriate sentences had been determined, of whether, as King CJ said in R v Rossi (1988) 142 LSJS 451 (cited by McHugh J in Postiglione at 308):
… 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.
To say this is not to say that considerations of totality were irrelevant. It is to say, rather, that at this stage the focus is on whether the effect of what would otherwise be appropriate sentences is so crushing as to call for some reduction, wholly or mainly on the grounds of mercy. The other point that can be made is that if a single sentence is to be imposed exercising the powers conferred by s 18A, one would expect this issue to be addressed as part of that process.
Finally in remitting the matter to the District Court I indicated on behalf of the Court that the sentencing judge was likely to find it helpful to have an appropriate expert report that explained the extent of the cognitive impairment attributable to Mr Sevo’s brain damage, and a report as to the treatment if any that Mr Sevo might still require to deal with his drug addiction, and the treatment or support he might need to assist him to cope with his cognitive impairment.
BLEBY J: I agree with the reasons now given by the Chief Justice.
WHITE J: The reasons now published by the Chief Justice are, in substance, my reasons for joining in the orders made on 10 April 2006 that the appeal be allowed, the sentence imposed by the District Court be set aside and that the matter be remitted to the District Court for re-sentencing by another judge. There is nothing which I wish to add.