R v Simpson - [2004] SASC 307

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIMPSON
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
1 October 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - the appellant was sentenced in the District Court for multiple offending to a term of imprisonment of 11 years with a non parole period of six years - offending included multiple counts of aggravated criminal trespass, non-aggravated criminal trespass and larceny - offending involved between $350,000 and $400,000 of property - sentence appealed on the grounds that the sentence imposed was manifestly excessive; the sentencing judge erred by sentencing the appellant in relation to four different groups of offences and failed to take into account whether the offences formed a course of conduct; and that the sentencing judge failed to make an appropriate reduction for the appellant's guilty pleas and cooperation with investigating authorities - consideration of jurisdiction of court to determine appeals heard in District Court after originating in the Magistrates Court - discussion of section 19(3) of the Criminal Law (Sentencing) Act 1988 (SA) - consideration of the principle of totality and discussion of section 18A of the Criminal Law (Sentencing) Act - consideration of approach to be taken when sentencing for related offences - consideration of appellant's prospects of rehabilitation - consideration of appellant's cooperation with the investigating authorities - consideration of appellant's early guilty plea, contrition and remorse.
Held - sentence imposed in the District Court manifestly excessive - sentencing judge failed to have due regard to the appellant's rehabilitation, the sentencing judge failed to make an appropriate reduction for the pleas of guilty, contrition and remose and the appellant's cooperation with respect to offending that would otherwise be unresolved - appeal allowed, sentence imposed in the District Court set aside - appellant resentenced - serious offending called for immediate custodial sentence - appellant sentenced to head sentence of 9 years and 6 months imprisonment with a non parole period of 5 years.
Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 18A, s 19(3); Supreme Court Rules 1988 (SA) r 96C; Criminal Law (Consolidation) Act 1935 (SA) s 352(1)(a)(iii), referred to.
R v Gibbs [2004] SASC 187; The Attorney General v Tichy (1982) 30 SASR 84; R v Elliot [2001] SASC 101; Griffiths v The Queen (1988-89) 167 CLR 372; Skrjanc v R (1994) 71 A Crim R 347; R v Major (1998) 70 SASR 488; R v Kelly [2000] SASC 293; R v Symonds [1999] SASC 217; R v Power [2003] SASC 288; R v Elliot [2001] SASC 101; The Queen v White (1981) 28 SASR 9; Flentjar v Daire (1983) 32 SASR 101; R v Hunt (1977) 15 SASR 476; R v Place (2000) 81 SASR 395; Vartzokas v Zanker (1989) 51 SASR 277; Power v French (1973) 6 SASR 100; R v Proom (2003) 85 SASR 120; R v Ryan (2001) ALR 193; R v Malvaso (1989) 168 CLR 227; R v Golding (1980) 24 SASR 161; Walker v R (1994) 178 LSJS 271; R v Cox (1996) 66 SASR 85; R v Harris (1994) 64 SASR 85; Weininger v The Queen (2003) 212 CLR 629; R v Harris & Simmonds (1992) 59 SASR 300; R v Rossi (1988) 142 LSJS 451, considered.

R v SIMPSON
[2004] SASC 307
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. I have had the benefit of an opportunity to consider the reasons for judgment of Gray J. I am indebted to him for his explanation of the charges and his summary of the factual background, including the circumstances of the appellant.
I agree with him as to the outcome of the appeal.
However, I will add some comments as to the appropriateness of the grouping of the offences by the trial judge, for the purposes of determining sentence.
The Approach of the Sentencing Judge
Gray J has summarised the manner in which the sentencing judge structured the sentence under appeal.
The sentencing judge was confronted with a difficult task, given the multiplicity of offences. He specifically applied his mind to the question of the appropriate approach to sentencing for multiple offending, and referred to Major,[1] Symonds,[2] Place,[3] Power,[4] R v P[5] and Nylander.[6]
[1] (1998) 70 SASR 488.
[2] [1999] SASC 217.
[3] (2002) 81 SASR 395.
[4] [2003] SASC 288.
[5] [2003] SASC 428.
[6] [2003] SASC 191, (2003) 228 LSJS 39.
One can sympathise with the sentencing judge when he went on to observe:
“It is no simple matter to discern just what sentencing approach is indicated in any particular case involving multiple offending …”
The answer is that there is no one approach which is necessarily right, to the exclusion of other approaches. The sentencing judge is entitled to exercise a certain amount of discretion and flexibility, and for that matter, practicality. As Doyle CJ observed in Symonds:[7]
“What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.”
[7] [1999] SASC 217 at [21].
In some cases it will be convenient and appropriate to aggregate, with a degree of concurrence and accumulation, individual sentences, so as to achieve a single penalty which may be expressed as a single sentence pursuant to s 18A. At other times, it maybe “appropriate and convenient to go directly to the single sentence to be imposed”.[8]
[8] Ibid at [22].
I would not criticise the sentencing judge for commencing by indicating an appropriate penalty for the four groups of offences which were the subject of each of the four informations. After all, joinder of two or more offences on the one information is expressly sanctioned under the Criminal Law Consolidation Act 1935 (s 278(1)), and would normally reflect the fact that the charges were “founded on the same facts, or form, or are part of, a series of offences of the same or similar character”.
The approach adopted by the sentencing judge at least gave an element of transparency which otherwise might have been lacking.
On the other hand, this was probably one of those cases where it would be equally appropriate, perhaps better, to proceed at the start direct to a single overall sentence.
At the end of the day, the function for this Court is simply to determine whether the overall sentence which was imposed, however it was reached, has been shown to be manifestly excessive.
Conclusion
The overall offending was very serious indeed, and represented a persistent course of criminal conduct extending over a long period of time.
The appellant has a poor criminal record, and although he is not to be sentenced again for that, this circumstance gives very little buoyancy to his prospects of successful rehabilitation, even if the measures suggested by Dr Balfour were to be put into effect.
On the other hand, I agree with Gray J that a fairly considerable allowance in favour of the appellant should be made on account of his co-operation with the authorities, which brought to light a number of offences upon which he otherwise would not have been charged.
In a matter such as this it is impossible to do other than to take a broad view of the sentencing process. While, as I have indicated, the sentencing judge is not to be criticised for taking the approach which he did, I am inclined to think that the preferable approach would have been to go simply to a single head sentence.
In all the circumstances, I agree with Gray J that the final result of the process followed by the sentencing judge was a sentence which was manifestly excessive, notwithstanding the seriousness of the offending.
I agree with Gray J that an appropriate starting point is 18 years imprisonment. I agree with the other reductions and allowances which he makes, leading to a head sentence of 9 years and 6 months.
I agree also that an appropriate non-parole period is 5 years.
I agree that the appeal should be allowed, and the sentence varied accordingly.
NYLAND J: I agree with the remarks of Perry J as to the approach taken by the sentencing judge but I otherwise agree that the appeal should be allowed for the reasons expressed by Gray J and I agree with the sentence proposed by him.
GRAY J:
This is an appeal against sentence.
On 12 March 2004 the appellant, Alfred Simpson, was sentenced in the District Court for multiple offending to a term of imprisonment of 11 years. A non parole period of six years was fixed.
The Charges
On 17 February 2004 the appellant pleaded guilty to two counts of aggravated serious criminal trespass to residential property, 25 counts of non aggravated serious criminal trespass to residential property, two counts of non aggravated serious criminal trespass to non residential property, 31 counts of larceny, one count of attempted property damage, one count of receiving and two counts of unlawful possession and illegal use of a motor vehicle without consent. The offending resulted in the breach of a suspended sentence bond. The majority of the dishonesty offences related to serious criminal trespass occurring during the period of 2001 to 2003.
On 17 December 2003 the appellant admitted additional uncharged conduct. The conduct comprised one offence of aggravated serious criminal trespass in a place of residence, 32 offences of serious criminal trespass in a place of residence and 31 offences of larceny.
As earlier observed, much of the appellant’s offending involved aggravated or non aggravated serious criminal trespass in residential and non residential premises. The appellant would frequently damage property to gain entry to premises and then remove items of value such as computer equipment, electrical goods, jewellery, clothing and cash. On most occasions the occupants of the residential premises were not at home. Other offending behaviour included the larceny of vehicles, credit cards and mobile phones. Police investigations of reported incidents resulted in the discovery of the appellant’s DNA at a number of the premises entered. Police reports suggest that the appellant’s offending involved between $350,000 and $400,000 of property. Property to the value of approximately $70,000 has been recovered. None of the appellant’s offending involved personal violence.
Antecedents
At the time of sentencing, the appellant was aged 41 years. He was born in Scotland and moved to Australia with his parents as a child. His parents divorced when he was four years of age. He then resided with his father in rural Victoria. The appellant had regular contact with his mother until the age of 13 or 14 years. His relationship with his father led to an exposure to alcohol abuse and violence. The appellant’s father re-married when the appellant was five years of age. He had an abusive relationship with his stepmother.
The appellant left home and school when aged 13 years and lived on the streets. His offending behaviour began at this time. He became a ward of the State and was placed in juvenile residential institutions. He frequently absconded. The appellant has not had any contact with his mother since he was 22 years of age. His father died in 1987.
The appellant has a long history of dishonesty offending. This has been described as being primarily drug related. The appellant had spent more than 18 years in custody prior to the present offending.
By the age of 18 years the appellant had become entrenched in an offending and drug using lifestyle punctuated with frequent periods of incarceration. He told Dr Balfour, a psychologist, that he “always loved using heroin and continues to do so” however he added that as he has matured he has realised the negative consequences of drug use and seeks to be free of these consequences.
At the time of sentencing the appellant had developed a positive relationship with his defacto partner – a relationship which has existed for some seven years. However, he appeared to lack a wider supportive family or social network within the community.
Following his release from prison in 1997, the appellant maintained a relatively stable lifestyle. However during 2000, after his defacto partner was diagnosed with cancer, he began using amphetamines. His offending recommenced.
The appellant has had periods of employment including work as a caterer, scaffolder and forklift driver. Whilst in custody he successfully completed Year 9 level schooling and attained skills as a bricklayer.
As noted in the psychological report of Dr Balfour, following the present offending the appellant displayed a desire to break the cycle of criminality that has plagued his life. Dr Balfour observed that the appellant had demonstrated a genuine desire to end his drug dependent lifestyle.
Psychological evidence before the Court confirmed the appellant’s prospects for rehabilitation. However, the likelihood that he will cease to offend is poor without the assistance of appropriate rehabilitation programmes. It was considered that further periods of incarceration would make it increasingly difficult for the appellant to successfully re-integrate into society.
The Approach of the Sentencing Judge
The sentencing judge considered the gravity and extent of the appellant’s offending. He was mindful of the need to protect the public from such criminal behaviour. Regard was had to the victim impact statements. He gave particular consideration to the need for general and personal deterrence.
The judge acknowledged the appellant’s expressions of remorse and the level of insight he had recently displayed in regard to his offending. It was acknowledged that the appellant was keen to break from his cycle of criminality and had some prospects for rehabilitation. The judge noted the assistance the appellant provided to the police. Reductions were made on account of the appellant’s pleas of guilty, contrition and remorse.
The judge observed that the appellant had been previously convicted of serious criminal trespass and larceny and sentenced to 18 months imprisonment with a non parole period of nine months. This sentence was suspended upon the appellant entering into a bond for a period of 12 months. The present offending occurred during that 12 month period. As a result, the suspended sentence was revoked and the earlier sentence of 18 months imprisonment activated.
The judge divided the appellant’s offending into four groups with the intention of initially dealing with each group of offending separately:
What I propose to do is deal with each group of offending separately, but within each group I intend to indicate the appropriate penalty for that group of offences. I will then fix a total head sentence, having regard to whether your sentences ought to be cumulative or concurrent, and taking into account the principle of totality.
The first set of offences comprised one count of serious criminal trespass, four counts of larceny and one count of unlawful possession. This offending occurred during November and December 2001 in Adelaide. For this group of offences the judge would have imposed a term of imprisonment of four years, reduced to three years on account of the pleas of guilty.
The second set of offences involved serious criminal trespass and larceny occurring on 19 March 2002 at Royal Park. In relation to this group of offending the sentencing judge would have imposed a term of imprisonment of two years, however this was reduced to 18 months on account of the pleas of guilty.
The third set of offences occurred during 2001 within the Glenelg and Brompton areas. It involved serious criminal trespass, larceny, interference with a motor vehicle without consent, damage to property, receiving stolen property and unlawful possession. A sentence of five years imprisonment would have been imposed for this offending, however the sentencing judge reduced this sentence to three years and six months on account of the pleas of guilty.
The fourth set of offences related to offending at Port Adelaide during December 2003. It comprised of a further 50 offences, including charges of larceny, aggravated serious criminal trespass, serious criminal trespass and illegal use. A sentence of imprisonment of seven years would have been imposed for this offending, however this was reduced to five years on account of the pleas of guilty.
The judge indicated that he would make the terms of imprisonment cumulative, and arrived at a starting point of 13 years imprisonment, with an additional 18 months imprisonment as a result of the breach of bond. He then had regard to the principle of totality and the provision of section 18A of the Criminal Law (Sentencing) Act 1988 (SA):
I am mindful of the interest of me not imposing a sentence that is crushing. Taking into account the principle of totality, I reduce the sentence from 13 years to 9 years and 6 months. I impose that sentence under s18A of the Criminal Law (Sentencing) Act 1988 for all the offences to which you have pleaded guilty. Upon that sentence, the 18-month imprisonment for the breach of bond will be served cumulatively.
A head sentence of 11 years was imposed and a non parole period of six years was fixed.
Jurisdiction
The sentence the subject of the present appeal considered summary matters that would, in the ordinary course, proceed in the Magistrates Court. However, these matters were referred to the District Court for sentencing as their subject matter related to the other offences charged. As a result, it is necessary to consider whether or not a sentence imposed by a District Court judge, when exercising his or her power to deal with matters ‘brought up’ from the Magistrates Court,[9] is limited by section 19 of the Sentencing Act. Section 19(3) relevantly provides that the Magistrates Court does not have the power to impose a sentence of imprisonment that exceeds two years.
[9]Section 22 of the Magistrates Act 1983 provides: a Judge of the Supreme Court or the District Court ‘may exercise the jurisdiction, powers or functions of the magistrate.’ Section 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 confers a similar power in more general terms.
In Gibbs[10] the appellant was sentenced to a single term of imprisonment with respect to multiple offences that constituted a ‘course of conduct’. Many of the offences were summary matters that had been pending in the Magistrate’s Court and were referred to the District Court to be dealt with together for the purpose of sentencing. Perry J observed:[11]
When, as was the case here, a District Court judge exercises the jurisdiction, powers or functions of a magistrate and imposes a sentence of imprisonment with respect to matters which had previously been pending in the Magistrates Court, he or she is not saddled with the restriction imposed by s 19(3) of the Sentencing Act.
That subsection imposes a limitation upon the length of a sentence of imprisonment which may be imposed by the Magistrates Court.
…[W]hen hearing and determining proceedings which had been instituted in the Magistrates Court, the District Court judge sits as a judge of the District Court, not as the Magistrates Court.
It follows that the imposition of a sentence by a District Court judge sitting as the District Court pursuant to either s 22 of the Magistrates Act or s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act, is not the imposition of a sentence by the Magistrates Court within the meaning of s 19(3) of the Sentencing Act.
Any restriction on the sentencing powers of the Magistrates Court is of no application in such a case.
[10] [2004] SASC 187
[11] [2004] SASC 187 at [35] –[ 40]

At the hearing of the appeal a question was raised as to the proper jurisdiction of the appeal proceedings. The appellant brought an application for leave to appeal against sentence before this court. This application was heard by a single judge and leave was granted. The right to institute appeal proceedings was exercised pursuant to section 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) which relevantly provides:
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the leave of the Full Court;
However, as earlier observed, the sentence the subject of the present appeal included the consideration of Magistrates Court matters that were referred to the District Court for the purpose of sentencing. This gave rise to the question of whether an appeal against a sentence that involves a District Court judge exercising the powers of a magistrate ought to be instituted pursuant to section 42 of the Magistrates Courts Act 1991 (SA). That section relevantly provides:
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
…
(2) The appeal lies--
…
(b) in any other case--to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
Supreme Court Rule 96C deals with appeals instituted under this section and provides:
An appeal pursuant to section 42 of the [Magistrates Court] Act shall be instituted within 14 days of the making of the judgment be serving a notice of appeal upon the Registrar of the Registry of the Court which made the said judgment the subject of the appeal.
The question of whether an appeal against a sentence imposed in respect of both District Court and Magistrates Court matters ought to be instituted in accordance with section 352(1)(a)(iii) of the Criminal Law Consolidation Act or section 42 of the Magistrates Court Act was considered by this Court in Gibbs where Perry J observed:[12]
[T]here was an appeal by leave of this Court from that part of the sentence imposed by the sentencing judge as related to matters which proceeded either in the District Court or in the Magistrates Court on information. As I have observed, this applies to most of the matters.
As for the part of the sentence imposed with respect to the unlawful possession charges which had been prosecuted on complaint in the Magistrates Court, there is a right of appeal (as to which no leave was necessary) pursuant to s 43(2)(c) of the District Court Act.
I see no reason why in such a case a single notice of appeal cannot be lodged in this Court, and to the extent that leave may be required, an application for leave should then be entertained.
In this case, the fact that the application for leave was entertained with respect to the whole of the sentence under appeal is of no consequence, as leave was granted and the appeal proceeded as to all elements of the sentence in question.
[12] [2004] SASC 187 at [98] to [101]
Doyle CJ agreed with the comments of Perry J on this issue and noted:[13]
The single sentence imposed by the sentencing Judge is a sentence passed on a conviction on information, and so is subject to appeal pursuant to the provisions of s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The sentence, to the extent that it is imposed in respect of matters prosecuted on complaint, may well attract the right of appeal provided by s 43 of the District Court Act 1991 (SA), for the reasons given by Perry J. However, in R v Allen [2002] SASC 98; (2002) 81 SASR 434, this Court held that when a District Court judge imposes sentence in respect of a matter prosecuted on complaint, an appeal is governed by s 42 of the Magistrates Court Act 1991 (SA).
I acknowledge the force of the reasons advanced by Perry J for concluding that that decision was wrong, and is not strictly binding on this Court. However, I would not depart from the decision without hearing full argument, and before us the issue was not examined in complete detail.
I agree that this is an issue that warrants the attention of Parliament. When a District Court judge deals with offences prosecuted on information filed in that Court, and an offence is prosecuted on complaint filed in the Magistrates Court, but dealt with by the District Court judge exercising statutory powers that enable the judge to do so, it should be possible to appeal against the resulting sentence, whether a single sentence in exercise of the power under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) or a series of separate sentences, by means of a single notice of appeal to the Full Court of the Supreme Court, subject to a grant of leave to appeal in accordance with the procedure under s 352(1)(a)(iii) of the CLCA. It should not be necessary to file separate notices of appeal in respect of matters that were initiated in the District Court and in the Magistrates Court.
In the present case the appellant attempted to comply with the procedure dictated by the decision in R v Allen, and filed a second notice of appeal in the Magistrates Court. However, the appellant did not comply with r 96C of the Supreme Court Rules, which regulates appeals from the Magistrates Court pursuant to s 42 of the Magistrates Court Act. Under the circumstances, I would dispense with further compliance with the requirements of r 96C of the Supreme Court Rules.
[13] [2004] SASC 187 at [9] – [12]
In the present case, the appellant instituted appeal proceedings in accordance with section 352(1)(a)(iii) of the Criminal Law Consolidation Act. Proceedings were not instituted pursuant to section 42 of the Magistrates Court Act. As the sentence the subject of this appeal was imposed in respect of matters arising both in the District Court and those referred by the Magistrates Court, it would seem contrary to common sense to require the appellant to comply with two varying procedural requirements when instituting appeal proceedings. The appeal is competent. In so far as Rule 96C has application an order should be made dispensing with the need to comply with its terms.
Issues on Appeal
On 28 May 2004 leave to appeal was granted on the following grounds:
-that the sentence imposed was manifestly excessive, both in relation to head sentence and the non parole period imposed;
-that the sentencing judge erred by sentencing the appellant in relation to four different groups of offences and failed to take into account whether the offences formed a course of conduct consisting of a series of criminal acts of the same or a similar character;
-that the sentencing judge failed to make an appropriate reduction for the offences where the accused had confessed and when he was not then a suspect;
and
-that the sentencing judge erred in failing to identify the reduction made for the appellant’s co-operation with investigating authorities.
A Course of Conduct
The approach to be taken to multiple offending forming one course of conduct was discussed in The Attorney General v Tichy by Wells J:[14]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterisation rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
These remarks were approved by Gaudron and McHugh JJ in Griffiths v The Queen.[15]
[14] (1982) 30 SASR at 84 at 92
[15] (1989) 167 CLR 372 at 393
Section 18A of the Sentencing Act provides sentencing authorities with a discretion[16] to impose the one sentence for multiple offences:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
When imposing the one sentence pursuant to section 18A it is open to a sentencing authority to consider what would be appropriate separate sentences for each offence, whether they should be concurrent or cumulative and then finally, whether the totality principle should be applied.[17] However, in Symonds Doyle CJ observed that other approaches may be taken:[18]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[16] Skrjanc v R (1994) 71 A Crim R 347
[17] R v Major (1998) 70 SASR 488; R v Kelly [2000] SASC 293
[18] [1999] SASC 217 at [21]
In some cases, separately considering the appropriate sentence for each offence can create an ‘air of unreality’, particularly when numerous offences are involved. Where criminal conduct cannot be sensibly considered in isolation, it is appropriate to consider the total criminality and culpability of the offending when arriving at a single sentence.[19] In Power Sulan J, with whom Doyle CJ and Besanko J agreed, observed:[20]
The approach in this case gives transparency to the manner in which the sentencing judge has approached his task. However, that approach can in some instances be of limited value, particularly in cases where by imposing individual notional penalties, the final penalty arrived at is so high that it creates an air of unreality. The consequence of imposing notional sentences where an offender commits a series of serious offences can result in a head sentence which has little bearing to the final sentence imposed when all the relevant factors, including the principle of totality, are taken into account. If the approach of identifying notional sentences for each offence or group of offences and arriving at an overall head sentence is adopted, then the sentencing judge is required to step back and consider the sentence taking into consideration all relevant matters. That consideration may result in the sentence being substantially reduced because the end result of accumulating the individual sentences leads to a sentence which, given the personal circumstances of the offender, is crushing.
The individual notional sentences that were identified by the sentencing judge, although at the high end of the scale, were within the limits that a court might impose for the offending in this case. It was within the discretion of the sentencing judge to accumulate notional sentences in order to arrive at a total sentence for the offending: R v Place. The judge was then required to determine the final sentence having regard to the principle of totality. At this stage the judge is required to exercise an intuitive judgment, calling on his or her experience: R v Cameron. There is no formula which will assist a sentencing judge in arriving at the final sentence.
[19] R v Elliot [2001] SASC 101
[20] R v Power [2003] SASC 288 at [18]-[19]
In the present case the sentencing judge erred in grouping the offences in the manner he did. There was no apparent reason for the grouping. The judge simply adopted the grouping in accordance with the joinder of charges on the informations. For example the first and third groups of offending involved offending of the same type and on the same day. Yet, on the other hand, within the first group, the offending ranged over some months.
The sentencing judge erred in his application of section 18A of the Sentencing Act. The division of the offences into four categories did not reflect the process intended by the enactment of section 18A. The principle of totality required the judge to take into account all of the offences charged, including the suspended sentence, and then impose a sentence that was appropriate in all of the circumstances.
Section 10(1)(c) of the Sentencing Act provides for sentencing authorities to treat as a relevant consideration that separate offences may form part of a course of conduct.
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court;
… if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;
It was complained that the separation of the offences into four groups by the judge resulted in a failure to attend to the requirements of section 10(1)(c).
The one course of conduct approach to sentencing has been discussed earlier in these reasons. As was observed in Elliot:[21]
There is a degree of artificiality in any attempt to dissect the one course of conduct into a number of separate offences. Each offence necessarily aggravated the other offences as they were part of the one course of conduct. There was no part of that one course of conduct that could be fairly isolated from any other.
[21] [2001] SASC 101 at [75]
In the present case, it was necessary for the sentencing judge to address section 10(1)(c) and consider the appellant’s offending as involving a course of conduct when determining the appropriate sentence. Such an approach is preferable to the judge’s method of categorisation of the offences. It assists in the consideration of the principle of totality and enables one sentence to be imposed for all of the offending pursuant to section 18A. As observed in Elliot:[22]
In considering the respondent’s offences as one course of conduct the court can give effect to the totality principle. The totality of the criminality and culpability of the respondent can be assessed, addressed, and made the subject of the one sentence.
[22] [2001] SASC 101 at [87]
It is to be noted that the fact that offences form part of a course of conduct consisting of a series of criminal acts of the same or similar character, is a matter which may be a circumstance of aggravation or a circumstance of mitigation depending upon the circumstances of the particular case.
Rehabilitation
The role of rehabilitation as a consideration in sentencing is reflected in section 10(1)(m) of the Sentencing Act:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
… the rehabilitation of the defendant;
Rehabilitation as an object of sentencing is well recognised, as noted in Vartzokas v Zanker by King CJ:[23]
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrong-doing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrong-doing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrong doing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community.
[23] (1989) 51 SASR 277 at 279
The sentencing judge failed to have sufficient regard to the appellant’s prospects of rehabilitation. The evidence before the court suggested that the appellant would benefit from a lengthy parole period where assistance could be provided to address his rehabilitation and drug related problems. The following observations were made by Dr Balfour in a psychological report tendered to the court:
I am concerned that further periods of lengthy incarceration will institutionalise Mr Simpson into the criminal justice system thus making it increasingly difficult for him to integrate into society. He has spent 12 years of his adult life in jail and four years as a juvenile in detention. I believe that his lengthy incarceration is having an accumulative punitive effect upon him. He is finding each successive period of incarceration increasingly aversive and punitive.
…
Without the assistance of a supervised, structured rehabilitation programme, I believe that Mr Simpson’s prognosis to cease offending is poor. He has a severe drug problem. He will be prone to relapses of his drug addition that will place him at risk of further offending. His rehabilitation will be lengthy (i.e., two to three years).

Although a history of previous offending may suggest a defendant’s prospects for rehabilitation to be poor, past criminal antecedents do not necessarily preclude any basis or hope for rehabilitation.[24]
[24] Power v French (1973) 6 SASR 100
Despite a poor criminal record, the appellant presents with prospects for rehabilitation. A number of Dr Balfour’s recommendations can be undertaken whilst the appellant is in custody. Other recommendations will have to be deferred until the appellant is released on parole.
Pleas of Guilty, Contrition, Remorse and Co-operation with the Authorities
While the amount of any reduction made for a plea of guilty or cooperation with authorities is wholly discretionary, it is important that sentencing judges articulate whether a discount has been made and the value of that discount. In R v Place[25] the Court referred to the comments of King CJ in Harris & Simmonds:[26]
If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plead guilty, it is necessary that they, and their advisors, have a clear idea of the sort of discount which will be made on that account.
[25] (2002) 81 SASR 395
[26] (1992) 59 SASR 300 at 302
It was contended by counsel for the appellant that the sentencing judge had erred in failing to make an appropriate reduction for the significant level of co-operation offered by the appellant to the police. It was said that it was in the community’s best interest if persons are encouraged to notify the authorities of offending behaviour and confess to criminal conduct that would have otherwise been undetected. It was said that such cooperation with the police should be reflected in the sentencing process as it displays a degree of contrition and remorse beyond a plea of guilty. It encourages other offenders to cooperate with police enquiries, leaves the community with a greater sense of safety, and saves important police resources that would have otherwise been spent on investigating a crime.
Volunteered confessions of offences of which the police would not otherwise have been aware may be a mitigatory factor to be taken into account when sentencing. Section 10(h) of the Sentencing Act provides:[27]
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(h) the degree to which the defendant has co-operated in the investigation of the offence;
[27] R v Ryan (2001) ALR 193
This section enables the court to consider the degree to which a defendant cooperated with police when sentencing, however the sentence to be imposed remains in the discretion of the court. In particular, any discount made in accordance with the provision is discretionary and the court is not bound to give effect to any agreement between the Crown and the defendant about any benefit to the defendant arising from the cooperation. The value of the information and whether the investigators would have been able to attain such information from other sources are relevant in assessing the amount of discount.[28]
[28] R v Malvaso (1989) 168 CLR 227, R v Golding (1980) 24 SASR 161 at 172
Counsel for the appellant referred to Proom[29] where the court considered the discount to be given to a defendant who had pleaded guilty, expressed remorse and contrition and assisted investigating authorities. It was observed:
Ms Proom was entitled to a substantial reduction on account of her pleas of guilty, contrition, remorse and cooperation with the authorities. Her pleas of guilty avoided numerous trials. But for assistance, cooperation and disclosures much of her offending would not have been discovered. Her cooperation and assistance, including the matters earlier identified, called for a special allowance. A reduction of one-third was appropriate on account of these matters.
[29] (2003) 85 SASR 120 at 137
Although the amount of the reduction, if any, remains at the discretion of the sentencing authority, it has been observed that where the offender would not have been prosecuted but for having voluntarily approached the police and confessed to a crime, a reduction of the penalty by about one third may be appropriate.[30] A similar discount has been described as appropriate where the information was of value to the police.[31]
[30] Walker v R (1994) 178 LSJS 271
[31] R v Cox (1996) 66 SASR 152
The discounts of 25 per cent, 25 per cent, 30 per cent and 29 per cent allowed by the sentencing judge in respect of each group of offending were illogical and inadequate. There was no reason to differentiate between the groups of offences. To the contrary, the same reduction should have been made for each as the relevant considerations were substantially the same. The reductions made by the sentencing judge were inadequate in the circumstances.
The appellant’s co-operation, contrition and early guilty pleas called for a total reduction of the order of one third when fixing both the head sentence and the non parole period.
The Totality Principle
In Rossi[32] King CJ made the following observations regarding the totality principle:
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 …
[32] (1988) 142 LSJS 451 at 453
The application of the totality principle should occur as the final step in the sentencing process and be applied only after any reduction for mitigating circumstances has been made, including any discount for a plea of guilty.
In Place the Court found that the sentencing judge erred in applying the principle of totality to the provisional sentence before taking into account circumstances of mitigation, including the defendant’s plea of guilty. Doyle CJ, Prior, Lander and Martin JJ observed:[33]
“In an earlier judgment, King CJ spoke of the requirement that at the end of the day a sentencing judge [should] 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” … .
…
In our opinion this Court should exercise the power contained in s 18A of the Sentencing Act to fix a single penalty in respect of all offending. However, in order to arrive at that single penalty, it is appropriate to have regard to the individual sentences that would have been fixed if the power in s 18A did not exist. Ultimately, the question of totality must be addressed. In order to reach the point of considering totality, the preferred approach is to determine the appropriate sentences for the individual offences and to decide whether, totality aside, the circumstances would ordinarily require those sentences to be concurrent or cumulative. In the absence of s 18A, after taking into account totality and determining the appropriate total period to be served, that period could be achieved by making the sentences wholly or partially concurrent … .
[33] (2000) 81 SASR 395 at 426, 432
It was submitted by counsel for the appellant that the sentencing judge failed to reduce the sentence sufficiently to reflect the principle of totality. It was contended that although an unexpired portion of a previous sentence cannot be taken into account when applying the principle of totality, it forms part of the personal circumstances of the defendant which the court should take into account when sentencing.
Counsel for the appellant also submitted that the sentence imposed was manifestly excessive having regard to the circumstances of the offending and the appellant’s personal background.
The majority of the offending for which the appellant was being sentenced were non aggravated dishonesty offences that lacked the aggravating features of violence or intimidation likely to attract such a high sentence as was imposed. Having regard to the personal background of the appellant, the history of his offending, the psychological evidence, the lack of violence in the offending, the degree of co-operation with the police and the need for rehabilitation the sentence imposed was manifestly excessive. A number of factors led to this result. It would appear that amongst other matters the sentencing judge failed to have sufficient regard to the psychological evidence concerning rehabilitation and failed to make an adequate reduction on account of the pleas, contrition, remorse and co-operation with the authorities.
Conclusion
The appellant’s offending in the present case was very serious. It involved a course of dishonest conduct over several years. The conduct involved multiple offending. A lengthy term of imprisonment was inevitable.
The appellant’s poor criminal record for dishonesty has led to him being imprisoned for much of his life. His initial offending arose as a result of lack of parental support and guidance. He then became associated with drug abuse. The appellant is now in his early forties. He claims to have come to the realisation that he must change his ways if he is to have any hope of returning to a normal life.
The appellant is at a ‘cross roads’ in his life. The evidence before the court indicates that the appellant has recognised the need to address his drug and behavioural problems and is committed to doing so.
Dr Balfour has confirmed that while the appellant does have prospects for rehabilitation, ongoing professional support will be necessary. It is in the interests of the community that this occur. This factor, despite the appellant’s poor record, allows a merciful approach to be taken.
An appropriate starting point is the one head sentence of 18 years imprisonment. This acknowledges the seriousness of the appellanht’s multiple offending, the need for personal and general deterrence and the need to protect the community. The sentence takes account of the entire course of the criminal conduct and the appellant’s criminal culpability. A reduction of one third should be made having regard to the appellant’s early pleas of guilty, contrition, remorse and co-operation with the authorities. A further reduction of four years should be made having regard to the principle of totality. An additional 18 months must be added to this reduced sentence with respect to the breach of the suspended sentence bond and the activated term of imprisonment. This results in a head sentence of nine years and six months imprisonment. Having regard to the evidence relating to the appellant’s prospects of rehabilitation, a non parole period of five years should be fixed.
This appeal should be allowed. The sentence imposed by the sentencing judge should be set aside. A sentence of nine years and six months should be imposed. A non parole period of five years should be fixed. Both the head sentence and the non parole period should be backdated to commence on 8 April 2003.