R v St Clair No. Sccrm-00-38

R v St CLAIR
[2000] SASC 179

Court of Criminal Appeal: Duggan, Mullighan and Gray JJ

DUGGAN J In my view the appeal should be allowed but only for the limited purpose indicated by Mullighan J. I agree with his reasons.
MULLIGHAN J This is an appeal against sentence.
The appellant pleaded guilty to two counts of burglary and one count of larceny. He was sentenced to imprisonment for a total period of 11 years and 6 months which had to be served at the end of an unexpired sentence of 1 year 10 months and 2 days making a total head sentence of 13 years, 4 months and 2 days. Allowance was made for the period the appellant had been in custody of 1 year and 2 days in fixing a non-parole period of 7 seven years and 6 months.
The sole ground of appeal is that the total head sentence and the non-parole period are manifestly excessive.
The offences of burglary are undoubtedly serious breaches of the law. The first offence was committed at about 2.00 am on 23rd January 1999. The appellant broke into the residence of a Mrs Gillard by smashing the glass panel of the front door. She was woken having heard the door being broken. She confronted the appellant in the passage and attempted to get him out of the house. Her three young children saw this incident and were greatly distressed. They were aged 8, 6 and 2 years. The appellant asked Mrs Gillard for her purse. She gave him $80 from her purse and he then left. The second offence of burglary was committed at about 3.45 am on 25th January 1999. The appellant gained entry into the house of a Mrs Richards through the back door. She opened the door thinking her son was trying to enter. The appellant forced his way in. He put his hand over her mouth to stop her from screaming. She asked him to leave her alone and not to harm her. He forced her to the ground. She sustained a cut to the back of her head as a result of the fall. Her 11 year old son and 14 year old daughter came out of their respective bedrooms and saw this part of the incident. The appellant left without obtaining any money or property.
He was arrested and charged on 9th February 1999. He refused to answer questions or to participate in an identification parade. He has been in custody since the arrest. He first appeared in the District Court on 5th July 1999 and entered pleas of not guilty. The matter came to trial on 1st November 1999. There was a voir dire hearing in relation to the cross admissibility of evidence with respect to the two charges and, it appears, the charge of larceny which is mentioned shortly [P132]. Following adverse rulings, the appellant pleaded guilty to the two charges of burglary.
Outstanding charges of larceny and failure to comply with a condition of bail were brought before the learned sentencing Judge from the Magistrates Court. The appellant pleaded guilty to both charges. The appellant committed the larceny on 27th January 1999 when he stole a woman’s handbag from her car parked in her driveway at Elizabeth Vale. She chased him and he came under the notice of police who arrested and charged him. All of the woman’s property was recovered. The appellant failed to comply with a condition of bail in that he was not living at a particular address as required by a condition of bail. He told the police that he had changed back to a former address on the advice of a police officer because of some incident which had occurred at the other address.
The learned sentencing Judge had the benefit of victim impact statements, some of which were made orally before him in Court. Both Mrs Gillard and Mrs Richards told him of the devastating effects of the crime committed in relation to each of them. Both women and their children have been rendered afraid and nervous. The children have suffered considerably with adverse changes to personality and attitudes. Some of them have required counselling. Mrs Gillard told the Court that during the incident her greatest concern was the safety of her children. She said that although no-one was physically injured, the emotional impact has been devastating for her and distressing for her children. She receives counselling and will continue to do so. She has difficulty in coping with the problems which the children are experiencing. Mrs Richards told the Court that she has moved house because she felt unsafe. Her move has caused a financial burden. She suffers lack of sleep due to fear. She does not feel safe in her own home and is wary when she goes out. She spoke of a personality change and her continuing fear of the appellant.
The appellant is aged 49 years. He has a long record of prior offending commencing as a young child in 1964. He has many convictions for breaking and entering offences and other offences involving dishonesty as well as for aggravated assault and incident assault. He has been sentenced to imprisonment on many occasions and has re-offended on many occasions whilst at liberty on parole with the consequence of his parole being cancelled. The learned sentencing Judge correctly observed that he had spent most of his recent years in prison and that the appellant regards himself as institutionalised. Indeed he has spent most of his adult life in prison. Of particular significance are the sentences imposed in 1988 upon his convictions for two counts of indecent assault, two counts of assault occasioning actual bodily harm and three counts of causing grievous bodily harm with intent to cause such harm. He received a total head sentence of imprisonment for 15 years with a non-parole period of 12 years. The learned sentencing Judge was informed that these offences were committed when the appellant broke into private homes of elderly women [P104] during the period between June 1987 and October 1987. They were, in effect, cases of aggravated burglaries. The sentences imposed for each of the more serious offences was imprisonment for seven years. The total head sentence is the consequence of some sentences having to be served concurrently and others cumulatively. The appellant committed these offences whilst on parole. His last appearance in Court before his appearance on the present matters was in December 1997 when he was convicted of two counts of larceny and one count of common assault and sentenced to imprisonment for a total period of nine months which had to be served at the end of an unexpired sentence.
As is regrettably not uncommon, the appellant experienced difficulties in his upbringing. He was subjected to physical abuse by his father who later committed suicide. After attaining the age of 12 years the appellant was the subject of Care and Control Orders and spent his teenage years in various institutions. He ceased formal education at year 11 level at technical school and has had spasmodic employment. In his earlier years he abused alcohol but overcame that problem and when at liberty has only been a minimal drinker in the last 20 years. He has not abused drugs. He is within the borderline range of intelligence and has adequate literacy skills. He does not suffer any psychiatric or medical illness but has an antisocial personality disorder with significant psychopathic personality traits. He has poor skills in dealing with life stresses and tends to be emotionally unstable but is generally able to control his emotions and anxieties. He was married for a few years nearly 20 years ago and had another relationship with a woman in recent years. Because of his long time in prison, he lacks many social skills.
It is against this background that the appellant had to be sentenced. The learned sentencing Judge correctly took a very serious view of the offences which he said outraged the community because they undermine the essential security which any person is entitled to feel in his or her own home. He stressed the severe impact of the burglaries upon the victims and the need for general deterrence. He rejected the submission that there was real hope for rehabilitation because of the past record of the appellant, his intellectual and social deficits and that he seemed to have learned nothing from many years in gaol. He declined to fix one sentence for the two burglaries as he did not think that they could be appropriately dealt with by a single sentence. He noted that they were separate offences committed on separate days upon different victims. He took the view that cumulative sentences were necessary.
It was a matter of aggravation that these offences involved the burglary of homes of women living with children but otherwise alone, and that they were committed whilst the appellant was on parole having been released from prison in September 1998 after serving part of the sentences for the earlier crimes committed on women after breaking into their homes.
The learned sentencing Judge began with a starting point of a sentence of 6 years and 6 months for the first offence of burglary and 8 years for the second offence. He reduced both by 20% on account of the pleas of guilty resulting in respective sentence of 5 years and 2 months and 6 years and 4 months to be served cumulatively making a total head sentence of 11 years and 6 months thus far. For the offence of larceny, he imposed a sentence of imprisonment for 1 year to be served concurrently with the sentence imposed for the first offence of burglary. He did not reduce that sentence on account of the plea of guilty but that is not a matter of practical significance. For the offence of breach of a condition of bail, he convicted the appellant without penalty.
As I have mentioned, the unexpired sentence for previous offences to be served was 1 year 10 months and 2 days. The subject sentences had to be served after that sentence had been completed.
The appellant had been in custody on the burglary charges for 1 year and 2 days which was not part of the unexpired sentence. For that reason, the learned sentencing Judge made an allowance in the fixing of the non-parole period and accordingly reduced the period which he would have fixed from 8 years and 6 months to 7 years and 6 months.
The first matter raised in support of the submission that the sentence is manifestly excessive is that in fixing the head sentence the learned sentencing Judge made no allowance for the period the appellant had been in custody. In my view, the failure to do so was an error and Ms Kelly, who appeared for the DPP, did not suggest to the contrary. The head sentence is the extent of the punishment. The non-parole period is no more than the part of the head sentence which must be served in custody. Under the present regime, if the sentence exceeds 5 years, it does not necessarily follow that the offender will be released at the expiration of the non-parole period: see s67 of the Correctional Services Act 1982. Furthermore if he is released on parole after the expiration of the non-parole period and is in breach of a condition of parole, he may well have to serve the unexpired portion of the head sentence. For these reasons it is possible that the appellant may have to serve the total period of the head sentence or close to it. Time spent in custody on remand for an offence, the subject of a sentence of imprisonment, must be brought to account in fixing that sentence.
The next matter raised in support of the appeal is that the learned sentencing Judge failed to have regard to the principle of totality in determining the sentences for the offences of burglary. Also, it is submitted that the individual sentences are each manifestly excessive. I consider the second matter first.
The learned sentencing Judge correctly characterised these offences as serious breaches of the law, involving invasion of these homes at night and the personal security of the occupants. They were committed against the background of a long history of prior offending, including the serious crimes for which the appellant was sentenced in 1988, and with deleterious consequences to the victims which have been mentioned. The learned sentencing Judge was also correct in the need to emphasise deterrence. There is also a need to ensure protection of the public in the future from this sort of conduct by the appellant. The learned sentencing Judge was correct in his conclusions that there was no indication of any real prospects of rehabilitation. All of these matters are important considerations and must be acknowledged.
It was submitted on behalf of the appellant that the sentences imposed were outside the range of sentences for serious offences of this nature. We were referred to cases which suggest a sentencing standard for offences of burglary. In R v Kelly; R v Stewart (unreported, 24th February 1995, Jd No S4983), this Court had occasion to consider the sentencing standard and reviewed some of the decisions of this Court before that time. Matheson J, who gave the decision of the Court, expressed the view that if there was a tariff, it could not be much more than three years where the offender had a bad record and had pleaded guilty which, he acknowledged, seemed somewhat low but he did not regard that case as an occasion to review the tariff. In Wanganeen v R (1995) 182 LSJS 293, this Court also reviewed earlier decisions including Kelly and Stewart and Cox J, with whom the other members of the Court agreed, thought that a sentence of about three years is appropriate for the typical burglary offence where not much is taken, there are no aggravating circumstances and the offender pleads guilty. In R v Turner [2000] SASC 32, Martin J, who gave the decision of this court, expressed the view that a head sentence of three years and six months was very lenient, given the substantial matters of aggravation in that case, including ransacking the house and severely assaulting an occupier. There were four offenders which is also a matter of aggravation.
It may be seen from these cases that the tariff for burglary as discussed in Wanganeen is not appropriate for the offending of the appellant, and a tariff of three years or so in cases where there are aggravating circumstances and the offender has a bad record is too low. I do not think the present case is an appropriate vehicle to fix a tariff for the more serious cases of burglary because of the particularly serious matters of aggravation and features of the past record of the appellant which have been discussed. In any event, as Cox J observed in R v Hooper (1995) 64 SASR 480 at p491:
“It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upward departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range: see R v King (1988) 145 LSJS 278 at 280; R v Prendergast (1988) 147 LSJS 486 at 487-488; R v Nixon (1993) 66 ACrimR 83 at 88-89. The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence - the principle of proportionality, as it has been called.”
Given the matters of aggravation and the features of the past record of the appellant, there was no error in the exercise of the sentencing discretion by the learned sentencing Judge in fixing the head sentences for the two burglaries and the larceny.
These are severe sentences but the need for adequate punishment to protect the public and for general and personal deterrence were all matters of considerable importance, particularly in view of the sentences imposed in 1988. There is no complaint about the extent of the reduction on account of the pleas of guilty.
I now turn to the question of totality. The totality principle is succinctly described in Mill v The Queen (1988) 166 CLR 59 in the joint judgment of the Court at pp62-63:
“The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (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.”’
See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”

Recently this Court in R v Major (1998) 70 SASR 488 when discussing the approach in fixing one sentence pursuant to s18A of the Criminal Law (Sentencing) Act 1988 for multiple offences described the totality principle in this way at pp497-498:

“The final step, when an aggregate, notional head sentence is arrived at by the above process, is to stand back and review the result in light of the totality principle: see R v Knight (1981) 26 SASR 573 at 576. The question to be postulated is whether the total sentence is so disproportionate to the overall offending as to be unduly crushing. As was said in this Court in R v Rossi (1988) 142 LSJS 451 at 453, the totality principle:
‘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.’

(See also R v Smith (1983) 32 SASR 219 at 221.)
. In this process a subjective consideration of the practical impact on the offender becomes important: see Rumble v The Queen (1997) 87 ACrimR 550; Arnold v The Queen.”

It was submitted on behalf of the appellant that as the burglaries were committed within 2 days and the larceny was committed 2 days later, the offences were, in effect, one course of conduct and the sentences should be reduced if to be served cumulatively or there should be one sentence pursuant to s18A of the Criminal Law (Sentencing) Act which should be less than the total head sentence to give effect to the totality principle. The latter approach requires the consideration of appropriate individual sentences and then consideration of the principles of proportionality and totality: R v Major.
Clearly separate sentences to be served cumulatively were justified subject to the application of the totality principle. The learned sentencing Judge correctly observed that they were separate crimes, committed on separate occasions against different women. Each of the burglaries was, in itself, a serious crime requiring substantial punishment. A higher sentence for the second burglary was justified because of the physical attack on Mrs Richards and the injury which she suffered which is an additional feature of aggravation.
It would be an error to order that the sentences be served concurrently because the end result would be a sentence which would be inadequate. The question simply is whether a total sentence of 11 years and 6 months for the two burglaries offends the totality principle. I do not think it does. As has been mentioned, they are serious crimes with features of aggravation and, given the background of the appellant, they are not so disproportionate to his criminal conduct as to be unduly crushing (see Major at p497). The total sentence does not offend the totality principle.

It was within the proper exercise of the sentencing discretion to order that the sentence for the larceny be served concurrently with the sentence for the first burglary and no complaint is made about that order.
The remaining matter raised in support of the appeal is that the learned sentencing Judge erred in rejecting that there was any prospect of rehabilitation. There was nothing in the material before him which suggested that there are any real prospects of rehabilitation, only that the appellant may have motivation for treatment and would have some family support in Victoria. I do not regard either of those matters as suggesting that rehabilitation is, at present, likely. The appellant is no longer a young man and seems settled in his ways of an institutionalised life with serious offending when at liberty. I can see no error in the approach of the learned sentencing Judge to rehabilitation.
As has been mentioned, the learned sentencing Judge erred in not ordering that the head sentence be reduced to give effect to the period the appellant had spent in custody. The effect is that the total head sentence must be reduced by one year and two days. The end result is that the total head sentence should be 12 years and 4 months. There is no need to further reduce the non-parole period. As has been mentioned, the learned sentencing Judge made an appropriate reduction of the non-parole period which is appropriate in all the circumstances.
I would allow the appeal for the limited purpose of reducing the head sentence accordingly.
GRAY J I agree that the appeal should be allowed for the limited purpose indicated by Mullighan J and I also agree with his reasons.

[2000] SASC 179

27 June 2000