R v STRETTON - [2009] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STRETTON
[2009] SASC 58
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice David and The Honourable Justice Kourakis)
4 March 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Prosecution application for permission to appeal against sentence – respondent pleaded guilty to offences of aggravated robbery and using motor vehicle without consent – respondent also pleaded guilty to several other less serious offences – sentencing judge imposed sentence of imprisonment for two years and six months for offences of aggravated robbery and using motor vehicle without consent, to be served cumulatively on sentence of imprisonment for six months for other less serious offences, with non-parole period of 12 months – sentencing judge reduced head sentence for aggravated robbery and using motor vehicle without consent from imprisonment for three years and nine months for respondent’s cooperation and by eight days for time spent in custody – whether sentence of imprisonment for three years and nine months, reduced to sentence of imprisonment for two years and six months to be served cumulatively on sentence of imprisonment for six months, with non-parole period of 12 months was manifestly inadequate – whether sentencing judge placed too much weight on respondent’s borderline intelligence and other cognitive and psychological difficulties in setting head sentence and non-parole period.
Held: Application for permission to appeal against sentence granted – appeal allowed – sentencing judge placed too much weight on respondent's borderline intelligence and other cognitive and psychological difficulties - head sentence and non-parole period imposed was manifestly inadequate.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PARITY - CO-OFFENDERS - GENERAL PRINCIPLES
Respondent’s co-accused pleaded guilty to offences of aggravated robbery and using motor vehicle without consent – co-accused already serving sentence of imprisonment for eight years one month and 25 days with non-parole period of four years and six months for earlier offence of aggravated robbery – sentencing judge imposed cumulative sentence of imprisonment for five years on co-accused and extended his non-parole period by two years and six months, having reduced his head sentence from imprisonment for eight years for his guilty plea and totality – whether principle of totality relevant to principle of parity – whether increased sentence would lead to justifiable sense of grievance on part of respondent and offend principle of parity.
Held: Principle of totality relevant to principle of parity - increased sentence to imprisonment for three years and six months for offences of aggravated robbery and using motor vehicle without consent, to be served cumulatively on sentence of imprisonment for six months with non-parole period of two years and six months, does not offend principle of parity.
Criminal Law Consolidation Act 1935 (SA) s 137(2), s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
R v Nemer (2003) 87 SASR 168; R v Place (2002) 81 SASR 395; R v Wiskich (2000) 207 LSJS 431, applied.
Lovelock v R (1978) 19 ALR 327; Lowe v The Queen (1985) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295, discussed.
Mill v The Queen (1988) 166 CLR 59; R v MacGowan (1986) 42 SASR 580, considered.

R v STRETTON
[2009] SASC 58
Court of Criminal Appeal: Duggan, David and Kourakis JJ
THE COURT
Introduction

The Director of Public Prosecutions (“the Director”) applies for permission to appeal against a sentence imposed on the respondent by a District Court judge. The respondent pleaded guilty to the offences of aggravated robbery, contrary to s 137(2) of the Criminal Law Consolidation Act 1935 (SA), and using a motor vehicle without consent, contrary to s 86A of the Criminal Law Consolidation Act, both offences having been committed in July 2006. The respondent also pleaded guilty to a number of less serious offences, namely one count of property damage, three counts of breach of bail, one count of theft, one count of supplying a false name and address and one count of assault. All of these offences were committed subsequent to the principal offences. He also admitted breaching a suspended sentence bond and a good behaviour bond.
On 31 October 2008, the sentencing judge imposed a total head sentence of three years, with a non‑parole period of 12 months and reduced that by eight days for time spent in custody. The final sentence was a period of imprisonment for two years 50 weeks and six days, with a non-parole period of 11 months two weeks and six days, such sentence being backdated to 16 August 2008.
In setting a term of imprisonment for the offences of aggravated robbery and using a motor vehicle without consent, the sentencing judge said in his remarks that the appropriate starting point for a head sentence was a term of imprisonment of three years and nine months. Because of the respondent’s cooperation with the authorities, which we will detail later in these reasons, the sentencing judge reduced that sentence by one third and set a period of two years and six months as a head sentence. For the series of offences which were committed after the two principal offences, the sentencing judge imposed one term of imprisonment of two months, giving the respondent one third discount for his pleas. For the breaches of the two bonds the sentencing judge imposed a further term of imprisonment of two months for each. That total period of six months was added to the head sentence for the principal offences, thus making a total head sentence of three years, which was then reduced by eight days. It is to be noted that it is not part of the Director’s argument on appeal that the sentences for the matters other than the aggravated robbery and using a motor vehicle without consent were manifestly inadequate. It is also no part of the Director’s argument on appeal that the period of time by which the head sentence was reduced was too much in relation to the respondent’s cooperation.
The Director now appeals on the ground that the starting point of three years and nine months, reduced to two years and six months, was manifestly inadequate, as was the non-parole period of 12 months. The Director argues that such a sentence for aggravated robbery, in the circumstances of this case, does not reflect sentencing standards and does not cater for both general and personal deterrence.
Background
On 17 July 2006 at about 9.30 am, the respondent and his co-accused, Christopher Lee Ikin, holding screwdrivers and with their faces covered by their jackets, entered the Cellarbrations Liquor Store at Glenelg North. Mr Ikin went around the counter and confronted the victim, who was the joint proprietor of the store, and was there alone on that morning. Mr Ikin pointed the screwdriver and a pair of scissors at the victim’s chest and told him to open the till and the safe. The victim took Mr Ikin into an office where the safe was located, opened the safe and handed him about $2,000. Mr Ikin demanded more money, and an amount in the vicinity of about $12,000 to $14,000 was then provided to both offenders. Mr Ikin threatened to stab the victim during the robbery. The victim was then made to sit on the ground and both offenders left, driving away in a car which they had both stolen the previous day, and which is subject of the charge of using a motor vehicle without consent.
Both offenders were arraigned on 2 April 2007 and pleaded not guilty. A trial commenced on 18 February 2008. The trial proceeded for seven days. The respondent gave evidence of an alibi, namely, that he was at the house of a person called Anthony Hossu at the time the robbery occurred. The trial miscarried as a result of an application made by Mr Ikin. On 14 March 2008, Anthony Hossu gave a statement to the prosecuting authorities to the effect that the respondent was not with him at the time of the robbery. A second trial commenced on 18 March 2008, but miscarried due to one of the jurors knowing a witness. The next day a third trial commenced, and as in the first trial, proceeded to the stage that the victim gave evidence. On 20 March 2008, Anthony Hossu provided a statement to the effect that the respondent had asked him to lie in court in relation to his alibi. The trial was then adjourned. On 26 March 2008, the respondent provided a statement to the police admitting his guilt and implicating Mr Ikin. On that same day, both accused pleaded guilty before the jury and a unanimous verdict of guilty was entered by the jury.
As a result of the statement ultimately given by the respondent implicating Mr Ikin, the sentencing judge reduced his nominal head sentence by one third. It is to be noted that the offending breached two bonds. The first was entered into at the Christies Beach Magistrates Court on 29 June 2005. It was a bond to be of good behaviour for a period of two years, but was extended for 12 months to 21 June 2007. That bond was in relation to the suspension of a sentence of two months imprisonment for the offences of damaging property, being unlawfully on premises and theft. As a result of the principal offending breaching that bond, the respondent was required to serve the two month sentence of imprisonment. The breach also amounts to an aggravating factor in relation to the principal offending. The second bond was entered into in the Elizabeth Magistrates Court on 23 February 2006. That bond was in relation to three counts of disorderly behaviour and three counts of assaulting police. It was a condition of that bond that the respondent would be brought back before the court for conviction and sentencing if it was breached. Once again the judge imposed a term of two months imprisonment for that breach. The fact that there was a further bond being served when the principal offences were committed is also an aggravating factor.
Arguments on Appeal
Mr Press, for the Director, argues that a starting point of three years and nine months for aggravated robbery does not maintain adequate standards of punishment for this type of offence. He argues that this Court has recognised that armed robberies on banks, service stations, pharmacies and retail stores, where weapons are used to threaten the victims, fall into the type of offences where general deterrence must play a major part in the sentencing process. Mr Press further argues that the standard penalty for this type of offence is a starting point of six to eight years as a head sentence.[1] Mr Press argues that the present offending was well planned, because a car was stolen the day before, the victim was alone, weapons were used to threaten him and a substantial amount of money was taken. Mr Press emphasised the fact that, as is often the case with offences of this type, the victim was vulnerable. He argues that both the head sentence and the non‑parole period were far too lenient.
[1] R v Place (2002) 81 SASR 395 at 429, 431; [2002] SASC 101 at [100]‑[101], [108].
Mr Press also argues that the sentencing judge placed too much emphasis on the respondent’s borderline intelligence and other cognitive and psychological difficulties.
The nature of the respondent’s borderline intelligence and cognitive and psychological issues were evidenced by two reports prepared by a psychologist, Mr Broomhall, and can be briefly summarised as follows.
The respondent scored in the lowest 14 per cent of the population on a test of general intelligence, placing him in the “low average range”. He also scored in the lowest 3 per cent of the population in a general memory test. The psychologist attributed this poor result in the memory test to a diagnosis of “Amnestic Disorder Due to Organic Impairment”, the organic impairment being a brain tumour that the respondent had removed in 2004. The psychologist reported that this disability “manifested as impairment in the ability to learn new information and difficulty in recalling previously learned information”.
The respondent was also diagnosed as suffering “Alcohol Abuse” and a “Mood Disorder Due to Organic Impairment (brain tumour)” which was demonstrated by the respondent’s “generally depressed mood, feelings of hopelessness, a reported fear of death following his brain tumour and low self‑worth over the past 2-3 years.”
The respondent was further diagnosed as suffering from an Anti-Social Personality Disorder, which according to the psychologist, was:
illustrated by a history of failure to conform to social norms with respect to lawful behaviours, deceitfulness, impulsivity, irritability and aggressiveness, as indicated by repeated physical fights or assaults, reckless disregard for safety of self or others and consistent irresponsibility.
In dealing with the respondent’s borderline intelligence and cognitive and psychological difficulties, the sentencing judge said the following:
Before setting out details of the offences and imposing sentence, I will make some observations about your personal circumstances. You were born on 25 July 1986 and are now 22 years of age. You were raised by both of your parents, without any particular difficulty, until you were 12 years of age. Up until that time, although you had experienced some problems at school with spelling and maths, you showed some ability in other areas.
When you were 12 years of age your parents separated and you became very angry. You have a younger brother with whom you have a positive relationship. However, at the time of the separation your younger brother stayed with your mother and you lived with your father. Your father did not provide appropriate supervision and did not ensure your attendance at school. You were diagnosed with Attention Deficit Disorder and prescribed medication, presumably dexamphetamine.
You commenced using alcohol and marijuana at the age of 13 years. By the age of 14 you were drinking heavily each weekend and using marijuana almost every day. You became involved in fights at school with other students and arguments with teachers. You were expelled from school for fighting at the age of 15 years. You obtained employment for about six months after leaving school, installing roller doors. However, your family situation changed again when your father commenced a relationship with a woman who had two sons. You did not get along well with either her or her sons and, as a result, left home. You stayed with friends in Victoria for a period, where you obtained temporary work on a fishing boat. At one stage you lived on the streets for a period of almost a year and were using ecstasy and methamphetamine, the latter intravenously. You contracted hepatitis C.
When you were 17 years of age you made an attempt at suicide. In August 2004, when you were 18 years of age, you were admitted to Modbury Hospital with pericarditis. During your treatment you suffered a generalised seizure. A CT scan disclosed the presence of a brain tumour. In September 2004 you underwent surgery to remove the tumour. The tumour was not completely removed but has not recurred. In October 2004 you were admitted to the Flinders Medical Centre with a cerebrospinal fluid leak and underwent further surgery. Your treating neurosurgeon noted ongoing evidence of behavioural disturbance. You reported increased memory loss since the surgical procedure. It was his opinion that the tumour was not responsible for your seizures.
You suffered a grand mal seizure in October 2006 resulting in a loss of consciousness. You were by that time again using marijuana and amphetamines and that was thought to be causative of the seizure. In addition, you had ceased taking your anticonvulsant medication.
You were seen by Mr Broomhall, a psychologist, in April this year. He diagnosed you as suffering from an antisocial personality disorder and expressed the view that you were also suffering from mood disorder due to organic impairment, namely the brain tumour to which I have referred. He described you as suffering from alcohol and substance abuse problems and that is apparent.
In early May 2008 you were admitted to hospital after suffering a further seizure, during which you had struck your head violently against a metal bed rail. You discharged yourself against medical advice. It was noted at that time that you had continued to abuse illicit drugs and were noncompliant with your antiseizure medication.
Mr Broomhall assessed you again in July 2008. He noted that you could not recall the previous visit some two months earlier, but remarked on the improvement in your presentation. He described you as presenting in a cooperative and responsive fashion. He noted that you had experienced symptoms descriptive of grand mal seizures occurring in the weeks prior to his second assessment. He conducted neuropsychological testing. He describes your general intelligence as being in the lowest 14% of the population and your general memory as being in the lowest 3% of the population.
He describes the significant impairment in memory function as likely to be related to the seizures. He considered that you met the diagnostic criteria for amnesiac disorder due to organic impairment, manifested as an impairment in the ability to learn new information and difficulty in recalling previously learned information. He also assessed you as having slight difficulties with executive function including verbal disinhibition and lack of cognitive flexibility.
…
I bear in mind the submissions of counsel for the Director of Public Prosecutions that the target of your offending was a vulnerable person and that there is a need to protect members of the community from such offences. In your case the consideration of general deterrence is significantly reduced having regard to your borderline intelligence and other cognitive and psychiatric difficulties. Had it not been for those matters, the starting point in the imposition of sentence would have been higher. However, having regard to your reduced capacity and the role played by you in the offending, I am of the view that the appropriate starting point is a sentence of imprisonment of three years and nine months.
Mr Press argues that too great a reduction was given by the sentencing judge in relation to the borderline intelligence, and other cognitive and psychological difficulties which he set out. In so arguing, Mr Press points out that the respondent’s intellectual functioning did not impact on his knowledge of the nature and gravity of his criminal conduct. The material before the sentencing judge from the psychologist, Mr Broomhall, indicated that the respondent was aware of what he was doing, agreed to the plan to hold up a store for money and participated knowing the potential consequences of such action. Mr Press relies upon the authority of R v Wiskich[2] where the Court said:
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced. (Citation omitted.)
[2] (2000) 207 LSJS 431 at 457; [2000] SASC 64 at [62].

Finally, Mr Press argues that in addition to giving too much weight to the respondent’s level of intelligence, the sentencing judge also failed to give any or sufficient weight to the fact that the offences were aggravated by the respondent having committed them while he was on a suspended sentence bond and a simple bond, the fact that the robbery was well planned and motivated by greed and the fact that it was very much a joint enterprise. Mr Press argues that in remarking that the respondent took “no active part in the robbery other than to attend at the bottle shop”, the sentencing judge failed to recognise the nature of the joint enterprise, namely that even though one played a more active role, the victim was nevertheless faced with two armed offenders.
Mr Muscat, for the respondent, argues that although the sentence was lenient, the sentencing judge was nevertheless justified in the reduction that he made to the sentence when allowing for the respondent’s cognitive and psychological difficulties. In argument, Mr Muscat emphasises that the medical history set out by the sentencing judge was aided by a wealth of material presented at the sentencing submissions. Mr Muscat argues that the nature of the respondent’s mental condition is such that he is very much prone to being influenced by others, and emphasises the fact that the respondent’s role was minor in comparison to that of Mr Ikin. Mr Muscat points out that the material indicates that the respondent was very much influenced by Mr Ikin, who has a significantly worse criminal record, especially for offending of this type.
Mr Muscat also argues that it would offend the principle of parity if this Court was to increase the respondent’s sentence. To understand that argument it is important to deal with Mr Ikin’s sentence. Mr Ikin has a significant history of offending in comparison to the history of offending of the respondent. Mr Ikin has prior convictions for armed robbery, robbery, robbery in company, robbery with violence and assault with intent to rob whilst armed, as well as multiple other offences, including driving offences. The respondent has no such convictions, although he has been in trouble with the law in relation to assaulting police, disorderly behaviour, damaging property, dishonestly taking property, breaches of bond and failing to comply with bail agreements. Mr Ikin was already serving a sentence of imprisonment for an aggravated robbery, which was committed on 3 October 2005, and which offence activated an unexpired balance of parole to an effective head sentence of eight years, one month and 25 days, with a non‑parole period of four years and six months, commencing from 27 March 2007. The principal offences were committed whilst Mr Ikin was on home detention bail in relation to the offence which was committed on 3 October 2005. In sentencing Mr Ikin for the principal offences, the sentencing judge started at a head sentence of eight years but, giving a discount for his albeit late guilty plea, reduced that to seven years and two months. The sentencing judge then took into account the question of totality, as the sentence was cumulative upon the sentence Mr Ikin was already serving, and imposed one sentence of imprisonment for five years. The total head sentence, together with the term of imprisonment that Mr Ikin was already serving, was one of 13 years one month and 25 days. Pursuant to s 32 of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing judge then extended the non-parole period by two years and six months, making a total non‑parole period of seven years.
Mr Muscat argues that if the respondent’s sentence is increased, it would come close to the five years for which Mr Ikin has been sentenced. He argues that bearing in mind the respective criminal histories of both men, such a sentence would lead to a justifiable sense of grievance on the part of the respondent and offend the principle of parity.
Discussion
In our view, the sentence is erroneously lenient, even bearing in mind those matters personal to the respondent. The respondent’s mental disorders did not significantly compromise his capacity to appreciate the nature of his conduct. Therefore they could not detract much from the importance that the elements of general and specific deterrence have in sentencing for the offence of armed robbery. A starting point of three years and nine months is far too low for an offence of aggravated robbery and does not give enough weight to general deterrence. The offending was serious. There was an amount of planning; there was a threat with weapons to a person alone at his place of business; and the amount of money taken was substantial. The nature of the respondent’s psychological and cognitive disposition is not such as to allow such a lenient head sentence and non‑parole period.
Although there is no appeal against the reduction in sentence for the pleas of guilty and cooperation with police, the sentencing judge was nevertheless generous in that aspect. The pleas came after two trials had been commenced, and only after the respondent’s alibi witness had decided to give a statement to the police telling the truth. The aspect of contrition, therefore, was slight. The Director accepts that the statement implicating Mr Ikin, which the respondent had given to the authorities, may have been a factor in bringing about Mr Ikin’s pleas of guilty and, therefore, must be recognised to some degree in the sentence.
Mr Muscat’s argument as to parity of sentences raises for consideration the interaction between that principle and the principle of totality which was the central issue in Postiglione v The Queen.[3]
[3] (1997) 189 CLR 295.
In Lowe v The Queen[4] it was held that an appellate court should intervene where discrepancy between the sentences imposed on co-offenders “is such as to give rise to a justifiable sense of grievance or in other words to give the appearance that justice has not been done”.[5]
[4] (1985) 154 CLR 606.
[5] Postiglione v The Queen (1997) 189 CLR 295 at 309.
In the same case Brennan J repeated his comments on the principle which he made in Lovelock v R:[6]
Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because “a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance” (per Walters J in O'Malley v French [1971] 2 SASR 110 at 114; and see R v Steinberg [1947] QWN 27). But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind. According to the circumstances of the case, it may be inferred that insufficient weight has been given to the differentiating circumstances, and in such a case, the appellate court determines for itself the appropriate sentence which ought to be imposed upon the appellant, and intervenes by imposing that sentence (cf R v Beaumont [1955] SASR 110 at 117; R v Coyle [1969] 2 NSWR 83; R v Irwin [1966] Crim LR 514).
[6] (1978) 19 ALR 327 at 331; (1978) 33 FLR 132 at 136‑137.
The majority in Postiglione held that the application of the principle of totality recognised by the Court in Mill v The Queen[7] had, in the particular circumstances of Postiglione, resulted in a justifiable sense of grievance on the part of the appellant when his sentence was compared with the sentence imposed on a co‑offender. As Mr Muscat placed considerable reliance on Postiglione it is appropriate to examine the decision in more detail.
[7] (1988) 166 CLR 59.
Postiglione and a co‑accused, Savvas, conspired together to import cocaine into Australia. They were charged with two offences of conspiracy (“the subsequent offences”). The conspiracies took place while they were in gaol where they were serving sentences for other offences (“the previous offences”). Postiglione was serving a sentence of imprisonment for 12 years with a non‑parole period of nine years. He would have been eligible for parole on 8 March 1996. Savvas was serving a sentence of imprisonment for 25 years with a non‑parole period of 18 years. He would have been eligible for parole on 23 August 2006.
It was accepted that Savvas was the principal conspirator in the subsequent offences. After being charged with the offences Postiglione cooperated with the police, pleaded guilty and gave evidence against Savvas and other conspirators at their trial.
Before he gave evidence against Savvas and the others, Postiglione was sentenced on the subsequent offences to imprisonment for 18 years with a non‑parole period of 13 years and 10 months to commence on 7 May 1993, the date of sentencing. The effect of this was to make this sentence concurrent with the remainder of his sentence for the previous offences. The practical effect of the sentence for the subsequent offences was to increase his non‑parole period by 11 years.
Savvas was found guilty of the subsequent offences and sentenced by a different judge. He was sentenced to imprisonment for 25 years with a non‑parole period of 18 years to commence on 17 June 1994, the date upon which he was sentenced. He had 12 years and two months of his original non‑parole period to serve. This meant that he had a much greater period of his sentence absorbed into the later sentence when compared with Postiglione’s situation. As stated, Postiglione’s non‑parole period was extended by 11 years. Savvas’ non‑parole period was extended by five years and four months.
It appears that, particularly in the case of Savvas, the totality principle was applied so as to avoid the crushing sentence which would have resulted if the sentence for the subsequent offences was to be served cumulatively on the sentence for the previous offences.
Dawson and Gaudron JJ pointed out in their joint judgment that “the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison”.[8]
[8] Supra at 303.
Kirby J commented on the end result in the following passage:[9]
The parity principle could hardly have a better illustration than the present case. Mr Savvas, who had been at the “head of the pyramid” in the prison conspiracies, had pleaded not guilty, had given no co‑operation and was not in protective custody, suffered an increase of his non‑parole custodial sentence by five years four months. The appellant, who had co-operated fully, discharged his promise of giving evidence at the trial of the co‑conspirators and is to be held for the rest of his sentence under the strictures of protective custody, had his non‑parole custodial sentence extended by twice that length. And it would have been even three years longer had the appellant not co-operated with the authorities.
[9] Ibid at 343.
However, in reaching the conclusion that there was relevant disparity in relation to Postiglione, the majority did not hold that the application of the principle of totality was irrelevant to a claim of disparity. It could still be taken into account in considering whether a co‑offender’s particular custodial situation could explain what might otherwise appear to be disparity. Dawson and Gaudron JJ said:[10]
Before turning to consider what ought to have been taken into account in this case, it is convenient to observe, once again, that, as between co‑offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody. (Footnote omitted.)
[10] Ibid at 303.
In the present case it was appropriate for the sentencing judge to take into account the principle of totality in fixing the sentence for Mr Ikin. He was sentenced to imprisonment for five years on the charges of aggravated robbery and using a motor vehicle without consent. The starting point chosen by the sentencing judge for his sentence was imprisonment for eight years which was reduced to seven years and two months because of the plea of guilty. The further reduction to imprisonment for five years was made in the application of the principle of totality by having regard to the sentence he was serving for previous offences. The increase in his non‑parole period was fixed at two years and six months. We will return to the issue of parity after referring to the orders which we would make on the application by the Director of Public Prosecutions.
Conclusion
In our view the sentence of imprisonment for two years and six months, which was imposed upon the respondent for the offences of aggravated robbery and using a motor vehicle without consent, coupled with the non‑parole period of approximately 12 months in relation to his combined sentence, was “so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice”.[11]
[11] R v Nemer (2003) 87 SASR 168; (2003) 231 LSJS 76; (2003) 143 A Crim R 50; [2003] SASC 375 at [24].
These circumstances justify the granting of permission to appeal against the inadequacy of the sentence.
We therefore grant permission to appeal against sentence, allow the appeal and set aside the sentence imposed by the sentencing judge. We do not propose to interfere with the sentence of imprisonment for six months for the extraneous matters. For the offences of aggravated robbery and using a motor vehicle without consent, the respondent should be sentenced to imprisonment for three years and six months, reduced from a starting point of six years after allowing for the co‑operation with the authorities, including giving evidence for the prosecution. This should be served cumulatively on the sentence of imprisonment for six months for the extraneous offences, resulting in a total head sentence of imprisonment for four years. We impose a non‑parole period of two years and six months. To allow for the time spent in custody, we will order that the sentence and non‑parole period commence on 8 August 2008.
We return to Mr Muscat’s argument on parity. The sentence which we have proposed would provide for a head sentence of three years and six months for the offences of aggravated robbery and using a motor vehicle without consent.
In comparing the two sentences in the light of the argument on parity, it is relevant to take into account the roles played by the two men in the joint offending, their criminal antecedents and the custodial status of each offender at the time of sentencing. After taking into account these considerations, we are satisfied that the proposed increase in the sentence of the respondent would not give rise to a justifiable sense of grievance by him. It is true that the non‑parole periods are approximately the same, although it must be remembered that the respondent had to be sentenced on the additional offences. It may be said that the difference between the respondent’s sentence and Mr Ikin’s sentence does not fully reflect Mr Ikin’s greater culpability; however any shortfall is more than accounted for by the operation of the totality principle on Mr Ikin’s sentence. There can therefore be no legitimate grievance on the respondent’s part. The lower than usual sentence imposed on Mr Ikin because of the application of the totality principle cannot result in the imposition on the respondent of anything less than a sentence of three years and six months for the offences of aggravated robbery and using a motor vehicle without consent. Anything less would be so inadequate that it could not be supported, even having regard to the parity principle.[12]
[12] R v MacGowan (1986) 42 SASR 580 at 583.
Orders
In the circumstances, the orders of the Court are:
1.The Director of Public Prosecutions is granted permission to appeal against sentence.
2.The appeal is allowed.
3.The sentence imposed by the sentencing judge for the offences of aggravated robbery and using a motor vehicle without consent is set aside and, in lieu thereof, the respondent is sentenced to imprisonment for three years and six months, to be served cumulatively on the sentence of imprisonment for six months imposed by the sentencing judge for the other offences.
4.A non‑parole period of two years and six months is fixed with respect to the total head sentence of four years.
5.The head sentence and the non‑parole period will commence on 8 August 2008.