R v Van der Horst - [2006] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VAN DER HORST
[2006] SASC 243
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
18 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence – appellant pleaded guilty to six counts aggravated serious criminal trespass, seven counts serious criminal trespass, ten counts theft and two counts attempted serious criminal trespass – sentenced in respect of all offending by Judge of District Court to six years imprisonment with a non-parole period of two years and three months – whether, particularly having regard to the appellant’s youth and prior unblemished record, the sentence imposed was manifestly excessive – discussion of sentencing process when sentencing for multiple offences – whether good reason exists to suspend the sentence – Held: by the Court - appeal allowed– sentence imposed by District Court Judge set aside – by majority - appellant sentenced to imprisonment for four years and six months with a non-parole period of 20 months – sentence not suspended.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
Markarian v R (2005) 215 ALR 213 ; Dinsdale v The Queen (2000) 202 CLR 321; AB v R (1999) 198 CLR 111; Wong v R (2001) 207 CLR 584; R v Symonds [1999] SASC 217; R v Simpson (2004) 89 SASR 515 ; R v Elliot (2001) 121 A Crim R 254 ; R v Jason (2002) 36 MVR 474; R v P (2003) 87 SASR 287; R v LLK (2003) 231 LSJS 458; R v Power [2003] SASC 288 ; R v Nylander (2003) 228 LSJS 24; R v Weaver (1973) 6 SASR 265; Taylor v Barr (1987) 135 LSJS 106; R v Augoustinos (1975) 13 SASR 48; Yengi v Police [2003] SASC 220; Taormina v Cameron (1980) 24 SASR 59; Inge v The Queen (1999) 199 CLR 295; R v Famiglietti [2005] SASC 489; Elliot v Harris (No 2) (1976) 13 SASR 516; R v Harris (2001) 122 A Crim R 241; R v Regan [2003] SASC 287; Vartzokas v Zanker (1989) 51 SASR 277; R v Jarrett (1992) 58 SASR 457; R v Hill [2005] SASC 380; Duncan v R (1983) 47 ALR 746; G v Police (1999) 74 SASR 165 (1999) 74 SASR 165; R v Delphin (2001) 79 SASR 429; R v Halse (1985) 38 SASR 594; R v Major (1998) 70 SASR 488; R v Kelly [2000] SASC 293; R v Bennett [2005] SASC 55; R v Place (2002) 81 SASR 395 at 432; R v Gale (1999) 74 SASR 235; R v Waugh [2005] SASC 470; R v Gibbs [2004] SASC 187; R v D (1997) 69 SASR 413; R v B, RWK [2005] SASC 84; R v Jason [2002] SASC 201; R v Sevo [2006] SASC 124; Attorney-General v Tichy (1982) 30 SASR 84; R v Blain (1984) 115 LSJS 270; Griffiths v The Queen (1989) 167 CLR 372, considered.

R v VAN DER HORST
[2006] SASC 243
Court of Criminal Appeal: Gray, Vanstone and White JJ
GRAY J:
Introduction

This is an application for leave to appeal against sentence. The merits of the appeal were also considered instanter by the Court.
The applicant, Clayton Andrew Van der Horst, pleaded guilty to five counts of aggravated serious criminal trespass (non-residential),[1] four counts of serious criminal trespass (non-residential), ten counts of theft, four counts of aid and abet serious criminal trespass,[2] and two counts of attempted serious criminal trespass (non-residential).[3] The applicant perpetrated all offences in conjunction with a co-accused.
[1] the maximum penalty in respect of which is 20 years imprisonment.
[2] the maximum penalty for each being imprisonment for 10 years.
[3] the maximum penalty for which is imprisonment not exceeding six years and eight months.
The applicant was sentenced by a Judge of the District Court on 30 March 2006. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge imposed the one penalty in respect of all offences. The Judge began with a starting point of eight years imprisonment, which, on account of the applicant’s pleas of guilty, he reduced by 25 per cent to six years imprisonment. The Judge fixed a non-parole period of two years and three months. The Judge declined to suspend the sentence.
The applicant seeks leave to appeal against the sentence on the grounds that both the head sentence and non-parole period are manifestly excessive and that the sentencing Judge should have exercised his discretion to suspend the sentence.
In the recent decision of the High Court in Markarian[4] in the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ, their Honours discussed the general approach to be taken to sentencing:[5]
Following the decision of this court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
[4] Markarian v R (2005) 215 ALR 213 – see also Dinsdale v The Queen (2000) 202 CLR 321.
[5] Markarian v R (2005) 215 ALR 213 at [39].
Their Honours also discussed the approach that an appeal court should adopt in considering an appeal against sentence: [6]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[6] Markarian v R (2005) 215 ALR 213 at [25]. (footnotes omitted)
The court reaffirmed its decisions in AB[7] and Wong[8] in which the High Court stated that the task of a sentencer is to take account of all of the relevant factors and to arrive at a result.
[7] AB v R (1999) 198 CLR 111.
[8] Wong v R (2001) 207 CLR 584.
Nature of the Offending
The Judge described the applicant’s course of offending in the following terms:
[T]he offences involve the entry into commercial premises, or its attempt, and the theft of cash or items therefrom. Overall, the value of what was stolen was not high, but that does not in any real way diminish the effect of each offence upon each victim. Almost invariably each trespass involved damage to property to a lesser or greater extent to facilitate that trespass. Some items were recovered upon the arrest of you and your co-accused.
In all instances, the offending occurred at night. The premises were unoccupied. On no occasion was any person endangered by the applicant’s offending. The total value of the property that the applicant stole was less than $13,500. In some instances, as little as $20-30 cash was taken. It is clear that each of the offences was at the lower end of the scale of seriousness for the relevant category of offence. Two of the offences pertained to attempted trespass. The offending occurred during a week in April 2005 and then over a three-week period in May and June 2005.
During sentencing submissions, counsel for the prosecution informed the court that the applicant’s conduct had caused “an enormous amount of grief” to the Millicent community, and that police had expended a “number of hours of manpower” on this case. It is clear that the sentencing Judge was impressed by the cumulation of the individual instances of offending and their impact on a small community. The Judge observed:
There is no doubt that this episode of offending caused great concern in the Millicent community, which is comparatively small and self-reliant. To attack a sense of community security as you did by repetitive offending over such a short period is very serious indeed. The sentence must reflect the need to deter other persons from so acting not only to protect individual property holdings but to ensure that the fabric of the community is not attacked in this way.
The impact of the applicant’s offending on the community gave rise, in the view of the sentencing Judge, to a need for the sentence to reflect general deterrence. The Judge observed:
There is a clear and obvious requirement that all persons be aware that when a community is assaulted in this way there will be available from the court an appropriate sentence to reflect the seriousness of the offending and the need to protect the community. In the same way, the need for the sentence to reflect adequate punishment in such circumstances as here exist is also important.
The reference to the community being “assaulted” was an emotive description presumably to indicate the Judge’s concern of the impact on the community.
Personal Circumstances of the Applicant
At the time of sentencing, the applicant was 21 years of age. He had no criminal history. He was employed casually but working full-time as a metal fabricator in the South East. The only fleeting reference the Judge made within his sentencing remarks to the personal circumstances of the applicant, is contained in the following comments:
You are now 21 years of age. You have no criminal history at all. You were educated in Mount Gambier and after year 12 commenced an apprenticeship to become a welder/boilermaker. It remains uncompleted for reasons not here relevant and it is your wish to return to it. You are presently employed as a casual worker.
The applicant does not have a problem with alcohol or drugs. There is no suggestion that the motivation for his offending was in any way drug-related. Rather, it seems that he was merely “caught up in the excitement” of the break-ins. The circumstances suggested a significant degree of immaturity in the applicant. Hence, during the course of sentencing submissions, counsel for the applicant made the following submissions regarding the applicant’s motivation for the offending and his subsequent remorse:
My client doesn’t present as someone who would commit these kind of offences, or other offences for that matter. I know that comes frorm me, but that’s how he presents to me. Just to back that up, he’s never been in trouble with the law before, apart from, he tells me, one minor on-the-spot traffic fine. I submit that despite the nature of the offences and the circumstances of the offending, it was very much out of character.
He is unable to explain coherently why he did it, expect that he was unemployed at the time, he was in debt and he tells me that, quite frankly, he did get caught up in the excitement of it.
Having said that, he also instructs me that since then he has been administered with a heavy dose of reality. He has found it shameful and embarrassing for him and his family and his friends to face these charges. Millicent is only a relatively small community and most people know about the offences he committed and he instructs me that he has had a pretty hard time of it, and an embarrassing time.
…
He does appreciate the harm he did to the community by committing such a long string of offences, and serious offences at that, and he does want to make amends by becoming a quiet and useful member of his community.
Even before he saw me and soon after he was apprehended by the police, he did look to apologise to each of the victims, but the first victim that he approached, although he did accept the apology, he did tell him that, from what he had heard, it would be better if he didn’t approach any of the other victims because they were pretty angry about what had happened.
To summarise, he is a young man, my client, who has most of his life still before him. He does have steady employment now and this has been the case since December at least. He has got no antecedent record of committing any kind of offence, let alone ones that he is being dealt with today.
The appellant’s position can be summarised as follows: – out-of-character offending, an unblemished antecedent record, a good school record, a history of employment, genuine contrition and remorse, early pleas of guilty, co-operation with the police, the absence of a need for personal deterrence and excellent prospects for rehabilitation.
The Sentence
Although the applicant’s course of offending conduct did involve repeat offending of a like nature with the same co-accused, it would not be correct to characterise it as a criminal enterprise. The sentencing Judge correctly characterised the applicant’s conduct as one “excursion into crime” engaged in for the purpose of obtaining a “quick buck” and also, it seems, simply for something to do. Counsel for the Crown did not challenge this characterisation. The fact that the individual offending over a number of weeks, on some occasions separated by weeks, does not affect the Judge’s characterisation of the offending as being the one incursion into crime.
The Judge accepted that the applicant was remorseful, contrite and unlikely to re-offend. The Judge observed:
I accept that whilst there was no rationale for this excursion into crime, except for a small amount of money and property and some excitement, you now have a realistic view of your predicament. I also accept this offending is out of character and that your present experience is such that you are unlikely to reoffend. I acknowledge that the remorse for your behaviour is reflected in your early pleas of guilty. To that extent, I am satisfied that the need for personal deterrence has but a small role in the calculation of the appropriate sentence.
This was a correct assessment. The applicant had learnt his lesson. He had been, and continues to be, ashamed in front of his family, friends and the local community. His shame and embarrassment operates as a reminder of the need to comply with the law. He remains in that community and continues to have contact with its members. It is significant that, following the laying of charges and before sentence, the applicant was able to obtain employment in the South East. These matters suggest that he has excellent prospects for rehabilitation.
As earlier observed, the Judge proceeded, pursuant to section 18A, to impose the one penalty in respect of all of the offences:
In fixing the appropriate sentence, I have regard to the nature of the offending, its length and that it disturbed the community. I also have regard to those other matters which I have separately mentioned.
Were it not for your pleas of guilty, I would have imposed a sentence of eight years imprisonment. Because of them, I allow a discount of 25%. You are sentenced to imprisonment for six years.
In fixing a non-parole period, I have regard to those matters which are personal to you, your youth, that you have not been to gaol before, that in my view you are unlikely to reoffend. I am able to be merciful in fixing this period, that is the non-parole period, at a lower level than might otherwise be so because of these matters.
I fix a non-parole period of two years and three months.
The seriousness of the offending outweighs in a significant way those matters which are said to provide a basis for suspending this sentence. It is not appropriate that it be suspended.
Counsel for the Crown accepted that this was an appropriate case to invoke the section 18A discretion. The offending involved an ongoing course of conduct. The Judge’s approach in this respect accorded with the terms of section 10 of the Criminal Law (Sentencing) Act.[9] The Judge was entitled to impose the one penalty in respect of the total offending and thereby to address the overall criminal culpability of the applicant.
[9](1) 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:
...
(c) 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;
This was an appropriate case in which to invoke the provisions of section 18A of the Criminal Law (Sentencing) Act. The sentencing Judge did not have to follow this course but he was entitled to do so.[10] Section 18A provides:
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.
[10] R v Symonds [1999] SASC 217.
In Simpson,[11] this Court recognised the difficulties facing a sentencing judge when dealing with multiple offending. That decision confirmed the wide discretion of a sentencing judge. The decisions of this Court in Elliot[12], Jason[13], P[14], LLK[15], and Power[16], all confirm the appropriateness of this approach. Earlier authorities of this Court decided before the introduction of section 18A of the Criminal Law (Sentencing) Act must be understood as addressing circumstances when the unfettered discretion granted by that section was not available.
[11] R v Simpson (2004) 89 SASR 515 at [54]-[62].
[12] R v Elliot (2001) 121 A Crim R 254 at [75] and [87].
[13] R v Jason (2002) 36 MVR 474.
[14] R v P (2003) 87 SASR 287.
[15] R v LLK (2003) 231 LSJS 458.
[16] R v Power [2003] SASC 288 at [18]-[19].
The advantage of invoking the section 18A discretion in the case of the one incursion into crime involving multiple offending is that it allows the court to properly address the overall criminality of the offender’s conduct and to arrive, as a matter of judgment, at an appropriate overall sentence. The approach avoids the artificiality referred to by this Court in Nylander,[17] where Bleby J (with the concurrence of Prior and Sulan JJ) observed:[18]
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[17] R v Nylander (2003) 228 LSJS 24.
[18] R v Nylander (2003) 228 LSJS 24 at [81]-[85].

These remarks are apposite. The applicant faced a maximum imprisonment term of substantially more than his life expectancy. The manner of approach of the sentencing Judge accorded with the terms of section 18A, the decisions of this Court and of the High Court. Neither counsel suggested that the Judge’s manner of approach or the use of section 18A were other than appropriate. The applicant’s contentions related to the suggested failure of the sentencing Judge to give sufficient weight to a number of important factors relevant to sentence. It is to those matters that I now turn.
The Appeal
Insufficient weight given to prior unblemished record, age and rehabilitation prospects
Pursuant to section 10(1) of the Criminal Law (Sentencing) Act, the sentencing Judge, when determining an appropriate sentence, was required to have regard to, inter alia, the applicant’s age and his prospects for rehabilitation. It is a well-recognised sentencing principle that a youthful first offender who has not embarked on a criminal way of life should be given, if possible, an opportunity to rehabilitate.[19] In general, youthfulness is a ground for extending leniency wherever possible.
[19] R v Weaver (1973) 6 SASR 265; Taylor v Barr (1987) 135 LSJS 106, R v Augoustinos (1975) 13 SASR 48, Yengi v Police [2003] SASC 220.
The following observations of this Court in Weaver,[20] although made more than 25 years ago, remain relevant:[21]
Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence. In the case of this young man the information from Dr. Salter and from the Rev. Mr. Jepson suggests that it is urgent for his establishment as a useful citizen that his treatment should not be interrupted. This is a case in which it is proper that the sentences imposed should be suspended. If, as has been suggested, persons convicted and members of the public take a light-hearted view of a sentence which is suspended then time will, we believe, prove them to be wrong. If the convicted person does not take seriously the warning that any breach of his recognizance during its term will lead to the serving of the suspended sentence, he is likely to appreciate its truth if he is convicted of even a minor offence. The public will learn the truth about suspended sentences only if it takes the trouble to inquire what a suspended sentence really means. In this connection the news media could be of assistance.
King CJ in Taormina v Cameron[22] commented:[23]
This appellant had no prior convictions. He was a young offender, being aged nineteen and twenty at the time of the commission of the offences, and twenty-one at the time of the conviction. Although the offences involved a fraudulent course of conduct, there were positive indications that the appellant had not embarked upon a criminal way of life. There was every reason to accept that he committed the offences in a misguided attempt to cope with the predicament in which he found himself as a result of his early and perhaps imprudent marriage, and his commendable desire to pursue a course of studies to equip him to be a useful and self-reliant member of society. Moreover a sentence of imprisonment if served at the time when it was imposed would have seriously disrupted his course of studies and, bearing in mind the financial and personal pressures upon him, might well have imperilled them altogether.
...
The affidavit shows that he successfully completed the year’s work for 1979 and that he has been accepted for full-time second year study in 1980. I think that it would be most unfortunate if this young man were now required to serve a sentence of imprisonment. It might put the successful completion of his course at risk. Obviously this would be disastrous for him, and it could be of no possible benefit to the society against which he has offended to damage his prospects of equipping himself to support himself and his wife.
[20] R v Weaver (1973) 6 SASR 265.
[21] R v Weaver (1973) 6 SASR 265 at 267.
[22] Taormina v Cameron (1980) 24 SASR 59.
[23] Taormina v Cameron (1980) 24 SASR 59 at 60-61.
In Inge v The Queen,[24] Gleeson CJ, Gaudron, Hayne and Callinan JJ recognised that the relative youth of an offender may enhance prospects for rehabilitation and may operate to mitigate aspects of the offence.[25]
[24] Inge v The Queen (1999) 199 CLR 295.
[25] Inge v The Queen (1999) 199 CLR 295 at 301.
It should be borne in mind that this was the applicant’s first incursion into crime. The criminal justice system has given the applicant no second chance. His convictions and sentence of immediate imprisonment followed a single apprehension. In other words, it is not the case that the applicant was apprehended and processed through the justice system (thus being afforded the opportunity to be made aware of the gravity and consequences of his actions), only then, notwithstanding, to continue offending.
On the face of the sentencing remarks, it appears that the Judge gave inadequate consideration to the applicant’s age and prospects for rehabilitation. Imprisoning a young man with positive employment prospects, with no prior criminal history who is remorseful, contrite and unlikely to re-offend, is a grave step. Imprisonment, with immediate effect, is a punishment of last resort.
The sentence imposed, including the decision not to suspend the sentence, suggests that the Judge did not have full regard to the prior unblemished record of the applicant and the out-of-character nature of the offending conduct. The sentencing Judge erred by failing to have sufficient regard to the applicant’s youth, his prospects for rehabilitation and his prior unblemished record. These errors impact on both the head sentence and the non-parole period.
Taking into account both the objective elements of the offending and the factors personal to the applicant, the sentence imposed by the sentencing Judge was excessive and manifestly so.
A starting point of eight years imprisonment for offending that amounted to a single incursion into crime in circumstances where no persons were present and therefore endangered is beyond the range of an appropriate sentence. This is particularly so having regard to the applicant’s youth, unblemished record, excellent prospects for rehabilitation and general personal antecedents.
The sentence of six years imprisonment can be fairly described as crushing for a young man of 21 years with no prior criminal record or court experience. Such a sentence, involving an immediate custodial sentence of more than two years, called for justice to be tempered with mercy. This did not occur.
Exercise of discretion to suspend
Counsel for the applicant submitted that the sentencing Judge erred in failing to exercise his discretion pursuant to the Criminal Law (Sentencing) Act to suspend the sentence of imprisonment. Section 38 provides:
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
I recently considered the discretion to suspend in Famiglietti.[26] The following remarks, extracted from that decision, are apposite to the present case:[27]
[26] R v Famiglietti [2005] SASC 489.
[27] R v Famiglietti [2005] SASC 489 [30]-[38] (footnotes original).
The courts have repeatedly and consistently emphasised that a suspended sentence is a very real punishment. The first such enunciation was that of Bray CJ in Elliot v Harris (No 2),[28] where his Honour stated: [29]
[28] Elliot v Harris (No 2) (1976) 13 SASR 516.
[29] Elliot v Harris (No 2) (1976) 13 SASR 516 at 527.
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve and automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
Over the ensuing decades, these remarks have been adopted, applied, reaffirmed and echoed on numerous occasions.[30]
…
The correct test to be applied by a sentencing judge when considering whether or not to suspend a sentence of imprisonment was recently discussed by Layton J in Hill.[31] Her Honour discussed the question, whether the applicable test was the “exceptional circumstances” test as discussed in Manglesdorf or the “good reason” test established by the legislature.
There is a substantial and important difference between the two tests. The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the individual case before him or her and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.
On the other hand, the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. In this way, the “exceptional circumstances” test represents a significant departure from the test set down by Parliament.
…
The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend. This is the test to be applied by sentencing judge’s in exercise of the discretion to suspend sentences. To state that, in addition to there being good reason to suspend, a case must also be rare or exceptional before suspension will be justified is to add a gloss to the words of the statute.
[30] See for example R v Harris (2001) 122 A Crim R 241 at [42]-[48] (Gray J); R v Regan [2003] SASC 287 at [27], [24]; Vartzokas v Zanker (1989) 51 SASR 277 at 279 (King CJ); R v Jarrett (1992) 58 SASR 457 at 459 (King CJ).
[31] R v Hill [2005] SASC 380 at [45]-[51].
In all the circumstances identified earlier, good reason existed to suspend the sentence of imprisonment. The personal antecedents earlier discussed enlivened the discretion to suspend. As earlier noted, the applicant had set about his rehabilitation. This was evidenced by early pleas of guilty, his contrition and remorse. He had returned to the Millicent community. He had obtained and retained employment. The sentencing Judge considered that the applicant was unlikely to re-offend. The applicant should be allowed to continue with his rehabilitation. The continuation of a custodial term will not advance his rehabilitation. It may well operate to impede his rehabilitation. As was observed by the Western Australian Full Court in Duncan:[32]
“When it has been demonstrated by evidence that society does not need to be protected from the applicant, should the punitive and deterrent aspects of the sentencing process be allowed to prevail, and possibly destroy rehabilitation which has been shown to have taken place”: see Dunn J (Wanstall CJ concurring) in Bell v R (1981) 5 A Crim R 347 at 351. In Bell’s case the court decided that the learned sentencing judge unduly fettered his sentencing discretion by believing that only custodial punishment could be imposed. The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
[32] Duncan v R (1983) 47 ALR 746 at 749.
The applicant’s youth, personal circumstances and prospects for rehabilitation rendered him worthy of a second chance. A suspension of the sentence imposed would afford the applicant this chance whilst at the same time still reflect the need for general deterrence identified by the sentencing Judge. As Perry J recognised in G v Police:[33]
General deterrence must, of course, always play its part. But there will be cases where the question of general deterrence will yield to personal factors or other matters which might amount to a good reason to suspend.
[33] G v Police (1999) 74 SASR 165 at 170.
Re-sentence
Having reached the conclusion that the sentencing Judge erred in determining an appropriate sentence, it is for this Court to re-sentence the applicant. When re-sentencing, regard should be had to the relevant circumstances of the offending and to the effect on the victims, as discussed earlier. The personal circumstances that have been outlined must also be considered. This Court, when re-sentencing, should also have regard to the applicant’s present circumstances. He has been in custody for almost three months. This no doubt has been a salutary lesson to him and would have reinforced his determination not to re-offend.
As the sentencing Judge identified, the applicant is not likely to re-offend. The offending was out-of-character. In these circumstances, it is appropriate to extend leniency to the applicant.
In re-sentencing, an appropriate starting point is a head sentence of four years imprisonment. In fixing this starting point, regard has been had to the overall criminal culpability of the applicant in this one incursion into crime. His conduct has the hallmark of immaturity. Four years as a starting point is a significant term of imprisonment for a young man with his personal antecedents. A reduction of one year on account of the applicant’s guilty pleas and co-operation with police should be made. This results in a head sentence of three years imprisonment.
The sentencing Judge recognised that matters personal to the applicant were of particular relevance in fixing a very short non-parole period. He fixed the non-parole period at a little more than one-third of the head sentence. This was an appropriate proportion and one that I propose to adopt when re-sentencing. A non-parole period of twelve months should be fixed.
The sentence of three years imprisonment should be suspended upon the applicant’s entry into a bond to be of good behaviour.
Conclusion
I would grant leave to appeal against the sentence. I would allow the appeal and set aside the sentence imposed by the District Court. I would sentence the applicant to imprisonment for three years with a non-parole period of twelve months. I would suspend the sentence.
VANSTONE J:
Introduction
This is an application for leave to appeal against a sentence imposed in the District Court for 25 offences, being mostly serious criminal trespass offences and some associated thefts. The Judge imposed a single sentence of six years imprisonment with a non-parole period of two years and three months, unsuspended. The proposed grounds of the appeal are that the sentence is manifestly excessive and that the Judge erred in declining to suspend it.
Background
The offences occurred over a period of nine weeks in the Millicent township. The premises targeted were business premises. When the offending commenced the applicant was 20 years of age. The offences were committed in company with a youth, who was then aged 15 years. In respect of some of the offences both offenders entered the subject premises and in respect of other offences, one or the other entered. It appears that on the basis of that distinction only some of the offences were charged as aggravated serious criminal trespass.
The offences comprised six counts of aggravated serious criminal trespass (maximum 20 years imprisonment), seven counts of serious criminal trespass (maximum 10 years imprisonment), ten counts of theft (maximum 10 years imprisonment), and two counts of attempted serious criminal trespass (maximum six years and eight months imprisonment). All were committed in the night. In respect of the counts of theft the value of the property stolen ranged from about $20 to about $3,500. However, in most cases the value of goods taken was minimal. Damage to the premises in effecting entry does not seem to have been separately charged.
Overall, there were 15 premises targeted on nine separate occasions.
Prior to embarking on this course of offending, the applicant was of good character. He was unemployed during the offending, but by the time of submissions on sentence had obtained full time employment. He was boarding with a woman of about 44 years who had two teenage children at home.
The applicant pleaded guilty before the Magistrate. It was put to the Judge in submissions that the applicant was unable to explain coherently why he embarked on this course of conduct, except that he was in need of money. It was put that he got “caught up in the excitement” of it. There was no question of involvement with drugs. The information given to the sentencing judge about the applicant was somewhat deficient. Nonetheless, the Judge found that it was unlikely that the appellant would offend again.
Analysis
In R v Delphin (2001) 79 SASR 429, this Court noted the then recent changes to the legislative scheme for what were formerly referred to as “breaking offences” and discussed the impact which those changes and the new and higher penalty maxima might have on the range of penalties imposed for such offences.
The Court referred to the old tariffs set by R v Halse (1985) 38 SASR 594 under which the penalty imposed in the Magistrates Court for a first offender committing a single shop breaking and larceny offence would have usually been nine to twelve months imprisonment. The Court noted that the maximum penalty for what was previously referred to as a “shop breaking and larceny” had gone from eight years imprisonment to ten years imprisonment for each of the serious criminal trespass and the theft offences into which the old offence was now divided. Dealing with a serious criminal trespass in a place of residence (maximum 15 years) the Court said it now was to be expected that a first offence, after a plea of guilty, would attract a sentence of the order of 20 to 24 months imprisonment.
Naturally, single offences lend themselves to a discussion of tariff. Multiple offences are not so susceptible. In respect of those, the task is to set a penalty which adequately reflects the course of criminal conduct, rather than taking a mathematical approach. Before the advent of s 18A Criminal Law (Sentencing) Act 1988 the appropriate sentence was arrived at – and considerations of totality met – by ordering that some sentences should run concurrently, or, sometimes, by artificially reducing the sentence on each crime and allowing them to run consecutively. That process may still be followed because a judge is not obliged to use s 18A. However the purpose of following that path is now usually limited to assisting the sentencing judge in arriving at an appropriate starting point as a forerunner to using s 18A and providing transparency in the sentencing process.
R v Major (1998) 70 SASR 488 was a prosecution appeal against the inadequacy of a sentence imposed for six counts of rape, two counts of indecent assault and two counts of burglary. There the Chief Justice said that even if a single sentence were to be imposed the sentencing judge should still consider (though not precisely) what individual sentences might otherwise have been imposed and consider the matter of whether any of those would have been made concurrent. A failure to do so might lead to a failure to impose a sentence reflecting the overall criminality involved.
In cases of multiple crimes of violence, including sexual violence against separate victims, I should think it would almost invariably be necessary to be at least as specific as the Major approach indicates.

However, it is not always necessary to follow that process, or, even if followed, to demonstrate in sentencing remarks the route taken to the final total. As the Chief Justice later observed in R v Symonds [1999] SASC 217, such an approach would not be indicated if the case were straightforward such that a consideration of separate sentences was an “unnecessary elaboration”. By way of further example he observed there would be cases where the totality principle would so obviously operate to reduce an otherwise appropriate sentence that it would become pointless to consider and assemble individual sentences. Accumulating individual sentences might give an unbecoming “air of unreality” to the sentencing process: R v Nylander [2003] SASC 191; (2003) 228 LSJS 24 at 39 per Bleby J, Prior and Sulan JJ agreeing. See also R v Power [2003] SASC 288 per Sulan J at [18], Doyle CJ and Besanko J agreeing.
Whichever approach is indicated, the fact remains that the greater the number of offences under consideration, the greater must be the breadth of discretion residing in the sentencing judge in terms of the sentence to be imposed. In my view that observation is exemplified in the case under consideration.
Here there were 14 separate victims and at least nine separate occasions when the applicant embarked on a course of offending. If this is counted only as nine incursions into criminal conduct then the applicant is fortunate. Because of the very extent of offending, the range within which the final sentence might fall was necessarily a wide one.
With respect to those who might take a different view, I see no reason why a judge dealing with such an array of offences of a broadly similar nature and seriousness should not, using his experience and judgment, select a starting point without attempting to justify it arithmetically. Doing so avoids creating an “air of unreality”. If it is not done, the totality principle would obviously come into play anyway. To do so is no more arbitrary an exercise than is the decision to make the sentences for any of the incursions run concurrently. Such an approach was approved in R v Kelly [2000] SASC 293 and followed without attracting adverse comment in R v Bennett [2005] SASC 55.
The question remains whether the sentence in this case is manifestly excessive.
When I first examined the matter I was inclined to think it was not, especially having regard to the legislative scheme, with its increased maxima, introduced in 1999. Were it not for the appellant’s relative youth and its corollary – the somewhat amateurish way in which the offending was carried out – I would have found it impossible to say that the starting point was too high and the head sentence manifestly excessive. However, having regard to his age and the fact that at the outset he had not previously committed any offence, I consider, on balance, that it is.
I acknowledge that the weight to be afforded to lack of prior convictions diminished as the course of offending proceeded and that at some point in an extensive course of such conduct, it becomes incongruous to say that the offences were out of character. However, the fact remains that the appellant had not previously experienced the recording of a conviction; what Cox J in R v McInerney (1986) 42 SASR 111 at 124 described as “a formal and solemn act marking the court’s, and society’s, disapproval of a defendant’s wrongdoing”. I consider that a head sentence of six years for offences involving neither risk of injury, nor any level of professionalism, imposed on an offender having these personal characteristics, with early pleas entered, can be categorised as manifestly excessive.
The appellant is a young man who seems to have fallen into this spate of offending. When the seriousness of his conduct is brought home to him and some guidance offered, he may well be able to put this limited period of irresponsibility behind him. It is in the community’s interest that he be encouraged in that endeavour. There is no doubt that his time in prison will weigh heavily upon him.
In my mind, giving full weight to these considerations, a head sentence of four years and six months would have been appropriate. That sentence would be arrived at after starting at six years and giving credit for early pleas of guilty to the extent of one-quarter. The factors favouring such a merciful sentence also dictate a lower than usual non-parole period. The sentencing judge recognised as much. I would fix that period at 20 months imprisonment.
I consider that the decision not to suspend the sentence was, and remains, plainly correct.
Conclusion
For these reasons I would allow the appeal, set aside the sentence imposed in the District Court and in its place impose a sentence of four years and six months imprisonment, with a non-parole period of 20 months.
I would make the following orders:
1.     grant leave to appeal;
2.     allow the appeal;
3.     set aside the sentence imposed in the District Court;
4.in its place impose one sentence of four and a half years imprisonment with a non-parole period of 20 months to be deemed to have commenced on 30 March 2006.
WHITE J: This is an application for leave to appeal against a sentence of imprisonment for six years (unsuspended) with a non-parole period of two years and three months. At the hearing, the parties made their submissions as though on an appeal itself.
Review of the Offending
Over a nine week period, the applicant broke into, or attempted to break into, or assisted his co-offender to break into, 14 different business premises in Millicent. The offending commenced in the early hours on 6 April 2005 with a non-aggravated serious criminal trespass into Fosters Foodland and concluded on 9 June 2005, the day before the applicant’s arrest.
The offending occurred in three distinct periods. Three offences were committed in April 2005. In addition to the trespass and theft involving Fosters Foodland, the applicant and his co-offender attempted (unsuccessfully) to enter other premises on the night of 12 April 2005. There was then no further offending for a period of five weeks. In the period from 18 May 2005 to 1 June 2005 (14 days) offences were committed at 10 premises (one twice). Then, after an interval of eight days, three offences, involving two premises, were committed on 9 June 2005.
The applicant pleaded guilty to a total of 25 offences: six counts of aggravated serious criminal trespass in non-residential premises; two counts of non-aggravated serious criminal trespass in non-residential premises; 10 counts of theft; two counts of attempted serious criminal trespass in non-residential premises; and five counts of aiding and abetting his co-offender to commit a serious criminal trespass in non-residential premises.
The seriousness of the offending is indicated by the penalties fixed by Parliament for these offences. The maximum penalty for aggravated serious criminal trespass in non-residential premises is imprisonment for 20 years. The maximum penalty for the offences of theft, non-aggravated serious criminal trespass, and aiding and abetting the non-aggravated serious criminal trespass is 10 years imprisonment. The maximum penalty for the offences of attempted non-aggravated serious criminal trespass is six years and eight months.
The applicant was aged 20 years and eight months when the offending commenced. The co-offender was just short of his 16^th birthday.
All the offences were committed after midnight or in the early hours of the morning. The method used on each occasion was similar. The applicant and his co-accused rode their pushbikes to unoccupied business premises and forced entry (or attempted to force entry), sometimes by smashing a window, sometimes by jemmying open a window or door with a screwdriver and sometimes by other means. Having done that, one or other of the two offenders would then enter the premises and steal items. There was some planning involved in the offending. The very time at which the offences occurred is an indication of this as the applicant and his co-offender, who lived separately, had to make arrangements to meet. In addition, they took some tools with them (a screwdriver or a hammer). It appears that the premises at which the offences were committed were not selected at random. This too suggests some pre-planning was involved.
Although in most cases, the value of the items taken was not, in a relative sense, large, it is evident that the offending constituted a considerable affront to the Millicent community. Further, the disruption and inconvenience involved in the repair of the damage caused by the applicant and his co-offender in obtaining entry, the replacement of stolen items and in the case of some of the businesses, in being called out by the police in the early hours, should not be underestimated. Some of the stolen items were recovered, but there has not been any restitution to the victims.
In some respects, the commission of these offences is a little puzzling. The applicant had no prior criminal history at all and appears to have been of good character. He had left school having completed Year 12 and had worked as an apprentice for two years. For reasons which were not explained to the sentencing judge, he was unemployed at the time of the offending. It was common ground that the commission of the offences was unrelated to any drug addiction or to alcohol. The applicant gave an explanation to the police for his actions:
… I thought the opportunity was there to get a quick dollar so that I could get myself you know, a little bit ahead financially so that I could go and do a few things that I wanted to. It was pretty much stupid.
In the course of her submissions at first instance, the prosecutor said that the offending seemed to the applicant to be “a bit of a lark”. There are indications in the interviews of the applicant and his co-offender supporting that characterisation. It was obviously a factor which troubled the sentencing judge. He regarded the circumstances as indicating “a gross lack of maturity”. Nevertheless the conduct of the appellant involved a considerable degree of persistence in criminal behaviour. The appellant and his co-offender persisted with their offending despite the publicity which it, and the associated police investigation, was receiving.
The Approach of the Sentencing Judge
The sentencing judge was therefore faced with a difficult sentencing task. On the one hand the judge had to sentence the applicant for multiple offences of a serious and common kind which had caused considerable affront to the Millicent community. The offences were pre-planned and of a kind in which considerations of punishment and general deterrence are important.
On the other hand, the applicant was an offender who had, prior to 6 April 2005, an unblemished record and whose conduct was to be explained in part by greed, and in part by gross immaturity. In addition, the applicant had, after some initial dissembling, been quite frank and cooperative with the police; he had attempted to demonstrate in a practical way his remorse, and he was by the time of his sentencing in responsible employment. The sentencing judge accepted that the applicant’s prospects of rehabilitation were good, and indeed, that he was unlikely to re-offend. In the particular circumstances of this case, the judge considered that the element of personal deterrence had only a small role to play in the sentence.
Invoking s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”), the judge took as a starting point a single sentence of eight years imprisonment, reduced that to six years on account of the pleas of guilty, and then fixed a non-parole period of two years and three months. He refused to suspend that sentence. The judge did not indicate how he reached the starting point of eight years imprisonment.
The sentencing judge said that the appellant’s conduct could be treated as the one incursion into criminal behaviour. In view of the five week interval between the offending in April and the resumption of offending on 18 May 2005, and again on 9 June 2005, this was perhaps favourable to the applicant. However, it was not contended on appeal that this characterisation was inappropriate.
Although the sentencing judge considered that the sentence imposed need not reflect in a significant way an element of personal deterrence, he took a different view with respect to general deterrence. In this regard the sentencing judge said:
There is a clear and obvious requirement that all persons be aware that when a community is assaulted in this way there will be available from the court an appropriate sentence to reflect the seriousness of the offending and the need to protect the community. In the same way, the need for the sentence to reflect adequate punishment in such circumstances as here exist is also important.
Section 18A and Reasons for Sentence
A considerable body of authority has developed as to the extent to which a sentencing court should give some explanation as to the means by which a single sentence, imposed pursuant s 18A, is reached. In R v Major Doyle CJ said:
I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.[34]
[34] (1998) 70 SASR 488 at 490.
In Major, Olsson J had said in relation to the use of s 18A:
As was pointed out by Legoe J in R v Nixon, the discretion as to whether or not to resort to the imposition of a single sentence for relevant multiple offences, as authorised by s 18A of the CLSA, is unfettered. However, that section is not a substitution for, and does not replace, the existing law and practice relating to the structure of multiple offences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence.[35]
[35] (1998) 70 SASR 488 at 497.
The approach in Major has been followed in a number of later decisions and, in particular, by a Full Court of five in R v Place.[36] As was pointed out in Major, a sentencing court runs a serious risk of error if notional sentences for each offence are not identified and then consideration given as to whether they should, if imposed, be served cumulatively or concurrently.[37]
[36] (2002) 81 SASR 395 at 432.
[37] R v Major (1998) 70 SASR 488 at 490, per Doyle CJ; R v Gale (1999) 74 SASR 235 at 238 [18].
Whenever the Major approach is followed, the process by which the single sentence imposed was reached is made apparent.
However, there are cases in which it is neither practical nor sensible to identify each of the sentences which would be imposed had a separate sentence be imposed for each offence. In those cases, it has been held that it is appropriate for a sentencing court to go more directly to the single sentence fixed pursuant to s 18A. Thus, in R v Symonds Doyle CJ, with whom Prior and Mullighan JJ agreed, said:
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.
The circumstances in which it may be appropriate for a sentencing judge to go directly to the single sentence include those when “the case is so straight forward that the separate consideration of the individual sentences is an unnecessary elaboration”[38], or when it is obvious that the totality principle would be applied to reduce the aggregate of the individual sentences if they were imposed[39], or when the court is sentencing in accordance with a sentencing standard applicable to multiple offending[40], or when the offending can be said to constitute a single course of conduct[41].
[38] Ibid
[39] Ibid; see also R v Nylander [2003] SASC 191 at [81] where the total of the accumulated notional sentences exceeded the life expectancy of the defendant; R v Kelly [2000] SASC 293.
[40] For example R v LLK [2003] SASC 431 at [14] per Doyle CJ in relation to the sentencing standard for multiple offences of unlawful sexual intercourse constituting a course of conduct established by R v D (1997) 69 SASR 413 at 424; see also R v B, RWK [2005] SASC 84 at [17] per Doyle CJ.
[41] R v Elliott (2001) 121 A Crim R 254 at 266-267; R v Jason [2002] SASC 201 at [20]-[21].
Whichever approach is followed, regard must be had to the individual sentences which may have been imposed had the defendant been sentenced separately for each offence. Thus, in R v Place, Doyle CJ, Prior, Lander and Martin JJ (with whom Gray J agreed) said:
… 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 under s 18A did not exist.[42]
[42] (2002) 81 SASR 395 at 432. See also R v LLK [2003] SASC 431 per Perry J at 31.
In a number of cases, it has been said that when a court does not adopt the Major approach, it should nevertheless give some explanation of the means by which the single sentence was reached. In this regard, Doyle CJ has said that sentencing judges should be mindful of the need to give an adequate explanation of how the ultimate sentence is determined.[43] See also R v Waugh.[44] There are several ways by which an explanation of the way in which the single sentence was fixed may be given. The sentencing court may, for example, refer to an applicable sentencing standard which is being applied[45], or it may identify the appropriate individual sentences for the more serious offences involved, and indicate whether they would, if imposed separately, have been ordered to be served concurrently or cumulatively, or the sentencing court might state a sufficient number of individual sentences so that the judge regards any further identification of individual sentences as unnecessary[46].
[43] R v Gibbs [2004] SASC 187 at [3].
[44] [2005] SASC 470 at 43.
[45] Cf R v LLK [2003] SASC 431 at [14].
[46] R v Waugh [2005] SASC 470 at [43].

What will be a sufficient explanation in a given case is likely to depend upon the circumstances of each case.
The giving of some explanation by the sentencing judge has a number of advantages, not least of which is that it aids transparency in the sentencing process. When a sentencing judge does not give at least some explanation of how a single sentence imposed for multiple offending was reached, the appellate process can be compromised.[47] It may not be an error for a judge not to give some explanation, but experience suggests that cases in which no explanation is provided are more vulnerable to being disturbed on appeal.
[47] Cf R v Sevo [2006] SASC 124 at [18] per Doyle CJ.
The difficulty in sentencing for multiple offences, even where those offences constitute one course of conduct, is well known. In Attorney-General v Tichy Wells J said:
… 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 characterized 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 characterization 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.[48]
[48] (1982) 30 SASR 84 at 92-3.
To that statement of general approach may be added a passage from the judgment of King CJ in R v Blain:
… generally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed both by the charges in the information and the matters asked to be taken into account. I do not say that that is the only way in which it can be done, but it seems to me that it is the most appropriate way.[49]
[49] (1984) 115 LSJS 270 at 273.
Assessment of the Sentence
As the sentencing judge has not indicated the means by which his starting point of eight years was reached, I consider it appropriate to consider the way in which an appropriate sentence might have been reached. The result of this process will produce one measure by which the reasonableness of the sentence may be assessed.
In my opinion, in the particular circumstances of this case, the appellant’s offending (treated as one incursion into crime) could have been punished appropriately by the imposition of cumulative sentences of imprisonment in respect of one of each of the groups of offences which was committed. By the groups of offences, I am referring to the offences committed in April 2005, the offences committed in the period from 18 May 2005 to 1 June 2005 and the offences committed on 9 June 2006.
On 6 April 2005, the applicant encouraged his co-offender to smash a window at Fosters Foodland in Millicent. The co-offender then entered the store. He stole two bottles of wine and a small amount of cash (approximately $100). Those proceeds were then shared between the two offenders. At the time of the commission of that offence, the appellant had an unblemished record. When account is taken of his age, immaturity and that good record, my opinion is that a single sentence of the order of 16 months imprisonment for the offences of aiding and abetting a non-aggravated serious criminal trespass and the theft would have been appropriate. It is not necessary presently to identify separate sentences for those two offences.
The most serious of the offences committed in the period between 18 May 2005 and 1 June 2005 appears to be that which was committed on the night of 23 May 2005. The appellant and his co-offender forced open the showroom window of Whitehead Rural Services, using a screwdriver as a jemmy. Whilst the applicant kept watch, the co-offender entered the premises. A laptop computer, a power inverter and some cash were stolen. The overall value of the property and cash taken was of the order of $3,600. Those offences constituted the sixth and seventh in a series of offences committed by the applicant and his co-offender. The culpability of the applicant in respect of this offending is greater than it was in the case of the earlier offending. It was not his first offending and he had had a considerable period in which to reflect upon the wrongness of his conduct. For the pair of offences committed on this occasion, an appropriate single sentence (fixed pursuant to s 18A) would, in my opinion, have been of the order of 26 months imprisonment. Again I do not think it necessary to identify separate penalties for the two offences involved.
Three offences were committed in the early hours of 9 June 2005. Two of these were committed at the IGA Supermarket. The accused and his co-offender forced open a roller door. Both then entered and stole cigarettes to the value of about $840.00. These offences were more serious than the attempt, at about the same time, to break into a hairdressing salon. In my opinion, a sentence of the order of 30 months imprisonment would have been appropriate in respect of the offending at the IGA Supermarket. It is not necessary to identify a separate notional sentence in relation to the offence at the hairdressing salon, as I am satisfied that the sentences, if imposed, would be ordered to be served concurrently.
Although comprising the one incursion into crime, I consider that it would have been appropriate for these sentences, if imposed individually, to have been cumulative. In that way, the overall criminality involved in the course of conduct is reflected appropriately in the sentence. At the same time, had individual sentences been imposed in respect of the remaining offences, it would have been appropriate for them to be ordered to be served concurrently. Approaching the matter in this way gives effect, in my opinion, to the approach endorsed by Gaudron and McHugh JJ in Griffiths v The Queen:[50]
It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently. (Citations omitted).
That makes it unnecessary presently to identify the sentences which may have been appropriate for those remaining offences.
[50] (1989) 167 CLR 372 at 393.
The total of three notional sentences which I considered above, should be ordered to be served cumulatively, is six years imprisonment. The starting point adopted by the judge was eight years. In my opinion, the difference between those two starting points is so large that the judge’s starting point should be regarded as manifestly excessive and the sentence derived from that starting point set aside. That makes it necessary for the applicant to be re-sentenced.
Re-Sentence
I would take as the starting point a single sentence, fixed pursuant to s 18A of the CLSA, of six years imprisonment. That should be reduced by 25 per cent on account of the early pleas of guilty, the applicant’s cooperation with the police and his remorse. Accordingly, I would sentence the applicant to imprisonment for four years and six months.
The sentencing judge fixed an unusually low non-parole period. He was, in effect, invited to do so by the prosecutor who had submitted that the applicant’s youth, immaturity, previous good record and his good prospects of rehabilitation could be reflected in this way. I agree, in the particular circumstances of this case, that such a course is appropriate. I would fix a non-parole period of one year and eight months.
Suspension
A sentence may be suspended if there is good reason to do so.[51] There are a number of factors upon which the applicant relied in submitting that the discretion should be exercised in his favour. A number of them have already been mentioned. I repeat, in particular, the applicant’s previous good record, and the assessment by the sentencing judge that he was unlikely to re-offend. There is no reason to suppose that the applicant’s expressions of remorse are not sincere. In addition, the applicant was in employment at the time of sentencing. His employer, who was aware of his offending, was willing to continue to employ him. As I understand the submission of Mr Stokes, the employer’s willingness to continue to employ the applicant had been reconfirmed only shortly before the hearing of the application for leave to appeal. In addition, there is the fact relevant on re-sentencing that the applicant has now been in custody since 30 March 2006. It is to be expected that this is having a salutary effect upon him.
[51] CLSA s 38.
Despite those factors, I do not consider that good reason has been shown to suspend the sentence which I would fix. The offending of the applicant is too serious to make an exercise of the discretion in his favour appropriate. It involved 14 separate business premises. Although being treated as a single incursion into criminal behaviour, it was an incursion with considerable persistence. The offending resumed after two opportunities for pause and reflection. His offending was not spontaneous or random. On the contrary, it seems that each offence must have been planned. The applicant must have been aware of the concern which his conduct was causing in the Millicent community. He must have been aware that considerable police resources were being devoted to the detection of the offenders. Despite that, he continued, motivated by greed, to engage in criminal conduct. He has himself acknowledged the affront to the Millicent community which his conduct caused. The very fact that the appellant chose not only to commence, but to persist in such serious criminal behaviour militates against suspension.
Although it is unfortunate that at such a young age he should have to spend time in custody, my opinion is that the very number of offences, the persistence involved in their commission and the need for the sentence to have a punitive as well as a general deterrent effect, makes suspension inappropriate. I would not suspend the sentence. I repeat that account has been taken of the factors favourable to the applicant in the fixing of an unusually low non-parole period.
Conclusion
In summary, I would grant the application for leave to appeal, I would allow the appeal and I would set aside the sentence imposed by the sentencing judge. In lieu thereof, I would sentence the applicant to imprisonment for four years and six months and I would fix a non-parole period of 20 months. I would not suspend the sentence.