R v W, PL - [2017] SASCFC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, PL
[2017] SASCFC 119
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Lovell and The Honourable Justice Doyle)
18 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
Following pleas of guilty, the appellant was convicted of four counts of indecent assault, offending which occurred against a background of similar conduct over a period of years in relation to two victims. The two victims were his stepdaughters, D and J, who were between 12 and 16 years of age at the time of the offending, with the former being intellectually handicapped from birth.
The appellant was in his late forties at the time of the offending, and was 84 years of age at the time of sentencing. He was sentenced to five years and eleven months imprisonment, with a non-period period of four years. This was arrived at after reductions on account of the appellant’s pleas of guilty, accumulation of the sentences for counts 1 and 2, and an adjustment of six months in relation to counts 3 and 4.
The appellant sought permission to appeal to the Criminal Court of Appeal on two grounds:
1.       That the sentencing judge failed to properly consider whether counts 2 and 3 should be served concurrently, and failed to reduce the sentence on account of the principle of totality (resulting in two process errors); and,
2.       That the sentence was manifestly excessive (resulting in an outcome error).
The appellant was granted permission to appeal on ground two, with ground one being referred to this Court for consideration.
Held per Doyle J (Bampton and Lovell JJ agreeing):
1.       Permission to appeal is granted on ground 1.
2.       The appeal in relation to ground 1 fails as the sentencing judge did not overlook the need to ensure proportionality (whether through application of concurrency or totality).
3.       The appeal in relation to ground 2 is allowed as the ultimate sentence imposed is disproportionate to the overall criminality and circumstances of the offending and the offender, in that the sentence is outside the appropriate range of what was reasonably necessary to achieve sentencing objectives.
4.       The appellant is resentenced to a period of three years and nine months imprisonment, with a non-parole period of two years. The sentence is not suspended, and is to commence from 7 April 2016.
Criminal Law (Sentencing) Act 1988 (SA) ss 10C, 18A, referred to.
Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499, applied.
R v Harvey (No 2) [2014] SASCFC 106; Mill v The Queen (1988) 166 CLR 59; R v Copeland (No 2) (2010) 108 SASR 398; R v D (1997) 69 SASR 413; R v E, AD (2005) 93 SASR 20; R v H, GJ [2014] SASCFC 102; R v Scott [2017] SASCFC 96; R v Smoker (2016) 126 SASR 201; R v Wakefield (2015) 121 SASR 569; R v V, AJ [2012] SASCFC 10, discussed.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Herbert v The Queen (2003) 27 WAR 330; Jarvis v The Queen (1993) 20 WAR 201; Pearce v The Queen (1998) 194 CLR 610; R v Chesterman [2017] SASCFC 31; R v Cramp (2010) 106 SASR 304; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 201; R v Knight (1981) 26 SASR 573; R v Morse (1979) 23 SASR 98; R v Major (1998) 70 SASR 488; R v Place (2002) 81 SASR 395; R v Symonds [1999] SASC 217; R v Randall-Smith (2008) 100 SASR 326, considered.

R v W, PL
[2017] SASCFC 119
Court of Criminal Appeal: Bampton, Lovell and Doyle JJ

BAMPTON J: I agree with the reasons of Doyle J. I would grant permission to appeal on ground 1, allow the appeal, and resentence in the manner proposed by Doyle J.
LOVELL J: I agree.
DOYLE J: This is an appeal against sentence.
The appellant is an 85 year old man. He pleaded guilty to four counts of indecent assault. The offending took place between 1977 and 1982 with the two victims being his stepdaughters, D and J.
The sentencing judge, having commenced by identifying a separate notional head sentence for each offence, ultimately imposed a single sentence of five years 11 months imprisonment. He fixed a non-parole period of four years.
The appellant relies upon two grounds of appeal:
1. The sentencing discretion miscarried. Two particulars of this error are identified. First, that the sentencing judge erred in failing to properly consider whether counts 2 and 3 should be served concurrently. Secondly, that the sentencing judge erred in failing to properly consider the extent to which the sentence should be reduced on account of the principle of totality.
2. The sentence was manifestly excessive, both as to the head sentence and the non-parole period.
A judge of this Court granted the appellant permission to appeal on the second ground, and referred the first ground to this Court.
Circumstances of the offending
The appellant was born in February 1932. He married the mother of his victims in 1974, when D was nine years of age and J was seven years of age. D has been intellectually handicapped since birth.
The charged offending took place between 1977 and 1982, when the appellant was in his late forties. The offending was not isolated. It occurred in the context of a number of sexual assaults against the two victims, with the assaults against D being more prolific. It also occurred in a context where the victims’ mother was suffering from a long-term heart condition and was often unwell, and was on one occasion hospitalised for an extended period.
The appellant used his position of authority and trust as the victims’ stepfather, and their consequential vulnerability, to assist him to commit his offending, including by accusing them of not showing their love for him to secure their compliance. And he used both his position, and the likely impact of disclosure upon their unwell mother, to secure their silence.
Count 1 related to an incident that occurred between 1977 and 1979, when D was between 12 and 14 years of age. The appellant placed both his hands on the exposed breasts of D. The incident was witnessed by J.
Count 2 related to an incident in late 1981, when D was 16 years of age. While D was naked from the chest down, the appellant lay on top of her with his penis exposed. Again, this incident was witnessed by J.
Count 3 occurred on the same day as count 2, and immediately following it. After realising that J had seen him lying on top of D, the appellant followed J into a bedroom. He told her not to tell her mother what she had seen because she was sick and it would kill her. While sitting on the bed, the appellant unbuttoned her nightie, touched her breasts and sucked her nipples. He stopped when she told him to, but became aggressive towards her, accusing her of not loving him. He told her again not to tell her mother. J was 14 years of age at the time of this incident.
Count 4 occurred in either late 1981 or early 1982, when J was 14 years of age. Having followed J into a bedroom, the appellant placed his hands underneath her top and bra, and touched her breasts. He then undid her bra and sucked on her left nipple while touching her right breast.
The offending was reported to the police in February 2014, when D and J were in their late forties. The appellant was arrested in March 2015.
When interviewed by the police, the appellant denied having indecently assaulted J. He told the police that he had had sexual intercourse with D on one occasion, but that she was 17 at the time. He said that the incident occurred when he was 50 years of age, and at a time when he and D were in love with each other.
On 20 August 2015, the appellant was committed for trial in the District Court. He was committed for trial on two counts of persistent sexual exploitation of a child. The two accounts related to D and J respectively.
When arraigned on 21 September 2015, the appellant was arraigned on a new Information charging him with four counts of indecent assault, being the four counts the subject of this appeal. His arraignment was adjourned for a couple of weeks.
When arraigned on 6 October 2015, the appellant pleaded guilty to two counts of indecent assault, being counts 2 and 3 and relating to D and J respectively. He pleaded not guilty to counts 1 and 4.
On 10 December 2015, the appellant was re-arraigned on the two counts to which he had pleaded not guilty, namely counts 1 and 4. On that occasion he pleaded guilty to those two counts.
The timing of the appellant’s pleas of guilty relative to the new Information meant that he was entitled under s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to discounts of up to 40 per cent for counts 2 and 3, and up to 20 per cent for counts 1 and 4.
The maximum penalty for each of the counts of indecent assault to which the appellant pleaded guilty was five years imprisonment.
There is no doubt that the appellant’s offending was serious. It involved a gross breach of trust given that the victims were his young stepdaughters. Indeed, it involved a positive misuse of his position of trust, and the poor health of the victims’ mother and their consequential vulnerability, in securing the victims’ compliance and silence. It occurred in the broader context of a number of similar sexual assaults against the two victims. It is an aggravating feature of the appellant’s conduct that one of his victims, D, was intellectually handicapped. It is also an aggravating feature of count 3 that the appellant appears to have used the opportunity provided by J seeing him engaging in the conduct the subject of count 2, together with his position as stepfather, both to create an occasion to offend against J and to ensure her silence.
As the victim impact statements of the two victims made plain, the appellant’s offending has had a profound and ongoing impact on their lives.
The appellant’s personal circumstances
The appellant was assessed by a psychologist, Dr Balfour, in early 2016. In his report dated 25 February 2016, Dr Balfour described the appellant as a man of at least average intelligence, with good literacy and numeracy skills, a strong work ethic and an excellent employment history. The appellant had experienced a difficult childhood as a result of being exposed to multiple psychosocial stresses. However, despite this difficult start to life, he went on to lead a productive life, largely occupied by work and family. Dr Balfour did not identify the appellant as possessing any of the traditional historical or acute criminogenic risk factors that research had suggested might predispose the appellant towards offending in the way he did.
The appellant told Dr Balfour that he was happily married to the victims’ mother at the time of the offending. However, he said that approximately 10 years into that marriage he and his wife had ceased sexual relations because his wife had developed heart problems. The appellant told Dr Balfour that he believed that he became sexually frustrated. Dr Balfour said that the appellant did not reveal any other reason for his offending, other than that he did it “because I was stupid”.
While the appellant lacked insight into his offending, and the reasons for it, he did acknowledge to Dr Balfour that his offending was wrong, and involved a “total betrayal of trust”. He acknowledged that it had been “a life changing episode for everyone”, and that it had destroyed the victim’s lives.
Further, as the sentencing judge noted, from the time of his offending through to his incarceration, the appellant had done much good work in the community. He had undertaken a significant amount of volunteer work, both for a humanitarian agency and in the local community. The appellant has no criminal history either prior to, or subsequent to, the subject offending.
The appellant was 84 years of age at the time of sentencing, and was suffering from significant health issues that, as the sentencing judge observed, would make his time spent in custody more difficult than for a younger man of better health. The sentencing judge was also told that the appellant’s imprisonment would affect a woman with whom he was then residing, and her children.
The appellant’s sentence
The sentencing judge approached the task of sentencing the appellant by first identifying a notional starting point for each count, which he then reduced by the maximum available for each plea of guilty, being 20 per cent for counts 1 and 4, and 40 per cent for counts 2 and 3.[1] The starting points identified were as follows:
·    Count 1: imprisonment for two years, reduced by approximately 20 per cent to one year seven months.
·    Count 2: imprisonment for three years six months, reduced by approximately 40 per cent to two years one month.
·    Count 3: imprisonment for two years, reduced by approximately 40 per cent to one year two months.
·    Count 4: imprisonment for two years, reduced by approximately 20 per cent to one year seven months.
[1]    The discounts in fact were slightly more than the applicable maxima, but no point was taken about this.
The sentencing judge then proceeded to accumulate the sentences in relation to the offending against D (counts 1 and 2), giving a subtotal of three years eight months imprisonment. His Honour did the same for the two counts relating to J (counts 3 and 4), but then “adjusted” that subtotal by reducing it by six months, giving a subtotal of two years three months. His Honour then accumulated these two subtotals to arrive at a single head sentence of five years 11 months.
The sentencing judge explained his approach in the following terms:
The sum of the two terms of imprisonment for the first and second counts is three years and eight months. Those two counts relate to your offending against D. They occurred over a very significant time. I do not consider there is any need to adjust that term.
The sum of the two terms of imprisonment for the third and fourth counts is two years and nine months. These two counts relate to your offending against J. I consider that I should adjust that to a single sentence of imprisonment for two years and three months for these two counts.
I consider that the sentences that relate to your two victims should be accumulated such that I impose a single sentence of imprisonment for all your offending for five years and 11 months.
The sentencing judge then fixed a non-parole period of four years. His Honour declined to suspend the appellant’s sentence and ordered that it apply from the date of sentencing. He also made intervention orders in respect of both victims.
The appeal
The appellant’s first ground of appeal alleges two process errors: an error in not ordering at least partial concurrency in respect of counts 2 and 3, and an error in not reducing the appellant’s sentence on account of totality.
The appellant’s second ground of appeal alleges outcome error. It is said that the overall sentence imposed was manifestly excessive.
While the three alleged errors are each conceptually distinct, they raise related issues. The reason for this is that the principles of concurrency and totality, which are the subject of the two alleged process errors, have a common rationale in the need to ensure, in a case involving multiple offences, that the aggregate sentence is proportionate to the overall criminality and circumstances of the offending and the offender. Further, so far as the outcome error alleged in the second ground is concerned, it is true that the complaint of manifest excess does not require identification of the particular error or errors that have infected the sentence. However, in the circumstances of the present case, where the challenge is to the aggregate sentence rather than any individual component of it, the challenge is best understood as a contention that the sentencing judge erred by imposing a sentence that was outside the appropriate range because it failed to have adequate regard to ensuring proportionality whether through an application of the principles of concurrency or totality or otherwise.
It is convenient to commence with some observations about the relevant principles before then addressing their application to the present case.
The principles of concurrency and totality are generally treated as two separate principles, invoked at different stages of the sentencing process. But in recognition of the common role that proportionality plays in providing the rationale for (or at least significantly informing) those two principles, the notion of totality is on some occasions used in a broader sense as encompassing the full range of sentencing options or mechanisms available to a sentencing judge in the case of multiple offences to ensure the aggregate sentence is proportionate to the overall criminality and circumstances of the offending and offender. For the balance of these reasons I will use totality in the former and narrower sense, rather than being synonymous with the broader concern to ensure proportionality.
The range of methods available to a sentencing judge to ensure proportionality in the aggregate sentence when faced with multiple offences includes the following four options.
First, the sentencing judge may, after determining the sentences appropriate for the individual offences, order that one or more of the individual sentences be served concurrently, either in full or in part. The paradigm operation of the principle of concurrency is in the context of sentences for offences that involve a single course of, or incursion into, criminal conduct. As Wells J explained in Attorney-General (SA) v Tichy:[2]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of 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.
[2] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93.

But the operation of the principle of concurrency need not always be confined to cases involving a single course of conduct. In R v Copeland (No 2),[3] Kourakis J (as he then was), in explaining the rationale for concurrency, observed that even when the connection between the two offences is insufficient to characterise them as involving a single course of conduct, there may nevertheless be sufficient reason to make the sentences at least partially concurrent. His Honour said:[4]
It is difficult, but I think useful, to attempt to identify why it is that very similar and proximate offences committed in furtherance of a single criminal plan warrant, at least to some extent, concurrent sentences.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen[5] Ipp J explained this consideration in the following way:[6]
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison. (Emphasis added.)
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
[3]    R v Copeland (No 2) (2010) 108 SASR 398.
[4]    R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106].
[5]    Jarvis v The Queen (1993) 20 WAR 201.
[6]    Jarvis v The Queen (1993) 20 WAR 201 at 202B-D per Ipp J, approved in Herbert v The Queen (2003) 27 WAR 330.
As Kourakis J went on to observe, the considerations underpinning the principle of concurrency are closely related to those that underpin a reduction made for totality (in the narrow sense):[7]
The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality. Where, for example, a sentencing judge commences with a notional sentence which is calculated by simply multiplying the sentence which would have been imposed on one of a series of offences, by the number of offences committed in that series, there will almost always need to be a substantial reduction for totality. However, if the notional head sentence is arrived at after making proper allowance for the appropriate degree of concurrency, the artificiality commented on by Bleby J in R v Nylander will seldom arise. In such a case the notional sentence may only need to be adjusted, if at all, to allow some scope for rehabilitation in the circumstances of the particular offender.
(Citations omitted)
[7] R v Copeland (No 2) (2010) 108 SASR 398 at [107].
An important aspect of achieving proportionality in the ultimate sentence imposed is ensuring that there is no overlap in the considerations brought into account. In my view, a measure of concurrency may be appropriate in any case where there is an overlap in the matters relevant to the appropriate sentences for multiple offences. This may include offences not aptly described as a single course of conduct, but where the context of the imposition of a penalty for one of the offences affects what is necessary to achieve the deterrent, punitive and rehabilitative objectives of the sentence for the other offending.
A second option available to a sentencing judge when sentencing an offender for multiple offences is to lower one or more of the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. While this option was expressly endorsed by the High Court in Mill v The Queen,[8] the Court went on to state that an application of the principles of concurrency will, where practicable, be preferable to this approach.
[8] Mill v The Queen (1988) 166 CLR 59 at 63.
A third option available to a sentencing judge in seeking to ensure proportionality is to invoke s 18A of the Sentencing Act and impose a single sentence for two or more offences. This section may be invoked either at an interim stage of the sentencing process in relation to a group or a subset of the offences for which the offender is to be sentenced, or at the end of the sentencing process in arriving at an overall sentence. Indeed, it may even be invoked at both of these stages of the sentencing process for the same offender.
When utilising s 18A, it is not always necessary to identify the individual notional sentence (or component of the overall sentence) referable to each offence, or to otherwise articulate in precise or detailed terms how the ultimate sentence was determined. However, even when utilising s 18A, there is often some utility in at least identifying the notional sentences, or components of the overall sentence, referable to the individual offences. In some cases (for example, where there are differing guilty plea discounts for one or more of the individual offences) it may be necessary to do so.[9] Further, the ordinary principles governing concurrency and accumulation of sentences should, at the very least, inform the approach taken in determining a sentence to be imposed under s 18A.[10]
[9] R v Wakefield (2015) 121 SASR 569.
[10] R v Major (1998) 70 SASR 488 at 490, 497; R v Symonds [1999] SASC 217 at [21]-[22]; R v Randall-Smith (2008) 100 SASR 326 at [23]; R v Cramp (2010) 106 SASR 304 at [57]; R v Copeland(No 2) (2010) 108 SASR 398 at [93]; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 201 at [31].
The fourth option that a sentencing judge might employ is an adjustment at the final stage of the sentence as a result of a “last look”[11] or an overall or final review[12] of the aggregate sentence to be imposed. It is this fourth option that is generally referred to as the principle of totality, and is what I have referred to as totality in the narrow sense. The principle, and its rationale of ensuring proportionality, has been articulated in various ways. Some of the key authorities were conveniently summarised in the following passage from the reasons of Lovell and Hinton JJ in R v Smoker:[13]
[11] Mill v The Queen (1988) 166 CLR 56 at 63.
[12] R v E, AD (2005) 93 SASR 20 at [38]; R v Cramp [2010] SASC 51 at [55].
[13] R v Smoker (2016) 126 SASR 201 at [69]-[71]; R v Scott [2017] SASCFC 96 at [51].
In Mill v The Queen, a unanimous High Court said:[14]
[14] (1988) 166 CLR 59 at 62-63; See also, Pearce v The Queen (1998) 194 CLR 610 at [45] (McHugh, Hayne and Callinan JJ).
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
So stated the principle acknowledges that in sentencing for more than one offence each representing separate incursions into criminality, the aggregation of such sentences consistent with principle carries with it the risk of the imposition of an overall sentence that is disproportionate to the overall offending and the circumstances of the offender. That the concept of proportionality underpins this principle was made clear by the High Court in its approval[15] of this Court’s approach in R v Knight.[16] In Knight this Court said:[17]
[I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.CJ. in Reg. v. Faulkner , ‘at the end of the day, as one always must, one looks at the totality and asks whether it was too much’.
To similar effect in R v E, AD, Doyle CJ said:[18]
… In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed.
[15] (1988) 166 CLR 59 at 63.
[16] (1981) 26 SASR 573.
[17] (1981) 26 SASR 573 at 576 (Walters, Zelling and Williams JJ).
[18] (2005) 93 SASR 20 at [38]; See also R v Place (2002) 81 SASR 395 at 425-6 (Doyle CJ, Prior, Lander and Martin JJ); R v Randall-Smith and Davi (2008) 100 SASR 326 at [104]-[106] (Gray and Layton JJ).
The discussion in R v Smoker is useful not only for its emphasis upon the role of proportionality in the application of the principle of totality, but also for ensuring that care is taken when seeking to adjust a sentence on account of its “crushing” effect. As Lovell and Hinton JJ explained, the label “crushing” usually connotes no more than that a reduction in an aggregate sentence may be appropriate to ensure proportionality between the aggregate sentence and the overall criminality and circumstances of the offending and the offender. To the extent that the label permits intervention beyond this, that will be a rare occurrence.[19]
[19] R v Smoker [2016] SASCFC 114 at [80]-[85].
While a sentencing judge should always review the final sentence to ensure it is not disproportionate, there will generally be little, if any, scope for the operation of the principle of totality encapsulated in this fourth option if the judge has made the individual sentences concurrent or partially concurrent, or has utilised s 18A to impose a single offence. The use of these sentencing options earlier in the sentencing process should already have ensured, or at the very least have gone a long way towards ensuring, proportionality in the sentence to be imposed.
Having identified the sentencing options available to a sentencing judge in sentencing for multiple offences, it should be emphasised that it is a matter for the sentencing judge to determine how best to ensure proportionality. In any given case, particularly where there is a large number of offences, there may be a number of potential approaches reasonably available to the sentencing judge. The sentencing judge might decide to group the offences in varying ways, and to reflect the concern to ensure proportionality either at the level of individual offences, at the level of a group or groups of offences, in the overall sentence, or, indeed, at more than one stage of the sentencing process. Appellate courts must be astute to ensure that the breadth of the sentencing judge’s discretion in this regard is respected. It will be rare that the selection of one approach, or sentencing structure, over another will of itself involve process error, or error in the sense required by the principles of appellate restraint set out in House v The King.
That said, while it will be rare that there will be a process error by reason of the sentencing judge’s decision to adopt, or not adopt, a particular approach, it will nevertheless remain open to contend that the ultimate sentence is infected by outcome error; that is, to contend that the sentence is manifestly excessive such that it can be inferred that it is infected by error (whether in the application of the principles of concurrency or totality or otherwise) despite that error not being apparent of the face of the sentencing remarks.
Turning to the approach taken in this case, the sentencing judge grouped the offences by victim (with counts 1 and 2 relating to D, and counts 3 and 4 relating to J). His Honour then accumulated the sentences for counts 1 and 2, but in the case of the sentences for counts 3 and 4 reduced the total by six months. Whether this is best regarded as allowing for some modest partial concurrency, or an application of s 18A of the Sentencing Act at this interim stage of the sentencing approach, does not much matter. It is sufficient to note that the judge took some account of the concern with disproportionality at this stage of the sentencing process. The sentencing judge then accumulated the two subtotals. It would appear he did so using (perhaps for a second time) s 18A of the Sentencing Act, given that he ultimately imposed a single sentence. However, whether it was an aspect of his application of s 18A or a decision not to apply any further concurrency, it is plain on the face of the sentencing remarks that the sentencing judge considered, but rejected, the appropriateness of any further reduction to ensure proportionality, holding that “the sentences that relate to your two victims should be accumulated”.
Thus, while the sentencing judge did not expressly apply the principle of totality by having a “last look”, it is plain that his Honour did have regard to the risk of disproportion at two stages of the sentencing process – both when combining the sentences for the individual victims, and then again when combining those two subtotalled sentences and hence in arriving at the ultimate sentence.
In my view, it has not been established that the sentencing judge made either of the process errors alleged in the first ground of appeal. The sentencing judge did not overlook the need to ensure proportionality, whether through an application of the principles of concurrency or totality or otherwise. To the contrary, his Honour expressly had regard to these matters at two stages, both when considering whether to allow any concurrency in grouping the offences by victim, and when arriving at an overall sentence. His Honour allowed some modest concurrency at the former stage, but exercised his discretion not to allow any at the latter stage. It is not to the point that this Court, or some other sentencing judge, might have allowed a greater degree of concurrency at one or both of these points at the sentencing process, or might have made an adjustment for totality at the end of the process. The relevant point in considering whether the sentencing judge made either of the process errors alleged in ground 1 is whether the sentencing judge failed to have regard to a relevant matter, or made an error of principle. That has not been established.
While it may have been open to the sentencing judge to approach or structure the sentence differently, and to have ordered, for example, that the sentences for counts 2 and 3 be made partially concurrent, that does not mean it involved error to not do so. The precise approach or structure behind the sentence ultimately imposed was a matter within the discretion of the sentencing judge. It cannot be said that he was required to approach the matter in the manner contended for by the appellant, or that there was a process error in not doing so. The temporal and causal connection between counts 2 and 3 was not sufficient to require that the sentences for the two offences be approached in that way. To the contrary, the fact that there were two victims is often a sound reason to accumulate sentences for separate counts of sexual offending.[20]
[20] R v Harvey (No 2) [2014] SASCFC 106 at [68]; R v H, GJ [2014] SASCFC 102 at [36].
Turning to the second ground of appeal, I bear in mind the approach to the identification of manifest excess required by the High Court in Hili v The Queen.[21]This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[22] In the context of sentencing for multiple offences, regard must also be had to the need to ensure proportionality in the overall sentence through the application of one or more of the mechanisms outlined above. But ultimately, manifest excess is a conclusion that may not admit of lengthy exposition.[23]
[21] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
[22] R v Morse (1979) 23 SASR 98.
[23] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
The appellant’s focus was, quite properly, upon the overall sentence rather than the notional starting points for the individual offences. That said, it is relevant that each of the notional starting points were, as the respondent conceded, severe. In the context of a sentencing process that commences with notional starting points for multiple offences that are severe, the Court will need to be particularly astute to ensure that there is no overlap in the sentences imposed, and that proportionality has ultimately been achieved in the overall sentence.
In this case the offending was clearly serious. While the appellant’s offending did not involve penetrative conduct, and was thus not of the same order of seriousness as the conduct considered in cases such as R v D,[24] it nevertheless did involve two victims, and occurred against a background of sexual abuse of both of those victims. While the appellant is not to be punished for the matters of background that are not the subject of counts 1 to 4, this background means that the appellant was not entitled to the leniency that might otherwise have been appropriate had the offending been isolated.
[24] R v D (1997) 69 SASR 413. See also R v Chesterman [2017] SASCFC 31.

The offences each involved a gross breach of trust. The appellant was not only in a position of trust, but positively misused that position to assist him in creating the opportunities to offend in the way he did, and in securing the silence of his victims. There is the further aggravating feature so far as counts 1 and 2 are concerned that the victim was intellectually disabled.
On the other hand, there were some significant matters arising out of the appellant’s personal circumstances. These included the appellant’s age and health at the time of sentencing, and the lengthy period of time that had passed since his offending. The former is relevant as it supports the sentencing judge’s conclusion that the appellant would likely find his time in prison harder than a younger and healthier man. The latter is relevant, at least in combination with the contrition demonstrated through his pleas of guilty, and the evidence that the appellant had lived lawfully and indeed demonstrated good character throughout this lengthy period of time. That said, as this Court has previously cautioned,[25] the passage of time and the resumption of a law abiding life should not be given too much weight in a case such as the present. It is not uncommon that offending such as the present does not come to light for a number of years, and that by the time it does come to light the offender has resumed a normal law abiding life.
[25] R v V, AJ [2012] SASCFC 10 at [3].
In my view, the considerations arising out of the appellant’s personal circumstances are relevant not only to the sentences appropriate for the individual offences, but are also suggestive of significant scope for reduction in the ultimate sentence to ensure proportionality.
In my view, even when the gravity of the offending is understood in light of the considerations I have identified above, the individual notional sentences are severe for each individual offence. That is particularly so in relation to the notional starting point of three years six months imprisonment for count 2, bearing in mind that the maximum penalty for this offence was five years imprisonment. It is also so in relation to count 1. In my view, that offending was less serious than counts 3 and 4 and yet the sentencing judge started with the same notional head sentence of two years imprisonment for each. More importantly, in my view, the ultimate sentence imposed by the sentencing judge is disproportionate to the overall criminality and circumstances of the offending and offender. I consider that the overall sentence is outside the range of what was reasonably necessary to achieve the objectives of deterrence, punishment and rehabilitation in this case.
For these reasons, I consider that ground 2 has been made out. I would allow the appeal. It is thus appropriate that this Court exercise the sentencing discretion afresh.
Resentencing
In resentencing the appellant, I would of course have regard to all of the matters canvassed above.
Given the differing discounts applicable in respect of the various offences, I would, like the sentencing judge, start by identifying notional head sentences for each of the offences. I would start with head sentences that are lower than those used by the sentencing judge. I would reduce those starting points by approximately the maxima provided for in s 10C of the Sentencing Act, being 20 per cent for counts 1 and 4, and 40 per cent for counts 2 and 3. In summary:
·    For count 1, I would start with a notional head sentence of 12 months imprisonment, which I would then reduce by approximately 20 per cent to 10 months imprisonment.
·    For count 2, I would start with a notional head sentence of two years six months imprisonment, which I would then reduce by 40 per cent to 18 months imprisonment.
·    For count 3, I would start with a notional head sentence of 18 months imprisonment, which I would then reduce by approximately 40 per cent to 11 months imprisonment.
·    For count 4, I would start with a notional head sentence of 18 months imprisonment, which I would then reduce by approximately 20 per cent to 15 months imprisonment.
In resentencing the appellant, I would then group the offences by victim. However, in so doing I would make the sentences for offences 1 and 2 partially concurrent, giving a combined sentence for these two offences of two years imprisonment. I would also make the sentences for offences 3 and 4 partially concurrent, giving a combined sentence for these two offences of one year nine months imprisonment.
In proceeding in this way, I accept that it is difficult to characterise the offending against each victim as involving a single course of conduct or single excursion into criminality. However, for the reasons set out earlier, I do not consider the scope for concurrency to be confined to such circumstances. Having regard to the broader rationale for concurrency (being a rationale founded in considerations similar to those underpinning the principle of totality, and hence including the need to ensure the removal of overlap and the achievement of proportionality), I consider it appropriate to reflect a measure of concurrency in the sentences for the offending against each of the two victims.
In my view, while reasonable minds may differ, I consider it preferable to approach the matter in this way in the circumstances of this case, rather than making the sentences for counts 2 and 3 partially concurrent.
I would then utilise s 18A of the Sentencing Act to combine these sentences for the offending in respect of each victim, giving an overall single sentence of three years nine months imprisonment. In so doing, I have conducted a final review to ensure that the ultimate sentence is proportionate to the overall criminality and circumstances of the offending and offender. In my view, having made the earlier adjustments for concurrency indicated above, the overall sentence is proportionate and appropriate. I do not consider that any further adjustment is required.
I would thus impose a sentence of three years nine months imprisonment. I would fix a non-parole period of two years. Given the seriousness of the offending and the importance of general deterrence, I would not suspend the sentence. It was not suggested that this Court should consider ordering that the sentence be served on home detention, but for similar reasons I also do not consider that this would be appropriate.
Orders
I would grant permission to appeal on ground 1. I would allow the appeal.
I would set aside the sentence imposed below, and resentence the appellant to three years nine months imprisonment. I would fix a non-parole period of two years. I would not suspend this sentence or order that it be served on home detention. I would order that the sentence commence on 7 April 2016. I would make intervention orders in the same terms as those made by the sentencing judge.