R v Walkuski - [2010] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WALKUSKI
[2010] SASC 146
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)
25 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appellant pleaded guilty to six counts of rape with respect to one complainant and one count of aggravated serious criminal trespass and two counts of false imprisonment committed against a second complainant - sentences to be served cumulatively - appellant sentenced to 17 years' imprisonment with a non-parole period of 13 years - whether sentence imposed manifestly excessive - whether Judge erred in failing to give adequate weight to the appellant's ill-health - whether Judge erred in declining to reduce the sentence on the basis of totality - whether Judge erred in failing to exercise his discretion to impose one sentence in relation to the offences - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 48, s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Nixon (1993) 66 A Crim R 83; Markarian v The Queen (2005) 228 CLR 357; R v E, AD (2005) 93 SASR 20; R v Rossi (1988) 142 LSJS 451, applied.
R v Randall-Smith and Davi (2008) 100 SASR 326; Postiglione v The Queen (1997) 189 CLR 295, discussed.
R v Skrjanc (1994) 71 A Crim R 347; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Caplikas (2002) 134 A Crim R 544; R v Nylander (2003) 228 LSJS 24; R v Stanbrook (1993) 65 A Crim R 107; R v Bruce and Hollick [1998] SASC 6831; Sutherland v The Queen (1994) 76 A Crim R 447; R v Smith (1987) 44 SASR 587; R v Hunter (1984) 36 SASR 101; R v Place (2002) 81 SASR 395, considered.

R v WALKUSKI
[2010] SASC 146
Court of Criminal Appeal: Doyle CJ, Sulan and Layton JJ

DOYLE CJ: I have had the advantage of considering the reasons of Sulan J. He has summarised the circumstances of the offences, the matters relevant to penalty, and the submissions on appeal. I adopt his reasons in that respect.
I agree with Sulan J, and for the reasons that he gives, that when the three separate sentences are considered individually, the sentences imposed are within an appropriate range for offending of the kind in question. I need say no more about that.
I turn to the question of whether the principle of totality as it is called requires a reduction in the sentences.
When aggregated, the sentences amount to 17 years imprisonment, which on any view is a lengthy sentence. Because of the age of the appellant, and because of his state of health, there is a risk that he will die before he is eligible for release on parole. These are the two matters which require consideration in relation to the principle of totality.
The concept of totality, as an aspect of sentencing, is well established. In R v Place [2002] SASC 101; (2002) 81 SASR 395 at [84]-[90] this Court reviewed the authorities on the point, and in particular observations made by the High Court in Mill v The Queen (1988) 166 CLR 59 and in Postiglione v The Queen (1997) 189 CLR 295. There is no need to repeat what the Court said there, because the concept is well established. In R v E, AD [2005] SASC 332; (2005) 93 SASR 20 I endeavoured to summarise the position at [37]-[38]:
[37]The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that "the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved": Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J). The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so "crushing" as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione (at 308). I refer also to the remarks of Kirby J on this point in Postiglione (at 340-341). As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
[38]In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. 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. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
It can also be said that the concept of totality reflects two particular considerations. One of them is proportionality. The sentence must bear an appropriate proportion to the overall criminality involved. The other is mercy. As King CJ said in R v Rossi (1988) 142 LSJS 451 at 453, the concept of totality operates:
“…..where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention of the Court by way of reducing the total effect….”
In light of these statements of principle, I turn to the particular case.
As I commented in R v E, AD, sometimes serious crimes call for a sentence that is crushing in its effect. It is not appropriate to reduce a sentence simply because, in a general sense, it can be said that to the offender the sentence will be crushing. The concept of a crushing sentence reflects the two considerations already referred to, proportionality and circumstances calling for merciful intervention by the Court.
In the present case the offences involved serious criminality, with significant adverse effects on the victims. To my mind, it is not the case that when aggregated the sentences exceed what is an appropriate measure of the total criminality involved. Indeed, the sentences are moderate.
But does the combined length of the sentences, coupled with a consideration of the appellant’s age and state of health, call for merciful intervention by the Court? There can be no precision in answering a question like that. I acknowledge the force of the points made by Sulan J in this regard. But I am not persuaded that the sentencing Judge erred in coming to the contrary conclusion. In fact, I agree with the sentencing Judge. The appellant’s state of health, the impact of imprisonment on him in that state of health, and the risk that he will not live long enough to become eligible for parole, require very careful consideration. But “merciful intervention” cannot depend entirely upon considerations personal to the offender. Another way of putting things is to say that the concept of totality must be applied along with other relevant sentencing principles, even though considerations of totality operate as a final “check”.
In my opinion, the sentencing Judge was not in error.
Accordingly, I would dismiss the appeal.
SULAN J: This is an appeal against sentence.
The appellant pleaded guilty to six counts of rape of Ms D, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). These offences were committed on the same day in 2001.
The appellant also pleaded guilty to aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the CLCA, and two counts of false imprisonment, contrary to Common Law against the second complainant, Ms P. The aggravated serious criminal trespass was committed on 27 December 2007. The first count of false imprisonment was committed between 26 December 2007 and 29 December 2007, and the second count was committed between 17 February 2008 and 20 February 2008. The victim, Ms P, had been in a relationship with the appellant over a number of years.
The maximum penalty for each of the offences of rape and the offence of aggravated serious criminal trespass in a place of residence is imprisonment for life. The maximum penalty for the offence of false imprisonment is at large.
On 15 May 2009, the appellant was sentenced by a District Court Judge to a total of 17 years’ imprisonment. The Judge imposed a non-parole period of 13 years’ imprisonment. In arriving at the total sentence, the Judge imposed separate cumulative sentences. I will refer to the detail of the Judge’s sentence later in these reasons.
Grounds of appeal
The grounds of appeal are:
1.that the sentence imposed is manifestly excessive.
2.that the Judge erred in failing to give adequate weight to the appellant’s ill‑health.
3.that the Judge erred in declining to reduce the total sentence when considering the principle of totality; and
4.that the Judge erred in failing to exercise his discretion to impose one sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) in relation to the offences.
Permission to appeal was granted in respect of grounds 1 and 2 and refused on the other two grounds. The appellant seeks permission to appeal on grounds 3 and 4.
The circumstances of the offences
The circumstances surrounding the six counts of rape are that in September 2002, the police conducted a search of the appellant’s home in order to locate a video tape unrelated to this offending. In conducting the search, the police found a video tape containing footage of a sleeping, or unconscious, woman, Ms D, in a state of undress. The tape shows the appellant committing six incidents of rape by the insertion of his fingers and various objects into the vagina of the complainant. There were six separate identifiable acts of penetration of Ms D’s vagina. It transpired that the acts had occurred in the latter half of 2001. The complainant did not consent to these acts, or the taking of the video, and knew nothing of the video until it was shown to her in September 2002.
Initially, the appellant pleaded not guilty to the six counts of rape. Shortly before the trial was due to commence, he received a serious head injury in an accident. The appellant was said to have lost his memory of the relevant events. The appellant was found fit to plead. He pleaded guilty. Subsequently, he claimed his memory had returned, and he sought to change his plea to not guilty. The appellant claimed that he had regained sufficient memory to say that he believed that Ms D consented to the various acts of sexual intercourse. The Judge heard evidence from Ms D and the appellant. The Judge rejected the appellant’s evidence about his loss of memory and refused the application.
The prior relationship between the appellant and the second complainant, Ms P, is complex. The appellant first met the complainant in 1995 and they formed a relationship a few years later which lasted for approximately one year. The relationship was later renewed in about the middle of 2002 and continued until about the beginning of December 2007. After the relationship had finally broken down, the appellant remained obsessed with the complainant. The appellant was jealous of the attention she received from other men. He spied upon her, keeping a record of her movements in his diary.
On 27 December 2007, the appellant entered Ms P’s property whilst she and her children were asleep. The appellant entered the bedroom, holding a hunting knife, and told her that she had ruined his life and that he was going to ruin hers. The appellant then handcuffed Ms P, tied her to the bed in the room and placed tape over her mouth in order to prevent her from calling out to her children. The appellant harassed her for a few hours, sometimes with a knife. He then took her outside to his car where he chained her to the door and drove to a number of locations on the Yorke Peninsula. In the course of driving and detaining Ms P, the appellant threatened to kill himself and Ms P. He invited her to choose the method of her death. Ms P managed to talk the appellant out of any of these plans or ideas and convinced the appellant to return her to her home.
On 18 February 2008, the appellant followed Ms P in his car and had someone else block her way at an intersection. In the confusion, the appellant appeared at Ms P’s driver’s side door, punched her in the head, pushed her over into the passenger’s side, and drove off. Ms P’s six-year-old son was also in the car at the time. Later, the appellant swapped into his car and the child was left behind with unfamiliar members of the public. The appellant then drove Ms P to a property in Swan Reach, where he had been secretly living in a shed for some time. The appellant detained Ms P in this location against her will for about 40 hours. The appellant made threats that he would shoot Ms P with a crossbow if she tried to escape, told her that he had a gun hidden nearby, and threatened to handcuff her to the bed. The appellant again spoke of killing himself and Ms P. He had a video camera for the purpose of recording messages of farewell to various members of his family. The appellant had given much thought and planning into the abduction and false imprisonment of Ms P. He had prepared the shed in anticipation, including stocking food and clothing he knew that Ms P liked. These events ended when the police raided the property. During the ensuing police chase, the appellant released the complainant before attempting to flee in his car. During his attempts to avoid the police, his car left the road and rolled over. The appellant sustained extensive head and body injuries for which he was treated at the Royal Adelaide Hospital.
The offences had a significant impact on Ms P and her children. At times, the complainant feared that she was going to be killed and not see her children again. Ms P has subsequently been diagnosed with a post‑traumatic stress disorder. She has consulted a psychiatrist for that condition and depression. She no longer feels safe and has vivid flashbacks and nightmares of the events. Her trauma is ongoing.
The appellant’s personal circumstances
The appellant is 58 years of age and is in poor physical and mental health. In 2004, he sustained a closed head injury from a workplace accident, which was the beginning of a significant depressive illness. The appellant has a chronic abdominal wound sinus involving a connection from the bowel to the external abdominal wall, which was caused by previous complications involving a hernia operation. He is required to wear a collection bag for this condition. Further surgery is unlikely to assist him. The appellant’s poor health will make the time that he spends in custody difficult.
As to the appellant’s mental health, he has been given a primary diagnosis of a mixed personality disorder with antisocial and borderline traits. An antisocial personality disorder represents a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability, anger, failure to sustain consistent work, and a childhood history of conduct disorder. A borderline personality disorder is a long-standing maladaptive pattern of behaving and feeling, with associated marked feelings of chronic depression alternating with rage, disturbance of self-image and identity, disturbance in judgment, and difficulty establishing satisfying relationships with other people.
The appellant’s ongoing depressive and anxiety symptoms are said to represent a previous diagnosis of Chronic Adjustment Disorder, with mixed anxiety and depressed mood. The appellant has an extensive history of criminal behaviour, commencing when he was about 13 years of age. Most of his offending is for offences of dishonesty.
The Judge’s sentencing remarks
In dealing with the rape charges, the sentencing Judge referred to the appellant’s evidence when he sought to change his plea from one of guilty to not guilty. The sentencing Judge also referred to the evidence of Ms D. He concluded that the appellant was a most unsatisfactory witness, and that Ms D gave an accurate and truthful account of the events. The sentencing Judge was satisfied beyond reasonable doubt that Ms D was unaware of the appellant’s conduct until she was shown the video by the police in 2002.
The sentencing Judge commented upon the effect that the appellant’s conduct had upon Ms D, who is now severely traumatised by the events depicted on the video, and suffers from nightmares and depression.
The sentencing Judge referred to the appellant’s prior history of offending. He had regard to medical and psychiatric reports relating to the appellant’s physical and mental condition. He concluded that he was very guarded about the appellant’s prospects of rehabilitation.
The sentencing Judge said:
I also need to take into account the need for personal and general deterrence. Your conduct in committing serious offences shows you need to be deterred. Others who may be minded to commit offences like you need to be deterred by tough sentences from the Court. Women are not objects to be owned or possessed by men who are obsessed or jealous. Women are entitled to full protection of the law when relationships break down.
The sentencing Judge imposed the following sentences. As to the rape charges, he imposed one single sentence pursuant to s 18A of the CLSA of six years’ imprisonment. He declined to reduce the sentence on account of the appellant’s plea of guilty, because the victim was required to give evidence upon the application by the appellant to change his plea. The sentencing Judge was entitled to have regard to those matters, and was entitled to refuse to reduce the sentence on account of the plea of guilty. The sentence of six years’ imprisonment for the rape offences was a moderate sentence.
As to the offence of serious criminal trespass in a place of residence and false imprisonment committed on 27 December 2007, the sentencing Judge imposed one sentence pursuant to s 18A of the CLSA of four years’ imprisonment, having reduced it from six years’ imprisonment on account of the plea of guilty. That sentence was ordered to be cumulative upon the rape sentence.
As to the offence of unlawful imprisonment committed on 18 February 2008, the sentencing Judge imposed a sentence of seven years’ imprisonment, reduced from nine years’ imprisonment on account of the plea of guilty, to be served cumulatively upon the two other sentences. The total sentence, therefore, amounted to 17 years’ imprisonment.

Having arrived at the total sentence, the Judge stated:
I now consider the question of totality and decline to reduce those sentences. I impose a 13 year non-parole period to date from 22 February 2008.
Turning to the grounds of appeal.
The appeal
Ground 4
It is convenient, first, to deal with the appellant’s contention that the sentencing Judge erred in failing to impose one sentence pursuant to s 18A of the CLSA. That section 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.
Counsel for the appellant submits that the sentencing Judge failed to exercise his discretion in imposing one sentence under s 18A of the CLSA in relation to the offences of December 2007 and February 2008. In the alternative, counsel submits that the sentencing Judge failed to consider whether the two sentences should run concurrently. Counsel for the appellant relies on the proximity in time and the nature of the two sets of offences. The appellant further submits that, although the offences appear on their face to be two separate sets of offending, there was no corresponding break in relation to the commission of the December 2007 offending as against the planning and preparation of the February 2008 offending.
Counsel for the Crown submits that s 18A of the CLSA creates an unfettered statutory discretion whereby courts are provided with another alternative in formulating a multiple sentencing package.[1] Counsel for the respondent concedes that the sentencing Judge could have chosen to impose a single sentence for all three offences pursuant to s 18A of the CLCA. However, counsel submits that the approach taken was properly within the discretion of the sentencing Judge, given the effluxion of time between the offences in December 2007 and the offences in February 2008.
[1] Nixon v R (1993) 66 A Crim R 83, 85; Skrjanc v R (1994) 71 A Crim R 347,353.
The nature of the statutory discretion under s 18A was considered in R v Nixon.[2]The sentencing Judge sentenced a defendant who had pleaded guilty to three counts of armed robbery, committed whilst the defendant was on parole. The sentencing Judge imposed three separate sentences for the armed robbery of seven years’ imprisonment on each count to be served cumulatively. Those sentences were to be served cumulatively upon a period of 18 months which was imposed for breaches of suspended sentences.
[2] (1993) 66 A Crim R 83.
The three armed robberies were committed on entirely separate dates and at different places. On each occasion, the premises were banks and, on each occasion, a pistol was used. There was approximately a one-month period between each offence. Legoe J considered whether the sentencing Judge was correct in ordering the sentence to be served cumulatively. He concluded that it was entirely within the discretion of the sentencing Judge to structure the sentences in the way in which he did.
Legoe J referred to s 18A of the CLSA. He said:[3]
This section came into operation on 30 September 1992. The section creates a statutory discretion whereby courts are provided with another alternative in formulating a multiple sentencing package. It is a discretion which is unfettered. At the same time, it is not a substitution for nor does it replace, the existing law and practice relating to the structure of multiple sentences whether they be concurrent or cumulative for the purpose of arriving at a total sentence. In my opinion, it is a very useful power which should be used where the circumstances for using the section do not conflict with other well-established principles of sentencing practice. It seems to me that the section is one that can be used by a Court of Criminal Appeal where the multiple sentences are properly concurrent in accordance with the above principles. For the purpose of reviewing the sentences afresh this Court can fix one sentence for all rather than allocating different periods for the concurrent sentences.
[3] Ibid, 85-6.
In R v Skrjanc,[4] Legoe J with whom Mohr and Duggan JJ agreed, reaffirmed the statement he made in Nixon’s case and, in particular, concluded that whether or not a judge imposes one sentence pursuant to s 18A of the CLSA is a matter of the judge exercising an unfettered discretion.
[4] (1994) 71 A Crim R 347.
Since the enactment of s 18A, there have been numerous decisions of this Court as to how a judge might apply s 18A and the process which should be followed when imposing one overall sentence for numerous offending.
In determining a single sentence pursuant to s 18A, a judge must first consider the sentence which would be imposed if separate sentences were to be imposed in respect of each offence. However, the authorities are clear that a sentencing judge has a wide discretion as to the manner in which the judge arrives at a final sentence in the case of multiple offending. Ultimately, there is no prescribed method that must be followed. The choice of using s 18A as the method of arriving at a final sentence is discretionary, and cannot, of itself, amount to an error of law; and, if no error of law can be shown, an inquiry on an appeal against sentence will turn on a consideration of whether the final sentence is manifestly excessive.[5]
[5] See R v Major (1998) 70 SASR 488, 490; R v Symonds [1999] SASC 217, [21], [22]; R v Nylander (2003) 228 LSJS 24; R v Caplikas (2002) 134 A Crim R 544.
In R v Markarian,[6] Gleeson CJ, Gummow, Hayne and Callinan JJ observed that, while courts should be transparent in their reasoning when sentencing, the process of arriving at a final sentence is not an exercise in mathematics. What is required is that the court must take into account all the relevant considerations in forming the final sentence.
[6] (2005) 228 CLR 357.
In my view, it cannot be said that the sentencing Judge fell into error in refusing to exercise his discretion to impose one sentence pursuant to s 18A of the CLSA. The sentencing Judge could have approached his task in that way, but it was within his discretion to adopt the approach he chose in this case.
I would refuse permission to appeal.
Grounds 1, 2 and 3
Submissions of counsel
Counsel for the appellant submits that the sentence imposed is, in all the circumstances, manifestly excessive.
In relation to the counts of rape, counsel submits that a head sentence of six years is manifestly excessive, given a number of circumstances. Although the appellant had a large number of prior convictions, he had not committed serious offences since 1991. Further, the appellant had not committed offences of this nature previously. The offences of rape occurred over one period. Although video recording the acts is an aggravating factor, there was no dissemination of the material beyond the appellant. The offences of rape were digital and included the use of objects. The appellant did not contribute to the victim’s sleeping or unconscious state, and no violence was used in the commission of the offence.
In relation to the offences of 27 December 2007 and 18 February 2008, the appellant’s counsel submits that the total starting point of 15 years, reduced to 11 years on account of guilty pleas, was manifestly excessive, having regard to the following matters. The offences occurred shortly after a long-term relationship between the appellant and the complainant had broken down. The planning required in relation to the February 2008 offending indicates a continuous course of activity commencing at the time of, or shortly after, the December 2007 offending. The sentence imposed did not reflect the nexus between the offending of December 2007 and February 2008.
Counsel for the Crown submits that the sentences imposed were well within the sentencing discretion of the sentencing Judge, having regard to the circumstances.
As to the offences of rape, counsel submits that the sentence was appropriate, having regard to the following factors. The appellant took advantage of the complainant, who was unconscious, and made a video tape of the rapes as they occurred. The offending was not mitigated by the fact that the victim was unconscious at the time.[7] The complainant was severely traumatised by the offences. Although the appellant pleaded guilty, an application was made to withdraw the plea and the appellant failed to demonstrate any true remorse or contrition.
[7] R v Stanbrook (1993) 65 A Crim R 107.
As to the offences of aggravated serious criminal trespass in a place of residence and the two counts of false imprisonment, counsel submits that the sentence was appropriate having regard to a number of factors, including that the offending was premeditated and involved extensive planning. On both occasions, the appellant detained the complainant for many hours and physically restrained her for periods of time. The offences were aggravated by the use of violence, repeated threats to harm the complainant with a knife and cross-bow, and repeated threats to kill her. The offences were committed whilst the appellant was on bail for offences of rape. The trauma suffered by the complainant and her children was extensive.
The second ground of appeal relates to the sentencing Judge failing to give appropriate weight to matters personal to the appellant, including his ill-health, his age and the effect that his imprisonment would have on others. In particular, the non-parole period of 13 years is a sentence which, when regard is given to the appellant’s age and ill-health, would carry a higher than usual risk that the appellant may not live to see the expiry of the non-parole period.
Counsel for the appellant further submits that the sentencing Judge made an error in placing too much weight on both personal and general deterrence.
As to appeal ground 3, counsel for the appellant submits that the sentencing Judge made an error in declining to reduce the total sentence of 17 years when considering the principle of totality. It is submitted that the sentence, having regard to the personal circumstances of the appellant, in particular his advanced age and ill-health, would be crushing. Although the appellant will receive treatment in prison, he suffers a great deal of pain and is at risk of complications. There is, therefore, a substantial risk that the appellant would not complete the non-parole period. It is contended that those health problems, in combination with a lengthy sentence, should lead the Court to question whether or not the sentence imposed is crushing.
Counsel for the Crown submits that people who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise.[8]
[8] R v Bruce and Hollick [1998] SASC 6831, [37]; R v Rossi (1998) 142 LSJS 451, 453.
She submits that if a sentencing Judge arrives at a sentence without determining the sentence that each offence will attract separately, the Judge will necessarily have regard to the total period of imprisonment that is appropriate and that no further reduction under the totality principle would usually be called for.[9] Therefore, it was significant that the sentencing Judge did not impose a separate sentence for each of the nine offences committed.
[9] R v E, AD (2005) 93 SASR 20, 36.
With respect to the effect of the appellant’s ill-health on the totality principle, it is submitted that the learned sentencing Judge was not obliged to reduce the sentence. Counsel submits that the health of the appellant was taken into account by the sentencing Judge in imposing the head sentence of 17 years, and in the subsequent fixing of the 13 year non-parole period.
Counsel for the Crown argues that, whilst the authorities demonstrate that the physical and mental condition of a defendant are relevant to deciding the length of sentence, it is merely one factor to be taken into account, together with other factors.[10] She submits that ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s ill-health.[11]
[10] Sutherland v The Queen (1994) 76 A Crim R 447, 451.
[11] R v Smith (1987) 44 SASR 587, 589.
Counsel further submits that the nature and extent of the appellant’s ill‑health was appreciated by the sentencing Judge in fixing the non-parole period. She submits that the sentencing remarks reveal a detailed consideration of the appellant’s physical and mental condition. The Judge took into account that, whilst the appellant is in gaol, the authorities would need to take precautions to ensure he did not sustain an infection. The Judge acknowledged that the time spent in custody would be difficult due to the appellant’s age and physical illness. Counsel submits that, bearing in mind the seriousness of the offending and the fact that the sentencing Judge was very guarded about the appellant’s prospect of rehabilitation, the non-parole period of 75 per cent of the head sentence was not manifestly excessive and well within the discretion of the sentencing Judge.
In considering whether the final sentence imposed would be crushing on the appellant, it was conceded by counsel for the Crown that the total sentence of 17 years was severe, but not crushing, given the circumstances of the appellant.
Were the sentences manifestly excessive?
I consider that the individual sentences imposed are not outside the range of sentences for this offending. The offences of rape were aggravated. The appellant took advantage of Ms D, who was asleep or unconscious. He repeated degrading acts upon her whilst filming them. The effect upon Ms D has been long-term, and she continues to suffer psychological problems from the appellant’s conduct.
The two offences of false imprisonment are serious invasions of Ms P’s liberty. The appellant invaded Ms P’s home, took her away from her children and held her for some hours in the most frightening circumstances. The sentence for that offending is well within the range of sentences to be expected for this type of offending. The second instance of false imprisonment was aggravated in a number of respects. First, it was the second occasion upon which the appellant took Ms P against her will. Secondly, he held her in custody for approximately 40 hours. Thirdly, he threatened her and acted violently towards her. Fourthly, the offence was planned and premeditated. The experience was terrifying, both for her and her family. The sentence cannot, therefore, be said to be manifestly excessive when considered in isolation of the other sentences.
As to the submission that the sentencing Judge failed to give adequate weight to the appellant’s ill-health, that should be considered together with the issue of totality.
Totality
The sentencing Judge stated that he declined to reduce the total head sentence of 17 years, having regard to the principle of totality. He did not indicate the reason for arriving at that conclusion. It is not a requirement that sentencing judges give detailed reasons or a detailed analysis of why they act or decline to act in a particular way. Nevertheless, in concluding that no reduction should be made on the ground of totality, it would have been helpful if the Judge had indicated why he considered that the sentence was not crushing.
I consider that the total head sentence of 17 years for a person aged 58 years of age and who is undisputedly suffering from chronic ill-health is a very long sentence. The Judge acknowledged and accepted that the appellant suffered from ill-health, and that a non-parole period required the appellant to remain in custody until he reached 70 years of age. The combination of the appellant’s age and ill-health has the result that whatever years of life remain for him, the majority of his remaining life will be spent in custody.[12] In the case of the appellant, each year he spends in custody will be a substantial portion of the rest of his life. Once released, it is likely that the appellant will be suffering chronic health problems and his enjoyment of life will be much diminished. This is but one factor that the Court considers in arriving at the appropriate sentence. Counsel for the Crown acknowledged that this was a very long sentence for this individual in these circumstances.
[12] R v Hunter (1984) 36 SASR 101.
In R v Randall-Smith and Davi,[13] Gray and Layton JJ considered the principle of totality. They referred with approval to the well-known text of Thomas,[14] in which the learned author summarises the principle:[15]
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”.
[13] (2008) 100 SASR 326.
[14] Thomas, Principles of Sentencing 1979, (2^nd ed) at 56.
[15] R v Randall-Smith and Davi (2008) 100 SASR 326, 353-54 [103].
The High Court considered the principle of totality in Postiglione v The Queen. McHugh J said:[16]
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence. (Citations omitted)
[16] (1997) 189 CLR 295, 308.
Dawson and Gaudron JJ stated that the totality principle serves to ensure that an offender is not subjected to a “crushing sentence”.[17] Kirby J described the totality principle as having a dual aspect, which requires a sentencer who has passed a series of sentences, each of which has been properly calculated in relation to the offences 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 sentence is ‘just and appropriate’.[18] Kirby J explained that the totality principle requires a sentencing judge, who orders an offender to serve consecutive sentences for multiple offences, to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender and is, in aggregate, ‘just and appropriate’. He observed that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects. He concluded that the determination of whether a sentence in its totality is not ‘just and appropriate’ will be more readily reached where the judge comes to the conclusion that the outcome would be “crushing” and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. He stated that, whilst adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed, this is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders.
[17] Ibid, 304.
[18] Ibid.

In R v Place,[19] Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed, referred with approval to the principle as requiring a sentencing judge, having gone through the process and arrived at a sentence, to step back and ask whether, in all the circumstances, the overall sentence is too much. The principle enables the court to mitigate what strict justice would otherwise dictate where the total effect of the sentence is so crushing on the defendant as to call for merciful intervention.[20]
[19] (2002) 81 SASR 395.
[20] See R v Rossi (1988) 142 LSJS 451, 453.
In my view, the overall sentence of 17 years’ imprisonment with a non‑parole period of 13 years’ imprisonment is crushing to this appellant. I have reached my conclusion, having regard to the appellant’s age and, in particular, his poor physical health. It is acknowledged that any time that the appellant spends in gaol will be harder for him than with the average prisoner. The appellant is at risk of sustaining infection. The appellant’s future prospects are bleak. His quality of life is extremely poor. Further surgical intervention is unlikely to assist him, and is not recommended. He will suffer adverse health effects from his incarceration.
The sentencing Judge referred to totality, but failed to adequately have regard to the principle. This is a case where the overall sentence, in my view, is crushing.
I grant permission to appeal on ground 3, and I would allow the appeal on that ground. I would dismiss the appeal on grounds 1 and 2.
Conclusion and orders
I would set aside the sentences of six years’ imprisonment for six counts of rape committed in 2001, four years’ imprisonment for the offences of serious criminal trespass and false imprisonment committed between 26 December 2007 and 29 December 2007, and seven years’ imprisonment for the further offence of false imprisonment committed between 17 and 20 February 2008.
In resentencing the appellant, pursuant to s 18A of the CLSA, I would impose one sentence for all the offences of 13 years’ imprisonment, and I would impose a non-parole period of nine years’ imprisonment.
LAYTON J: I have had the opportunity of reading the reasons of decision of Sulan J who described the circumstances of the offences. In short the appellant was sentenced for nine offences in respect of three types of offending:
Six counts of rape committed on one occasion in the period between 1 July 2001 and 1 December 2001;
Aggravated Serious Criminal Trespass in a Place of Residence committed on 27 December 2007 and also False Imprisonment committed between 26 December 2007 and 29 December 2007; and
False imprisonment committed between 17 February 2008 and 20 February 2008.
The maximum penalty for rape is imprisonment for life; for Aggravated Serious Criminal Trespass in a Place of Residence – imprisonment for life; and for False Imprisonment pursuant to common law there is no prescribed maximum penalty.
The learned sentencing Judge imposed a sentence of six years imprisonment in respect of the six counts of rape on the one occasion. A sentence of six years imprisonment, reduced to four years, was imposed in relation to the Aggravated Serious Criminal Trespass in a Place of Residence committed in December 2007. A sentence of nine years reduced to seven years was imposed in relation to the second False Imprisonment count committed in February 2008. The Court directed the three sentences to be cumulative and the total head sentence became 17 years imprisonment and a non-parole period of 13 years was fixed.
I respectfully agree with Doyle CJ and Sulan J, that when these separate sentences are considered on an individual basis, they are within the appropriate range for that offending for the reasons given by Sulan J. In so concluding, I highlight the following.
With regard to the six counts of rape, the serious features were that the appellant sexually abused the complainant when she was in a sleeping or unconscious state. He not only raped her using a finger or objects, but he also recorded this on a video and made a copy of that video. These videos were not found until some time after the event when the appellant’s place of residence was searched by reason of other circumstances. The first knowledge that the victim had of the rapes was when she was told about the existence of a video and was then required to view the video for the purposes of the prosecution of the appellant.
It was, therefore, serious criminal offending. In sentencing the appellant, deterrence is an important consideration. General deterrence is required as part of a need to deter others who may seek to take sexual advantage of drunk, sleeping or unconscious women, The accused has expressed no remorse for his offending and indeed the complainant was compelled to give evidence before the appellant capitulated and entered the plea of guilty. Clearly specific deterrence is a relevant factor in sentencing him. In my view therefore the sentence imposed in relation to the offences of rape was apposite.
In respect of the counts of Aggravated Serious Criminal Trespass in a Place of Residence and False Imprisonment committed in December 2007 as well as the further offence of False Imprisonment committed in February 2008, the appellant’s major argument was that the learned sentencing Judge had failed to take into account the nexus between the offending in December 2007 and February 2008 in concluding that four years would apply for the 2007 offending and seven years to the 2008 offending.
In respect of the offending in December 2007, the appellant, after a break down in the relationship between himself and the complainant, turned up at her home uninvited. He entered and threatened her with a knife. She was handcuffed, tied up and tape was placed over her mouth. She was harassed for a number of hours in her own home where her two children also lived. She was then forced to leave the home leaving the two young children alone and unattended. She was driven to various locations, threats were made to kill her. She was also chained to the door of his car. The complainant was finally able to convince the appellant to take her home. She was held against her will for 12 hours.
This offending had occurred at a time when he was on bail for offences of rape.
After this offending, the appellant remained on bail and then over a period of six weeks, stalked the complainant. He kept records of her movements and went to her house. After significant planning, on 18 February 2008 when she was driving her car with her young son, he blocked off her car, assaulted her and pulled her out. Other people with him who were not able be identified by the complainant, took charge of the child. The complainant was then taken to a shed on a remote property at Swan Reach. The shed contained selected items of her clothing and food which demonstrated the appellant’s level of planning and premeditation. The complainant was kept there for some 40 hours during which time the appellant threatened to kill both her and himself, he threatened to use a crossbow and a gun, he also threatened to use acid. Finally her imprisonment ceased after a police siege.
The complainant’s victim impact statement indicates significant trauma and distress suffered by her but in particular by her children as a consequence of the appellant’s behaviour.
It was indeed very serious offending and the sentences indicated by the learned sentencing Judge for the offending were apposite. It was well within the exercise of his discretion not to aggregate the two sets of offending pursuant to Section 18A, and not to make the sentences concurrent.
The remaining issue was then that of totality. I have had the advantage of also considering the reasons of the Chief Justice both with regard to the concept of totality at law as well as his observations in respect of its application to the offending in this case. I respectfully agree with the comments of the Chief Justice, in particular the extent to which account was required to be taken of the appellant’s state of health and the impact of imprisonment upon him. I conclude that there was no error by the sentencing Judge. I would therefore dismiss the appeal.