R v Waugh - [2005] SASC 470

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAUGH
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
14 December 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCES ON TWO OR MORE COUNTS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against conviction - appellant pleaded guilty to multiple offences including theft and illegal use of three motor vehicles - whether judge erred in imposing convictions for theft and illegal use of the same vehicle - whether the elements of one offence were wholly included in the other - whether the particular circumstances of the case made it impermissible as a matter of law to convict appellant for both illegal use and theft of the same motor vehicle.
Held that as in each case the conduct relied upon for the offence of theft was different from the conduct relied upon for the offence of illegal use it could not be concluded that the elements of one offence were wholly included in the elements of the other nor that the elements of illegal use and theft of a motor vehicle were the same - appeal against conviction dismissed.
Appeal against sentence - whether sentence manifestly excessive - whether errors in the application of the totality principle, in the use of s 18A of Criminal Law (Sentencing) Act 1988, in taking account of a period served in custody prior to sentencing and in the manner of fixation of the non-parole period - where sentence imposed it must be served cumulatively upon any unserved portion of a previous sentence in respect of which appellant was on parole - principle of totality ordinarily has no application where a single sentence for multiple offences is imposed pursuant to s 18A - necessity for sentencing judge to provide adequate explanation for sentence imposed - appeal allowed and sentences of trial judge set aside - pursuant to s 18A of Criminal Law (Sentencing) Act new term of sentence imposed together with new non-parole period.
Criminal Law Consolidation Act 1935 s 29, s 86A, s 130, s 134, s144; Correctional Services Act 1986 s 74, s 75; Criminal Law (Sentencing) Act 1988 s 9, s 13, s 18A, s 32; Road Traffic Act 1961 s 46, s 168, referred to.
R v De Kuyper (1948) SASR 108; R v Rossi (1988) 142 LSJS 451; R v Bennett [2005] SASC 55; R v B, RWK [2005] SASC 84; (2005) 91 SASR 200; R v Kench [2005] SASC 85; (2005) 152 A Crim R 294; R v E, AD [2005] SASC 332; R v S, KW [2005] SASC 423; R v Major (1998) 70 SASR 488; R v Gale [1999] SASC 309; (1999) 74 SASR 235; R v Tu [2001] SASC 395; (2001) 216 LSJS 297; R v Symonds [1999] SASC 217; R v Proom [2003] SASC 88; (2003) 85 SASR 120, applied.
Pearce v The Queen (1998) 194 CLR 610; DAT v Police [2001] SASC 219; (2002) 83 SASR 237; Rucioch v Police [2004] SASC 127; (2004) 88 SASR 326; R v Miller [2000] SASC 16; (2000) 76 SASR 151, distinguished.
R v Becker [2005] SASC 186; (2005) 91 SASR 498, considered.

R v WAUGH
[2005] SASC 470
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: I agree with the orders proposed by White J in relation to the appeal against conviction and the appeal against sentence. I agree with the reasons that he gives for making those orders. There is nothing that I wish to add.
SULAN J: I would dismiss the appeal against conviction. I would allow the appeal against sentence, and agree that the sentences of the judge be set aside. I agree with the sentence proposed by White J and with the orders that he proposes, for the reasons given by White J.

WHITE J: This is an appeal against conviction and sentence.
On 23 May 2004 the appellant engaged in a course of conduct involving theft and the illegal use of, or interference with, motor vehicles. When the police moved to apprehend him, the appellant sought to elude them by driving off at high speed. This led to a protracted high-speed chase through several suburbs of Adelaide before the vehicle driven by the appellant collided with another and came to a halt. The appellant then sought to evade the police on foot. The appellant pleaded guilty to 14 separate offences arising out of these events and was sentenced by a District Court judge. The pleas had been entered in the Magistrates Court. In addition, the appellant was sentenced for two earlier offences of illegal use, (the first on 13 June 2003 and the second on 4 May 2004) and for the offence of theft of a motor vehicle on 21 May 2004.
The Appeal Against Conviction
The appeal against conviction relates to the offences of illegal use and theft of motor vehicles committed on 21 and 23 May 2004.
The appellant was charged with the theft and the illegal use of three vehicles. Count 1 alleged the theft at Montacute on 21 May 2004 of the vehicle (a green Holden utility) of Victim One, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). Count 2 alleged the illegal use, contrary to s 86A(1) of the CLCA, of the same vehicle two days later at Modbury. Count 4 alleged the theft at Hackney on 23 May 2004 of the vehicle (a white sedan) of Victim Two while Count 5 alleged the illegal use of the same vehicle also at Hackney and also on 23 May 2004. Count 6 alleged the theft at Glenelg East on 23 May 2004 of the vehicle (a blue Holden sedan) of Victim Three while Count 7 alleged the illegal use of the same vehicle on the same day but at Kilburn.
The sole ground of appeal was that despite his pleas of guilty, the appellant could not, as a matter of law, be convicted of both theft and illegal use of the same vehicle pursuant to those Counts. Hence, it was submitted that the plea to Count 1 (theft of the vehicle of Victim One) was a bar to a conviction being entered on Count 2 (illegal use of the vehicle belonging to Victim One). The same submission was made with respect to Counts 4 and 5, and Counts 6 and 7. It was submitted that each of the convictions for illegal use should be set aside. As the argument developed, it became apparent that the submission of the appellant was not that a person could not, as a matter of law, be convicted of both offences in relation to the one vehicle, but that in the particular circumstances of this case, it was not permissible as a matter of law or alternatively inappropriate for the appellant to be convicted of both.
Although the appellant had pleaded guilty to each of the offences, it was open to him to appeal against the convictions on this ground.[1]
[1] R v De Kuyper (1948) SASR 108 at 109-10.
Section 86A(1) of the Criminal Law Consolidation Act 1935 (“CLCA”) provides:
(1)A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
Section 134 of the CLCA provides (relevantly):
(1)     A person is guilty of theft if the person deals with property—
(a)     dishonestly; and
(b)     without the owner's consent; and
(c)     intending—
(i)     to deprive the owner permanently of the property; or
(ii)    to make a serious encroachment on the owner's proprietary rights.
(2)A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a)     to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b)     to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i)     that the owner will not get it back; or
(ii)that, when the owner gets it back, its value will be substantially impaired.
…
Depending upon the circumstances, the theft of a vehicle may have much in common with the offence of illegal use of the vehicle. In the case of the latter offence, the elements are (1) driving, using or interfering with a motor vehicle, (2) on a road or elsewhere, (3) without first obtaining the consent of the owner. In the case of the theft of a motor vehicle, the elements are (1) dealing[2] with the vehicle, (2) dishonestly, and (3) without the owner’s consent, and (4) intending either to deprive the owner permanently of the vehicle or to make a serious encroachment on the owner’s proprietary rights.
[2] The word “dealing” is defined in s 130 of the CLCA.
The circumstances in which a defendant is entitled to raise a plea to one offence in bar to a further charge, or to a stay of proceedings on the further charge arising from the same or substantially the same conduct were considered by the High Court in Pearce v The Queen[3] and in the decisions of the Chief Justice of this Court in DAT v Police[4] and Rucioch v Police[5]. In Pearce, McHugh, Hayne and Callinan JJ held that a plea in bar should be confined to those cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly pleaded in the other.[6] But it is important to note that that principle applies where each offence arises from the same, or substantially same set of facts. It is immaterial that the elements may be the same if it is not the same conduct, or substantially the same conduct, which is relied on for each offence.
[3] (1998) 194 CLR 610.
[4] [2001] SASC 219; (2002) 83 SASR 237.
[5] [2004] SASC 127; (2004) 88 SASR 326.
[6] (1998) 194 CLR 610 at 618 [24]. See also Rucioch v Police [2004] SASC 127; (2004) 88 SASR 326 at [27].
In my opinion, the circumstances giving rise to this appeal are not an occasion for the application of the principles relating to a plea in bar or to a stay of the prosecution of the offences of illegal use. It is reasonably clear from the terms of the Information charging the offences that in relation to two of the pairs of offences, the conduct relied upon for the offence of illegal use was different from the conduct relied upon for the offence of theft of the same vehicle. The theft of the vehicle of Victim One was alleged to have been committed on 21 May 2004 at Montacute, a suburb of Adelaide whereas the offence of illegal use of the same vehicle was alleged to have been committed two days later, on 23 May 2004, at Modbury, approximately 15 kms away from Montacute. The conduct which was said to comprise the “taking” of the vehicle on 21 May 2004 could not have been the same conduct comprising the “driving” of the vehicle on 23 May 2004. Furthermore, the offence of theft, by its nature, is an offence which is completed at the time of the taking of the vehicle (providing that, at the time of the taking of that vehicle, the defendant has the intention either to deprive the owner permanently of the vehicle or, to make a serious encroachment on the owner’s proprietary rights). The offence of illegal use is capable of being committed over a span of time, being the whole of the period of the use of the vehicle or, alternatively, the use of the vehicle in a particular locality. In these circumstances, it cannot be concluded that the elements of the offence of illegal use alleged against the appellant in Count 2 were included in the elements of the offence of theft alleged against him.
A similar position applies with respect to Counts 6 and 7. The offence of theft of the vehicle of Victim Three was alleged to have been committed at Glenelg East, a suburb of Adelaide. The offence of illegal use of the vehicle of Victim Three was said to have occurred at Kilburn, another suburb of Adelaide, but approximately 18 kms from Glenelg East.
The position with the offences concerning the vehicle of Victim Two is admittedly not quite so clear. Each of the offences of theft and illegal use involving Victim Two’s vehicle was alleged to have occurred on 23 May 2004 at Hackney. There is no obvious feature of time or place in the respective Counts which enables it to be concluded that each was based on different conduct. But Hackney is a large suburb. The theft could well have occurred in one part of Hackney and the illegal use in another. The statement of Victim Two indicates that his vehicle was stolen from the forecourt of a Hackney Road service station whilst he was putting air in its tyres and was last seen by him travelling east on Westbury Street, Hackney. The conduct relied upon for the theft could therefore have been different from the conduct comprising the illegal use, the latter being conduct which continued up to the cessation of the driving of the vehicle (or at the least until the vehicle left the suburb of Hackney) with the former offence being completed at or about the time at which the vehicle was removed from the service station forecourt. While it is not possible to be certain about this in the absence of particulars, it would be consistent with Counts 1 and 2 and Counts 4 and 5 to regard these two Counts as being based on different conduct.
In these circumstances, my opinion is that it cannot be said that an application of the principles stated in Pearce is required. Rather this case appears to be one in which a series of events has given rise to a number of different offences,[7] with the conduct relied upon for each offence of illegal use being different from the conduct relied upon for the offence of theft. In the absence of particulars, it cannot be concluded that the elements of the offences alleged are the same. Nor can it be concluded that the elements of one offence are included in the other offence or that each offence is based on the same conduct. The appeal against conviction should therefore be dismissed.
[7] cf Pearce v The Queen (1998) 194 CLR 610 at 614-5 [11].
The Appeal Against Sentence
Leave to appeal against sentence was granted on two grounds. The first was that no sentence should have been imposed at all in respect of Counts 2, 5 and 7 (the counts alleging illegal use) because the conduct was dealt with by the sentence for Counts 1, 4 and 6. The decision on the appeal against conviction indicates that that ground cannot be sustained. However, on appeal it was submitted that it would have been inappropriate in the circumstances of this case for the sentences in respect of those offences to have been made cumulative on the sentences for the offence of theft of the same vehicle, it being submitted that the conduct comprising each should really be regarded as arising from the one incident.
The second ground is that the sentences imposed by the judge were manifestly excessive.
The Circumstances of the Offending
On 13 June 2003, the appellant committed the offence of illegal use of a vehicle taken from an address at Lockleys. That vehicle was recovered two days later. The offending in May 2004 commenced on 4 May. The appellant took a vehicle from a carpark at Paralowie. It was located at Ingle Farm two days later (without its number plates).
On 21 May 2004, the appellant stole the green Holden utility of Victim One from a petrol station at Modbury whilst the owner was paying for petrol. At some stage the appellant attached registration plates stolen from another vehicle to the Holden utility. The appellant pleaded guilty to the theft[8] of those number plates.
[8] CLCA, s 134(1).
In the early hours of 23 May 2004, the appellant stole the vehicle of Victim Three. It is not clear what use was made of that vehicle immediately after it was stolen but it was used again by the appellant later in the day.
During the day of 23 May 2004 the appellant, in company with another, used the green Holden utility whilst committing other offences, namely, the theft of items from two vehicles at Glengowrie, one at Glandore and one at Kilburn. In the first case a Cooler bag to the value of $20 was stolen before the appellant was interrupted; in the second, a handbag, wallet and $400 in money were stolen; in the third, a briefcase and contents valued at approximately $2,500 were stolen; and in the fourth, a handbag and its contents including a mobile telephone and key-rings were stolen. Each of the thefts was charged as a separate offence.
In addition, in the afternoon of 23 May 2004 the appellant filled the green Holden utility with petrol at a petrol station but drove off without paying. Making off dishonestly intending to avoid payment is an offence contrary to s 144(1) of the CLCA, for which the maximum penalty is imprisonment for two years.
Beginning at about 5.00 pm on 23 May 2004 and concluding at approximately 6.30 pm, the appellant sought to avoid apprehension by the police by engaging in a course of conduct which involved substitution of vehicles, driving at high speed and erratically through many Adelaide suburbs. For much of this period, his behaviour was observed from a police helicopter. From time to time various police officers engaged in high speed pursuit of the appellant.
The observations by the police of the appellant began when the green Holden utility was at Bridge Road, Pooraka. It then moved via Bridge Road to Montacute Road, Ingle Farm, back to Pooraka, south on Main North Road, back to Bridge Road, south to Churchill Road at Kilburn and Prospect, west on Torrens Road, south to the City on North Terrace and King William Street, including a period in which the appellant drove on the incorrect side of King William Street. At about 5.30 pm, the appellant and his co-offender dumped the green Holden utility and stole the white sedan of Victim Two (an elderly man) while he was placing air in its tyres. The white sedan was then driven through various suburbs including travelling on Portrush Road at Glenunga before travelling to Kilburn. In Albert Street, Kilburn the white sedan was dumped and the appellant and his co-offender began using the blue Commodore belonging to Victim Three, which had been stolen earlier that day. This vehicle was reversed at high speed into a police vehicle which was being positioned to block its path. The vehicle was then driven through several suburbs and was involved in minor collisions with other vehicles at Para Hills and at Bolivar (the latter whilst travelling at high speed on Port Wakefield Road). The appellant then drove the blue Commodore through North Adelaide into the City and eventually to West Terrace and on to Goodwood Road. After spinning out on Goodwood Road so as to face in the opposite direction, the appellant drove back into the City, driving through red lights, colliding with a vehicle at the intersection of West and South Terraces, colliding with two police vehicles near the intersection of West and North Terraces, and colliding with yet another vehicle at the intersection of North Terrace and King William Street when again he ignored a red light which was applicable to his vehicle. After that collision, the appellant’s vehicle came to a halt.
The appellant’s driving in this period was erratic, often on the incorrect side of the road, often at high speed and was in complete disregard of the operation of traffic lights and of the interests of other road users. The appellant continued to drive the blue Commodore even after a rear tyre deflated and later shredded. His behaviour required a significant commitment of police resources. As his own counsel acknowledged, it is both remarkable and fortunate that no one was killed or seriously injured.
The appellant’s driving into the intersections of West and South Terraces and of North Terrace and King William Street was the subject of two separate charges of endangering the life of another.[9] The maximum penalty for an offence of this kind is 15 years’ imprisonment.
[9] CLCA, s 29(1).

The manner of the appellant’s driving was the subject of the charge of driving in a manner which was dangerous to the public.[10] Although the appellant has a prior conviction for this offence, it was more than five years previously and so he was to be sentenced as a first offender,[11] ie, by a fine of not less than $300 and not more than $600. In addition, a licence disqualification of not less than six months had to be imposed.[12]
[10] Road Traffic Act 1961, s 46(1).
[11] Road Traffic Act 1961, s 46(4).
[12] Road Traffic Act 1961, s 46(3).
In summary, the appellant’s conduct on 21 and 23 May 2004 gave rise to three charges of theft of a vehicle, three charges of illegal use of a motor vehicle, five charges of theft of items from other motor vehicles, two charges of endangering life, one charge of driving in a manner dangerous to the public, and one charge with making off without payment, to all of which the appellant pleaded guilty. In addition, there were the offences of illegal use of a motor vehicle on 7 June 2003 and 4 May 2004 to which the appellant had also pleaded guilty.
The Appellant’s Antecedents
The appellant, now aged 31, has an extensive list of prior offences. That includes numerous convictions for offences of dishonesty, drug offences and traffic offences. In particular the appellant has six prior offences of illegal use of, or interference with a motor vehicle. The offences committed in May 2004 occurred whilst the appellant was on parole (he having been released from prison on parole on 6 March 2004). The Parole Board ordered, pursuant to s 74 of the Correctional Services Act 1986, that the appellant serve a further six months in custody. It was accepted that after serving that six months, the unserved portion of a previous sentence imposed on the appellant was, at the time of sentencing by the judge, four months and seven days.
The appellant was in custody, on remand, from 22 November 2004 until sentenced by the judge on 21 July 2005, a period of eight months.
The Sentences Imposed
In respect of each of the offences of illegal use of a motor vehicle which were committed on 13 June 2003 and 4 May 2004, after allowing a discount for the pleas of guilty, the judge imposed a sentence of three months’ imprisonment and disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months. In respect of the offences which were committed on 21 and 23 May 2004 (other than the offence of driving at a speed which was dangerous to the public[13]) the judge used the power in s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) and, after allowing a 25 per cent reduction for the pleas of guilty, imposed a head sentence of 12 years’ imprisonment, and said that he would impose a licence disqualification of 15 years. Each of the sentences of imprisonment was ordered to be cumulative, one upon the other. This meant that the total period of imprisonment which the judge ordered to be served was 12 years and six months.
[13] Road Traffic Act 1961, s 46.
In respect of the offence of driving in a manner which was dangerous to the public, the judge imposed a fine of $500 and a licence disqualification of one year. The judge said that he would order each of the licence disqualifications to be cumulative. This produced a total period of proposed disqualification of 18 years but, invoking the principle of totality, the judge reduced that period to seven years and six months.
Having determined that the total period to be served as a result of the sentences imposed by him was 12 years and six months (described by the judge as the “head sentence”) the judge then fixed a non-parole period of seven years and six months. He then added to that non-parole period the period of four months and seven days (which he described as “the period of unexpired parole”). The judge then said:
The period to be served thus becomes seven years, 10 months and seven days. You have been in custody since 22 November 2004 – a period of eight months to-date. That period is to be deducted from the non-parole period. Thus you are to serve in prison a period of seven years, two months and seven days starting today.
I have considered the principle of totality in relation to this sentence and am of the view I should adjust it after having regard to both your personal circumstances and the nature of your offending. I fix a final non-parole period and six years and six months to be served as from today.
Errors in the Sentencing Process
Where a person is sentenced to imprisonment for an offence committed while on parole, and that sentence is not suspended, the person is liable to serve in prison the balance of the sentence of imprisonment in respect of which he or she was on parole, being the balance unexpired at the date the offence was committed.[14] Where the person is sentenced for more than one offence, it is the unserved balance of the previous sentence as at the date on which the earliest offence was committed which must be served. In this case, that day was 4 May 2004. The parties accepted that the unserved balance of the previous sentence as at 4 May 2004 was four months and seven days.
[14] Correctional Services Act 1982, s 75(1).
Where a person is, by virtue of the operation of s 75(1) of the Correctional Services Act liable to serve the balance of the previous sentence and the new sentence of imprisonment, the sentencing court is required, in fixing a non-parole period, to have regard to the total period of imprisonment which the offender is to serve.[15] In this case, that total period was, in accordance with the sentence of the sentencing judge, 12 years, 10 months and seven days. This was the period by reference to which the non-parole period was to be fixed, but the judge fixed the non-parole period by reference to a head sentence of 12 years and six months. The judge erred by not treating the sentence he imposed as cumulative upon the unserved balance of the previous sentence, and further, by fixing a non-parole period by reference, in the first instance, only to the sentence which he had imposed.
[15] Criminal Law (Sentencing) Act 1988, s 32(2).
Further, having fixed a non-parole period of seven years and six months, the judge then added the period of four months and seven days, describing this as “the period of unexpired parole”. In truth, it was not a period of unexpired parole but the unserved portion of the previous sentence. The judge’s approach led him to a provisional non-parole period of seven years, 10 months and seven days. For the reasons given above, this approach was incorrect as a single non-parole period determined by reference to the total period to be served had to be fixed.
There were further errors. Account had to be taken in the appellant’s favour of the period of eight months which he had spent in custody prior to 21 July 2005. The judge did this by deducting eight months from his provisional non-parole period (of seven years, 10 months and seven days) but not from the head sentence. In my opinion, as the sentencing was not made effective from 22 November 2004 the period of eight months should have been deducted from the sentence of 12 years’ imprisonment: this would have reduced the total period to be served and hence the period by reference to which the non‑parole period was to be fixed.
I consider that there were also errors in the judge’s application of the totality principle. It can be seen that the judge applied the totality principle so as to reduce his final provisional non-parole period (of seven years, two months and seven days) to six years and six months. If the totality principle had any application at all, it was to the fixation of the sentence of imprisonment for the offences for which the judge was sentencing the appellant. It could not be applied so as to reduce the unexpired balance of the previous sentence which the appellant had to serve by virtue of s 75(1) of the Correctional Services Act.[16] Although the unexpired balance of a previous sentence cannot be reduced, it is nevertheless part of the personal circumstances of the offender which a sentencing court should take into account in considering the sentence which it will impose for the current offending.[17]
[16] R v Rossi (1988) 142 LSJS 451 at 453, per King CJ.
[17] Ibid.
Further, in a series of decisions, this Court has said that ordinarily the principle of totality has no application when a single sentence for multiple offences is imposed pursuant to s 18A of the Sentencing Act, when that sentence has been determined without consideration of the notional sentences which would be imposed individually. In R v Bennett Doyle CJ said:
The totality principle cannot be invoked, as it sometimes is by counsel, as a routine basis for reducing an otherwise appropriate sentence. The concept of totality has little or no part to play when a sentence is imposed exercising the powers conferred by s 18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether all such sentences should be cumulative or concurrent.[18]
[18] [2005] SASC 55 at [15]. See also R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [16]–[17] per Doyle CJ, at [24]-[25] per Vanstone J; R v Kench [2005] SASC 85 at [42]; (2005) 152 A Crim R 294 at 300; R v E, AD [2005] SASC 332 at [36]; R v S, KW [2005] SASC 423 at [18].
Although the totality principle may be applied in an appropriate case in the fixation of the non-parole period[19] it is not easy, in my opinion, to see that the judge’s provisional non-parole period of seven years, two months and seven days should have been regarded as crushing but that a non-parole period only eight months and seven days less would be appropriate. In short, this does not seem to have been a case where invocation of the totality principle was appropriate.
[19] Cf R v Miller [2000] SASC 16; (2000) 76 SASR 151.
The Use of s 18A
In the application of s 18A of the Sentencing Act, it is usually desirable to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent and then to determine the aggregate sentence[20] but there are cases in which that approach is inappropriate or unnecessary. In relation to such circumstances, the Chief Justice in R v Symonds said:
The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.[21]
[20] R v Major (1998) 70 SASR 488 at 490 per Doyle CJ, at 497 per Olsson J; R v Gale [1999] SASC 309; (1999) 74 SASR 235 at 238 [18]-[19] per Bleby J; R v Tu [2001] SASC 395; (2001) 216 LSJS 297 at 300 [16] per Martin J.
[21] [1999] SASC 217 at [22].
Whichever approach is adopted, it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed.[22] Such an explanation is intrinsic in the approach identified in R v Major. That is one of the advantages of that approach. When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved.
[22] Criminal Law (Sentencing) Act 1988, s 9(1).
In the present case, the judge did not give any explanation at all as to the means by which he reached a starting point of 16 years before a discount of four years for the guilty pleas. In that respect the judge was, in my respectful opinion, in error.
The errors which I have identified indicate that the appeal against sentence should be allowed. Mr Press, who appeared for the Director, did not contend to the contrary. Both parties agreed that it is appropriate for this Court to re-sentence the appellant.
The Appellant’s Personal Circumstances
The appellant has had a significant addiction to amphetamines since the age of 25. Much of his offending has been related to that addiction. As at 23 May 2004 he was using amphetamines daily and had not slept for 3-4 days. Although he says that he was aware that he was driving a stolen vehicle and that he was being pursued by the police, the appellant claims to have no real memory of the events of 23 May 2004. Having seen a video taken from the police helicopter, the appellant has admitted to being shocked by his own behaviour.
The appellant has not responded to drug rehabilitation programmes in the past. Nor has he responded to the opportunities for rehabilitation which home detention, suspended sentences and parole have provided to him. Although the appellant says that he is now committed to rehabilitation and is undertaking courses of study whilst in custody, the prospects of a successful rehabilitation at this stage remain guarded.
The Co-offender and the Drug Diversion Program
The appellant contended that his co-offender had been accepted for participation in the Drug Diversion Program in the Magistrates Court.[23] If the co-offender completed the requirements of that Program, it is possible that he might not be sentenced to any imprisonment at all for his part in the offending on 23 May 2004. The appellant contended that the disparity between the co-offender’s position in that eventuality and his own position also indicated that the sentences imposed on him were manifestly excessive. In my opinion, this submission should not be accepted. In the first place there is no sentence of the co-offender with which comparison may be made. Until the co-offender completes the Program, or his participation in it is terminated, it will not be known what sentence is imposed on him. Further, the fact that the co-offender satisfied the eligibility criteria for participation in the Program, but the appellant did not, is sufficient to indicate that a meaningful comparison of their respective positions cannot be made.
[23] The Drug Diversion Program is discussed in R v Becker [2005] SASC 186; (2005) 91 SASR 498 at 507-10 [44]-[48].
Re-sentence
The appellant’s offending is serious. It comprised a prolonged course of lawlessness, a complete disregard for the property rights of others and a complete disregard for the safety and welfare of other road users. As already noted, a significant amount of police resources had to be committed to the appellant’s apprehension. Although a Victim Impact Statement was provided by only one victim, the witness statements of several others give some indication of the fright and distress which they experienced and of the inconvenience which the appellant’s conduct caused them.
In the circumstances of this case, I do not consider either the fact that the offending on 23 May 2004 occurred while the appellant was affected by amphetamines, or the circumstance that the appellant has an addiction to amphetamines, to be mitigatory in a significant way.[24]
[24] R v Proom [2003] SASC 88; (2003) 85 SASR 120.
The maximum penalty for the offence of theft is 10 years imprisonment, and for endangering life 15 years imprisonment. The penalty for a subsequent offence of illegal use of a motor vehicle is a term of imprisonment of between three months and four years. Considerations of both personal and general deterrence are important in this case.
In my opinion, it would be appropriate to impose a single sentence of imprisonment in respect of all of the offences to which the appellant pleaded guilty (other than the offence of driving a vehicle in a manner which was dangerous to the public – as there is no sentence of imprisonment applicable to that offence). I would make the sentencing effective from 21 July 2005, the date upon which the appellant was sentenced by the judge.
Like the sentencing judge, I would impose notional sentences of imprisonment of four months (before reduction for the guilty pleas) in respect of each of the two offences of illegal use of a motor vehicle which occurred on 13 June 2003 and 4 May 2004. Those sentences should be cumulative.
In respect of the offence of theft of the motor vehicle of Victime One on 21 May 2004, the illegal use of that vehicle on 23 May 2004 and the theft of the number plates which were fitted to that vehicle, I would impose sentences of imprisonment of one year and 10 months and one month respectively. Each of those sentences should be cumulative. They did not arise out of the one incident and did not form part of the one incursion into crime.
In respect of the offence of the theft of the vehicle of Victim Two and the use of his vehicle, I would impose notional sentences of imprisonment of one year and 10 months and four months respectively. Each of those sentences should be served concurrently with the other but cumulatively upon the other sentences. I have considered that they should be served concurrently because the two offences comprised part of the one course of conduct.
In respect of the theft of the vehicle belonging to Victim Three and the use of his vehicle, I would order that the appellant serve sentences of imprisonment of one year and 10 months respectively. I would order that each of those sentences be served cumulatively. The conduct in the driving of the vehicle did not follow immediately after the conduct which comprised the theft of the vehicle. The conduct was separated in both time and place.
I would impose notional sentences of two months imprisonment in respect of each of the four offences of theft of items from the vehicles. Although the value of the items stolen in each case varied, I consider it appropriate in the circumstances of this case not to differentiate between the respective offences. Each of those sentences should be served cumulatively.
In respect of the offence of making off without paying for the petrol at the self-serve petrol station, I would impose a sentence of one month’s imprisonment and would make that cumulative upon all the other sentences.
Finally, in respect of each of the two offences of endangering life by driving the vehicle through City intersections against a red light, I would impose notional individual sentences of imprisonment of five years. I would order that those two sentences be served concurrently but cumulatively upon all other sentences.
The total of the periods of imprisonment which I would order to be served cumulatively is 12 years and eight months. Applying the 25 per cent reduction for the early pleas of guilty which the sentencing judge applied produces a period of nine years and six months imprisonment. Account must then be made of the eight months which the appellant has already served. That reduces the starting point to a period of eight years and 10 months. Accordingly, exercising the power conferred by s 18A of the Sentencing Act, I would sentence the appellant to imprisonment for eight years and 10 months in respect of the offences referred to above. This sentence is cumulative upon the unexpired balance of the sentence of imprisonment in respect of which the appellant was on parole. The balance of that sentence (four months and seven days) began to be served from 21 July 2005, the day on which the appellant was sentenced by the judge. Accordingly, I would direct that the sentence of eight years and 10 months be taken to have commenced on 28 November 2005, being four months and seven days after the date of sentencing.

The total period of imprisonment to be served by the appellant is nine years, two months and seven days. In relation to that total period I would fix a non‑parole period of six years, and direct that that non-parole period be taken to have commenced on 21 July 2005.
Driving in a Dangerous Manner
A separate sentence for this offence must be imposed as it is not punishable by imprisonment. For the reasons already given, this is a particularly serious offence of its type. I would impose the same sentence as proposed by the sentencing judge, namely, a fine of $500 and a licence disqualification of one year. It was not suggested on appeal that the imposition of the fine was contrary to s 13 of the Sentencing Act.
Licence Disqualification
A disqualification for a period of 12 months is mandatory for each offence of illegal use of a motor vehicle.[25] Disqualification for a total of five years is therefore imposed in respect of those offences.
[25] CLCA s 86A(2).
Section 168 of the Road Traffic Act provides (relevantly) that where a person is convicted of an offence in the commission of which a motor vehicle is used, or the commission of which was facilitated by the use of a motor vehicle, the court may order that the person be disqualified, either for a period fixed by the court or until further order, from holding or obtaining a driver’s licence. The sentencing judge applied s 168 so as to impose a period of licence disqualification in respect of each offence to which the appellant had pleaded guilty. This produced the total period of proposed disqualification of 18 years to which reference was made earlier but, invoking the principle of totality, the judge reduced the period of disqualification to seven years and six months.
In my opinion, it is appropriate to apply s 168 in respect of the four offences of theft of items from a motor vehicle, in respect of making off without payment, and in respect of the two offences of endangering life. In each of those cases, the appellant used a vehicle in the commission of the offence. In respect of this group of offences, I would order that there be a further period of disqualification of 12 months.
It is not appropriate, in my opinion, to order a disqualification in respect of the three offences of theft of a motor vehicle. In those cases, the vehicle was the subject of the offence rather than being used in the commission of the offence or the offence having been facilitated by the use of the vehicle.
Each period of disqualification which I would impose should be cumulative on the other. The total of the periods of disqualification is therefore seven years. The period should be taken to have commenced on 21 July 2005.
Summary
For the reasons already given, my opinion is that the appeal against conviction should be dismissed. The appeal against sentence should be allowed and the sentences of the judge set aside. Exercising the power contained in s 18A of the Criminal Law (Sentencing) Act, I would sentence the appellant to imprisonment for eight years and 10 months in respect of all of the offences for which the appellant was sentenced by the judge (other than the offence of driving in a manner dangerous to the public). That sentence is cumulative upon the unexpired balance of the sentence of imprisonment in respect of which the appellant was on parole. The balance of that sentence (four months and seven days) began to be served from 21 July 2005, the day on which the appellant was sentenced by the judge. Accordingly, I would direct that the sentence of eight years and 10 months be taken to have commenced on 28 November 2005, being four months and seven days after the date on which the appellant was sentenced by the judge. I would fix a non-parole period of six years, and would direct that that non-parole period be taken to have commenced on 21 July 2005 (the date upon which the appellant was sentenced by the sentencing judge). In respect of the offence of driving in a manner dangerous to the public, I would impose a fine of $500 and a licence disqualification of one year. I would impose the mandatory licence disqualification of one year in respect of each of the offences of illegal use. In respect of the offences of theft of items from a motor vehicle, making off without payment and the two offences of endangering life, I would impose a further period of disqualification of 12 months. The total period of disqualification is seven years. I would direct that that period be taken to have commenced on 21 July 2005.