R v Williams - [2006] SASC 237

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2006] SASC 237
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
10 August 2006
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
Appeal against sentence - appellant pleaded guilty to aggravated serious criminal trespass and theft in a place of residence committed on 23 January 2005 and was convicted following trial by jury of illegal use of a motor vehicle, four counts of theft, aggravated robbery and dishonestly manipulating an automatic teller machine all committed in February 2005 - appellant sentenced in respect of all of the offending - appeal on grounds that sentences imposed were manifestly excessive due to misapplication of totality principle and section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - whether sentencing Judge had correctly applied section 18A - whether sentencing Judge had correctly applied totality principle - discussion of relevant case law - consideration of the sentence imposed - Held: error identified on court record to be corrected - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 170(2), s 134, s 86A, s 137(2), s 141(1), s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ea) and (2), s 18A, referred to.
Markarian v R (2005) 215 ALR 213; AB v R (1999) 198 CLR 111; Wong v R (2001) 207 CLR 584; R v Simpson (2004) 89 SASR 515; R v Place (2002) 81 SASR 395; R v Place (2002) 81 SASR 395; R v Creed (1985) 37 SASR 566; R v Major (1998) 70 SASR 488; Postiglione v The Queen (1997) 189 CLR 295; R v Becker (2005) 91 SASR 498; R v Jones [2005] SASC 183 , considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Totality principle"

R v WILLIAMS
[2006] SASC 237
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Gray J.
I agree also that the endorsement on the Information and the District Court record should be corrected. It is important that these court records reflect accurately the sentence that is imposed.
DUGGAN J: I agree with the reasons of Gray J. The appeal against sentence should be dismissed.
GRAY J:
This is an appeal against sentence.
The appellant, John Christopher Williams, pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence[1] and theft,[2] committed on 23 January 2005.
[1] Section 170(2), Criminal Law Consolidation Act 1935 (SA). Maximum penalty: life imprisonment.
[2] Section 134, Criminal Law Consolidation Act. Maximum penalty: 10 years imprisonment.
In addition, the appellant was convicted by jury verdict following a trial in the District Court, of illegal use of a motor vehicle, committed between 14 and 24 February 2005,[3] four counts of theft, committed on 17, 18 and 19 February 2005, aggravated robbery committed on 19 February 2005[4] and dishonestly manipulating an automatic teller machine, committed on 19 February 2005.[5]
[3] Section 86A, Criminal Law Consolidation Act. Maximum penalty: imprisonment for not less than three months and not more than four years and at least 12 months disqualification from holding or obtaining a driver’s licence.
[4] Section 137(2), Criminal Law Consolidation Act. Maximum penalty: life imprisonment.
[5] Section 141(1), Criminal Law Consolidation Act. Maximum penalty: 10 years imprisonment.
The appellant was sentenced for all of the above offending. The Judge imposed five separate sentences of imprisonment in respect of the offending leading to a total period of imprisonment of 10 years. The Judge fixed a non-parole period of seven years.
The method by which the Judge arrived at this total period of imprisonment is the subject of this appeal. It was submitted that the methodology adopted led the Judge to misapply his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and to misapply the totality principle.
The Offending
The January 2005 offences were described by the sentencing Judge as follows:
As to the January offences, Mrs [P’s] handbag was stolen in a ‘smash and grab’ from a car at the Payneham Cemetery on 20 January 2005.
Mrs [P’s] elderly mother, [A], was in the car at the time. You have not been charged with that offence, but clearly that led to events which occurred three days later, when you and at least one accomplice entered [A’s] house without her permission by smashing a window. She is elderly and frail. It was 5 p.m. in the afternoon and she was already in bed. You walked into her bedroom and rifled through her belongings. She is not mobile, and she had to watch helplessly while you did it. You stole a television set, a crystal box and a brooch. She must have been terrified at this invasion of the privacy of her house.
The serious criminal trespass is aggravated by virtue of the fact that you were in the company of another, and you knew that there was a person in the house when you entered. As I said, the penalty for that offence is life imprisonment.
The circumstances of this offending, when the appellant broke into and rifled through an elderly and helpless lady’s home whilst she was lying in bed, unable to do anything to prevent the appellant or to protect herself, were particularly grave. Section 10 of the Criminal Law (Sentencing) Act provides that:
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(ea) in the case of an offence committed by an intruder in the home of another—the need to give proper effect to the policy stated in subsection (2);
…
(2)A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.
The sentencing Judge took into account the serious impact of this offending:
You seem to have made a habit of preying upon elderly and defenceless women in circumstances, either at their house, or at the cemetery. This is intolerable to the community and will not be tolerated.
The February 2005 offences were also perpetrated in company with another. On 15 February 2005, the appellant stole a motor vehicle from a city street. The appellant used that vehicle in the commission of all of the subsequent offences. The sentencing Judge described that offending in the following terms:
The next offence was the theft of Ms [S’s] handbag on 17 February 2005. She left her car in the school car park to collect her children. She saw you take it from the seat and get into a car, and [your accomplice] drove you away at speed.
On 18 February, Mrs [W] left her car at the Dudley Park Cemetery. While she was away, you stole her handbag, containing her wallet, mobile phone and medication. The phone was later recovered.
On 19 February, you robbed Mrs [O], at the Castle Plaza Shopping Centre. As she was getting into her car, you drove alongside, [your accomplice] got out and attempted to snatch her bag. A struggle ensued, and the bag was snatched. The door was slammed on Mrs [O’s] hand, and she fell over as you escaped. Her bag contained her wallet, credit cards, driver’s licence, and other property. …
Within 15 minutes or so, you and [your accomplice] attended at the ATM at the Morphett Arms Hotel so that you could steal more from Mrs [O] by dishonestly using her credit card. You were unsuccessful, and you were filmed on closed- circuit television.
Later that morning, Mrs [T’s] mother, who is aged 80, was at Centennial Park Cemetery visiting her husband’s grave. She could barely speak English. Mrs [T] left her mother for a few minutes to get some water. You arrived and, in full view, snatched her mother’s handbag from the car, while she stood there helplessly and watched you. About $140 was taken, together with items of sentimental value to her. The victim impact statement again speaks of the fear and apprehension both Mrs [T] and her mother felt as a result of your behaviour.
Later that afternoon, you stole another handbag from Mr [G’s] elderly mother while they were visiting the Salisbury Cemetery. They left the car unattended and you smashed the window and took the bag. It contained $1300 with which Mrs [G] wanted to buy a new lounge suite. This was never recovered.
The criminal conduct engaged in by the appellant was grave. Each of the offences reflected a pattern, whereby the appellant preyed upon defenceless, vulnerable and often elderly members of the community. The victim impact statements spoke of the ongoing fear and distress experienced by the victims as a result of the appellant’s offending. The appellant's conduct represented a serious invasion of the right of the elderly and vulnerable to feel safe in public places.
Appellant’s Antecedents
Personal
The appellant was born in 1970. At the time of sentencing, he was 35 years old. He is the father of two children, aged 12 and six years.
The appellant experienced a disrupted childhood due to family moves and also to separation from his parents by way of substitute care and secure care as a juvenile. As a result, his education was also disrupted. He left school at the age of 15 without completing year 10. In the years after leaving school, he held a number of short-term positions in casual employment. During the 1990s, he worked for 12 months with Kaurna Heritage in conserving a burial site at Salisbury. Otherwise, the appellant has had long periods of unemployment.
The appellant has a serious addiction to heroin, which he commenced using some nine years ago. At the time of sentencing, he had been in custody for some months and was on a methadone program. During sentencing submissions, the appellant’s counsel referred to the offending as having been “drug motivated”.
Criminal
The appellant has extensive criminal antecedents. He has prior convictions for numerous dishonesty offences, including larceny, illegal use of motor vehicle, robbery, state false name and address to police, provide false information on a bail application and non-aggravated serious criminal trespass. He has also been convicted for numerous offences of unlawful possession and possessing cannabis as well as many driving related offences. Since 1984, there has not been any lengthy period during which the appellant remained offence free. He has served terms of imprisonment. He has also previously entered into good behaviour bonds and bail agreements, which were, on occasions, breached.
The sentencing Judge accepted and recognised that the offending the subject of this appeal was more serious than any prior offending. In the Judge’s view, it represented an escalation of the appellant’s criminal conduct.
The Sentence
The Judge sentenced the appellant as follows:
I must impose lengthy sentences. I hope I do not crush any hope that you might have to change. The sentences will be as short as I think I can make them, which is consistent with my duty to the community to prevent this sort of offending.
As to the offences in January 2005, they constitute one episode of offending, so a single sentence, pursuant to s.18A of the Sentencing Act, is appropriate. I start with a sentence of three years and six months imprisonment for the aggravated serious criminal trespass and six months for the theft. A total of four years. I allow 25% discount for your pleas of guilty. There will be a sentence of three years imprisonment.
As to the offences in February 2005, I start with sentences of four years imprisonment for the aggravated robbery, nine months imprisonment for the illegal use, and six months imprisonment for unlawful manipulating the automatic teller machine. Those offences were part of one criminal enterprise. I direct that they be served concurrently. That gives a total of four years imprisonment. I direct that that sentence be cumulative on the three years that I have just imposed.
As for the four further counts of theft, I will impose one sentence, pursuant to s.18A of the Sentencing Act. In my opinion, a sentence of nine months imprisonment on each count is appropriate, making a total of three years, so you will be sentenced to three years imprisonment for those four counts. That sentence will be cumulative on the previous sentences.
On the charge of illegal use, you will be disqualified from holding or obtaining a driver’s licence for a period of five years.
That is a total of 10 years imprisonment; three years, plus four years, plus three years. I direct that those sentences commence on 22 February 2005, when you first went into custody. I fix a non-parole period of seven years.
The sentencing approach adopted by the Judge was complex and unduly so. Section 18A of the Criminal Law (Sentencing) Act allows such complexity when sentencing to be avoided. A sentencing Judge can choose to be transparent as to the manner in which a sentence has been determined, indicating notional sentences for particular offences and, where appropriate, discussing issues of concurrency and cumulation. At the end of that process, having paid due regard to reductions for pleas, contrition and remorse and having had regard to totality, a Judge is entitled to impose the one sentence if the discretion to act under section 18A is invoked. The advantage of the one sentence is that it avoids undue complexity in the terms of the ultimate sentence imposed. A number of problems arose in the present case in the recording and implementation of the sentences. These problems appear to have arisen because of the complexity of the sentences. A number of these complications are discussed below.
The Appeal
The appellant contended that the Judge erred in imposing sentences for the four offences of theft that operated cumulatively upon each other and cumulatively upon the sentences imposed for the other offences and thereby erred in his application of section 18A of the Criminal Law (Sentencing) Act. The appellant further contended that the sentencing Judge erred in imposing the sentences without proper regard to the principle of totality. Finally it was said that the sentences were manifestly excessive in all the circumstances.
In Markarian,[6] Gleeson CJ, Gummow, Hayne and Callinan JJ discussed the approach that an appeal court should adopt in considering an appeal against sentence:[7]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[6] Markarian v R (2005) 215 ALR 213.
[7] Markarian v R (2005) 215 ALR 213 at [25]. (footnotes omitted)
The decisions in AB[8] and Wong[9] in which the High Court stated that the task of a sentencer is to take account of all of the relevant factors and to arrive at a result were re-affirmed.
[8] AB v R (1999) 198 CLR 111.
[9] Wong v R (2001) 207 CLR 584.
In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ also discussed the general approach to be taken to sentencing:[10]
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
[10] Markarian v R (2005) 215 ALR 213 at [39].
The approach adopted by the sentencing Judge involved considerable transparency. The Judge treated the January 2005 offending as involving the one incident and invoked his discretion under section 18A of the Criminal Law (Sentencing) Act when determining an appropriate sentence. He imposed the one sentence of three years imprisonment. A reduction of 25 per cent was made on account of the pleas of guilty.
The offending involving the offences of aggravated robbery, illegal use and the unlawful manipulation of an automatic teller machine was treated as part of the one criminal enterprise. Three separate sentences of imprisonment were imposed - four years, nine months and six months respectively. As the Judge considered that these offences all formed part of the one criminal enterprise, he directed that the three sentences be served concurrently, leading to a total period of imprisonment of four years to be served in respect of that offending. The Judge then directed that this period of four years imprisonment be served cumulatively on the sentence imposed with respect to the January 2005 offending. As a result, the total period of imprisonment to be served was ten years, made up of the accumulation of the two section 18A sentences each of three years imprisonment and the three further concurrent sentences of imprisonment for four years, nine months and six months.
As the sentencing Judge’s remarks disclose, the four counts of theft were all separate incidents involving different victims at different times and locations. As a result, the Judge treated those four offences separately from the other offending. The Judge again invoked a section 18A discretion with respect to these four offences and imposed the one penalty of three years imprisonment. He ordered that this sentence of three years imprisonment be cumulative on the other sentences imposed.
As earlier observed, the Judge’s sentencing approach was complex. However, it was a legitimate approach and one that disclosed considerable transparency.
Application of section 18A
Counsel for the appellant contended that by imposing separate periods of imprisonment in respect of the four counts of theft, cumulative upon each other and then cumulative upon the other offending, the Judge applied section 18A incorrectly. 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.

As is evident from the remarks of the sentencing Judge, section 18A was utilised separately in respect of the January 2005 offending and in respect of the four counts of theft committed on 17, 18 and 19 February 2005.
In Simpson,[11] Perry J discussed a similar approach adopted by a sentencing Judge. There an offender was sentenced for multiple counts of property related offences. Perry J observed:[12]
The sentencing judge was confronted with a difficult task, given the multiplicity of offence. He specifically applied his mind to the question of the appropriate approach to sentencing for multiple offending, and referred to Major, Symonds, Power, Place, R v P and Nylander.
One can sympathise with the sentencing judge when he went on to observe: “It is no simple matter to discern just what sentencing approach is indicated in any particular case involving multiple offending. …”
The answer is that there is no one approach which is necessarily right, to the exclusion of other approaches. The sentencing judge is entitled to exercise a certain amount of discretion and flexibility, and for that matter, practicality. As Doyle CJ observed in Symonds:
What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
In some cases it will be convenient and appropriate to aggregate, with a degree of concurrence and accumulation, individual sentences, so as to achieve a single penalty which may be expressed as a single sentence pursuant to s 18A. At other times, it may be “appropriate and convenient to go directly to the single sentence to be imposed.”
It was open to the sentencing Judge to adopt the course that he did in the present proceedings and to order that the separate sentences of imprisonment imposed be served cumulatively. There was no reason why the Judge should not approach the four theft offences in the manner indicated. This submission is misconceived.
[11] R v Simpson (2004) 89 SASR 515.
[12] R v Simpson (2004) 89 SASR 515 at [5]-[8] (footnotes omitted).
Principle of Totality
The totality principle allows a judge to alter an overall sentence that would otherwise be imposed, so as to ensure that the sentence is not crushing upon an offender. By indicating that he hoped that the sentence he imposed would not “crush any hope” that the appellant might have to rehabilitate, the sentencing Judge addressed this principle.
The principle of totality arose for consideration in Place.[13] The court considered the application of the principle to the one sentence being imposed in respect of an ongoing course of conduct involving a number of offences. In that circumstance, the court suggested that the last step in the sentencing process was the application of the totality principle.[14] The court referred to the decision of King CJ in Rossi,[15] where His Honour described the objective of the totality principle in the following terms:[16]
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
[13] R v Place (2002) 81 SASR 395.
[14] R v Place (2002) 81 SASR 395 at [84]-[90].
[15] R v Rossi (1988) 142 LSJS 451.
[16] R v Rossi (1988) 142 LSJS 451 at 453:
In an earlier decision, Creed,[17] King CJ spoke of the requirement that, when exercising discretion pursuant to the totality principle, "at the end of the day" a sentencing judge must "stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose".[18] In Major,[19] Doyle CJ and Olsson J confirmed the view that the question of totality is considered as the final step in the sentencing process.[20]
[17] R v Creed (1985) 37 SASR 566.
[18] R v Creed (1985) 37 SASR 566 at 568.
[19] R v Major (1998) 70 SASR 488.
[20] R v Major (1998) 70 SASR 488 at 490 and 497.
The High Court considered the totality principle in Postiglione v The Queen,[21] where McHugh J spoke of ensuring that the aggregation of sentences appropriate for each offence "is a just and appropriate measure of the total criminality involved”.[22] Kirby J described the principles of “parity” and “totality” as "in the nature of checks" to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. His Honour said it was "then" that the sentencing judge must consider whether the resulting sentence needs further adjustment by reason of parity or totality.[23]
[21] Postiglione v The Queen (1997) 189 CLR 295.
[22] Postiglione v The Queen (1997) 189 CLR 295 at 308.
[23] Postiglione v The Queen (1997) 189 CLR 295 at 340-341.
It clearly falls from Place and Postiglione that, correctly applied, the totality principle is to be taken into account after the sentencing Judge has provisionally determined the sentence to be imposed, having taken into account all relevant circumstances.
In this case, the sentencing Judge indicated his desire to impose a sentence that was not crushing upon the appellant prior to announcing the sentence that he would otherwise impose. In accordance with authority, the principle of totality should be considered after a judge has determined the sentence to be imposed having had regard to all other relevant considerations.[24] The sentencing remarks in the present case do not disclose whether this in fact occurred. To this extent, it is possible that the Judge fell into error.
[24] See R v Becker (2005) 91 SASR 498.
Consideration of the sentence
Section 353(4) of the Criminal Law Consolidation Act, in so far as it relates to appeals against sentence, relevantly provides:
… on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
Accordingly, an appellate court must only interfere with a sentence if it thinks that a different sentence should have been passed. Otherwise, the appellate court must dismiss the appeal.
The appellant’s offending was serious. As earlier observed, he preyed on the vulnerable and elderly causing considerable upset and distress. Notwithstanding that the appellant was drug driven, his conduct revealed an element of callousness. The appellant’s criminal antecedents preclude leniency that might otherwise be extended.
Each of the separate sentences imposed by the sentencing Judge was well within the range of appropriate sentences for the relevant criminal conduct. The Judge had in mind a sentence that would not crush the appellant. The Judge expressed the view that he would make the sentences as short as he thought he could make them consistent with his duty to the community to impose sentences that would operate as an effective deterrent. In my view the aggregate sentence imposed cannot be described as crushing. The period of imprisonment to be served represents appropriate punishment with respect to the appellant’s offending.
There was no suggestion that the sentencing Judge when determining the sentences to be imposed, had regard to any irrelevant factors. Nor was it suggested that the Judge failed to have adequate regard to any relevant considerations. I am not prepared to conclude that the sentencing Judge incorrectly applied the totality principle. There has not been a miscarriage of justice. The sentences imposed, both separately and when aggregated, were within a proper sentencing discretion for the appellant’s criminal offending.
The Court Record
Following the delivery of the sentencing remarks and the imposing of the five sentences, two further records were made. The first was an endorsement prepared and signed by the associate to the sentencing Judge. That endorsement under the heading, “Sentence of Imprisonment” recorded the following:
As to the January offences [information dated 1 March 2006]
Single sentence imposed pursuant to s18A of the Sentencing Act
Ct 1 - 3 years and 6 months
Ct 2 – 6 months
= 4 years
25% discount for pleas of guilty
Sentence: 3 years imprisonment
As to the February offences [information dated 14 March 2006]
Ct 4 – 4 years
Ct 1 – 9 months
Ct 5 – 6 months
Offences all part of one criminal enterprise therefore to be served concurrently
Sentence: 4 years imprisonment
To be served cumulative upon the 3 years imprisonment imposed for January offences
Ct 2 – 9 months
Ct 3 – 9 months
Ct 6 – 9 months
Ct 7 – 9 months
To be cumulative on each other and to be cumulative on the January offences
Total Head Sentence
Imprisonment for 10 years
Non Parole Period 7 years
[3 years + 4 years + 3 years]
Commencement date of sentence and non-parole period 22 February 2005.
Driver’s Licence Disqualification
HH imposed Licence Disqualification for 5 years
To commence 22 February 2005
VIC Levy $480.00
[Signed]
…
Associate
The terms of the endorsement are inconsistent with the terms of the sentence as pronounced by the Judge. As to counts four, one and five, the endorsement suggests that one sentence of imprisonment of four years was imposed. This is incorrect. Three separate sentences of imprisonment were imposed - four years, nine months and six months respectively, and the Judge ordered that they be served concurrently.
In respect to counts two, three, six and seven, the endorsement records four separate sentences, each of nine months, to be cumulative on each other. This is incorrect. The Judge invoked section 18A and imposed the one sentence of three years with respect to these counts.
Subsequently, a Court Record was prepared in accordance with the practice of the District Criminal Court. That record is the formal record signed by a judge and should accurately record the sentence imposed. This is the record upon which relevant authorities, including the Department for Correctional Services, rely as being the formal record of the court. In the event of a difference between this record and the sentencing remarks, it is the record that forms the official record of the court.[25]
[25] See R v Jones [2005] SASC 183 at [22].
The Court Record in the present case is relevantly in the following terms:
Sentence Details
1-6Theft (2)/Damaging Property/Aggravated Serious Criminal Trespass In A Place of Residence/Aggravated Robbery/Dishonest Manipulation Of A Machine
DPP file fresh Information dated 01/03/06 replacing information dated 21/11/05.
7 Interfering With A Motor Vehicle Without Consent
DPP accept Guilty plea to counts 2 and 3 (8 and 9 CRIMCASE) in full satisfaction of the Information dated 14 March 2006.
8-16Aggravated Serious Criminal Trespass In A Place Of Residence/Theft(5)/Using A Motor Vehicle Without Consent/Aggravated Robbery/Dishonestly Manipulating A Machine
Imprisonment – For 10 Years
Drivers Licence Disqual – For 5 Years
Section 168(1)(c) of the Road Traffic Act, 1961.
Head Sentence – 10 Years Commencing 22/02/05
Non-Parole Period – 7 Year Commencing 22/02/05
Victims of Crime Act Levy imposed by Statute $480.00.
The Court Record is incorrect and confusing. It suggests that the one sentence of imprisonment was imposed in respect of all offending. This is at odds with the sentences pronounced. It is important that the formal record of the court correctly records the sentences imposed. Insofar as separate sentences were imposed in respect of separate offending, this should be clearly disclosed on the face of the Court Record. The Court Record should be accurate.
Conclusion
This appeal should be dismissed. However, the endorsement and the Court Record should be corrected to accurately record the sentences imposed.