SCHULTZ v Police - [2011] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHULTZ v POLICE
[2011] SASC 136
Judgment of The Honourable Justice Peek
26 August 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
Appeal against sentence imposed by a Magistrate for 15 summary and minor indictable offences committed over a period of about nine months up to the month of June 2010 – appellant sentenced to five years, 10 months imprisonment (which included a period of 30 months due to the activation of two suspended sentences) reduced by ten months for time served to five years imprisonment with a non-parole period of three years and disqualified from holding or obtaining a driver’s licence for a period of ten years.
Whether sentence imposed was manifestly excessive – whether Magistrate erred in failing to apply principle of totality – whether low non-parole periods attached to previous suspended sentences could amount to a special circumstance under s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA).
Held: appeal dismissed – the sentence, although substantial, was not a crushing sentence in light of the appellant’s persistent disregard for the law and lengthy antecedent history.
Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 58, 58(4), referred to.
Mill v The Queen (1988) 166 CLR 59; R v Haydon [2006] SASC 238; R v V, RWK (2005) 91 SASR 200, considered.

SCHULTZ v POLICE
[2011] SASC 136
Magistrates Appeal

PEEK J. This is an appeal against sentence imposed by a Magistrate for a number of summary and minor indictable offences.
Introduction
The appellant was sentenced to total head sentences of five years, 10 months, reduced to five years imprisonment to take into account time already served in custody, with a non-parole period of three years and was disqualified from holding or obtaining a driver’s licence for a period of ten years in relation to a total of 15 offences committed over a period of about nine months up to the month of June 2010. The sentence included the activation of two separate suspended sentences, in total a period of 30 months imprisonment. The appellant appeals against the sentence on the grounds that it is manifestly excessive and that the Magistrate failed to apply the “totality” principle. For the reasons that follow, I consider that the appeal must be dismissed.
Summary of the offending
Prior to the present offending the appellant had committed a considerable number of criminal offences. Most recently, he had been placed on two separate suspended offences. On 28 April 2008, the appellant received a sentence of 18 months imprisonment with a non-parole period of ten months for driving a motor vehicle without consent, unlawful possession and driving dangerously to escape police pursuit. On 29 July 2008, the appellant received a sentence of 12 months imprisonment with a non-parole period of six months for three counts of property damage, driving dangerously to escape police pursuit and unlawful possession. Both of these sentences were suspended upon the appellant entering into two bonds, each for a period of two years.
The subsequent offending to which the appellant has now pleaded guilty was charged in two Informations dated 12 May 2010 and 4 June 2010. That offending, together with the sentences imposed by the Magistrate, was chronologically as follows:
On 3 September 2009, the appellant committed offences of theft and deception involving taking the car, number plates and wallet of the victim who had been living with the appellant for some period of time. The appellant also subsequently used the bank card of the victim to obtain money to which he was not entitled. Her Honour imposed a sentence of three months for this offending.
On 9 February 2010, the appellant committed the offences of assault and using a motor vehicle without obtaining the owner’s consent.[1] He went to the house of a person who the appellant claimed owed him money and punched him to his head, chest, back and his arms; he also hit him with a chair to his chest and kicked him several times to his body when he was on the ground. The appellant demanded that the victim sign his car over to him and drove it away. Her Honour imposed a sentence of 15 months imprisonment for this offending.
[1] The 12 May 2010 Information dealt only with the offending on 9 February 2010.
On 8 April 2010 the appellant committed the offence of being unlawfully on premises by entering premises of his former partner at which he had previously resided. On 15 April 2010, the appellant committed the offence of damaging a motor vehicle by breaking the windscreen of his former partner’s vehicle apparently due to frustration that his relationship with her had ended. Her Honour imposed a sentence of two months imprisonment for both of these offences.
On 20 April 2010, the appellant committed the offence of damaging a motor vehicle by further damaging his former partner’s vehicle. Her Honour imposed a sentence of one month imprisonment, to be concurrent with the sentence for the offences on 8 and 15 April 2010.
On 10 May 2010, the appellant committed the offences of using a motor vehicle without obtaining the owner’s consent, driving dangerously to escape police pursuit and driving while disqualified from holding or obtaining a licence. He took a vehicle from the CFS car park at Gumeracha, without obtaining the owner’s consent; he was then involved in a high-speed chase which ended at Mawson Lakes, where he abandoned the vehicle. The appellant was driving while suspended. Her Honour imposed a sentence of 15 months imprisonment for this offending.
On 15 May 2010, the appellant committed the offences of interfering with a motor vehicle without first obtaining the consent of the owner and theft. He illegally interfered with a motor vehicle in a hotel car park and stole some property from inside of it. The appellant was said to have been wandering around depressed at the time because of his relationship breakdown. Her Honour imposed a sentence of four months imprisonment.
On 3 June 2010, the appellant committed the offence of using a motor vehicle without obtaining the owner’s consent by taking a van apparently as a place in which to live. The appellant also committed the offences of two counts of unlawful possession by taking property from a suitcase that the appellant said he found near a railway station. Her Honour imposed a sentence of ten months imprisonment for these offences.
The total sentences
For the offences charged on the Information dated 4 June 2010, her Honour sentenced the appellant to a total period of imprisonment of 34 months which was reduced to 28 months for the pleas of guilty. For the offences charged on the Information dated 12 May 2010, her Honour sentenced the appellant to a total of 15 months reduced to 12 months for the pleas of guilty. To that combined total of 40 months, her Honour then added the periods of 12 months and 18 months being the two activated suspended sentences referred to above, both to be cumulative upon the 40 months which produced a total of 70 months or five years, 10 months imprisonment. Her Honour then reduced this to five years imprisonment, to take into account time already spent in custody. Her Honour fixed a non-parole period of three years.
Submissions of the appellant
The grounds of appeal are as follows:
1. The sentence is manifestly excessive.
2. The learned sentencing magistrate failed to correctly apply the principle of totality.
Counsel for the appellant submitted that although the Magistrate appropriately reduced the sentences on account of the appellant’s pleas of guilty, her Honour should have further reduced the sentence through the application of the totality principle as the final step in the sentencing process. He did not suggest that her Honour should not have activated the previously suspended sentences of imprisonment of two years and six months, but submitted that her Honour should have had regard to such period when considering the totality of all the sentences which the offender is now liable to serve.
Counsel for the DPP submitted that the learned Magistrate had proper regard to all relevant matters including the personal circumstances of the appellant.
The totality principle
I consider that the Magistrate had proper regard to all relevant matters and did not fail to consider the principle of totality. The principle of totality was described by the High Court in Mill v The Queen[2] by referring to a passage in Principles of Sentencing:[3]
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.’
[2] (1988) 166 CLR 59, 62-63.
[3] DA Thomas, Principles of Sentencing (Heinemann, 2^nd ed, 1979) 56-57.
The principle is well known. The fact that the learned Magistrate did not expressly refer to the principle in her sentencing remarks does not here lead to the conclusion that her Honour failed to consider the principle of totality and nor does it amount to an error of law.[4]
[4] R v Haydon [2006] SASC 238, [87].
The approach of her Honour in sentencing was systematic and transparent. Rather than imposing a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”) for all of the offending, her Honour imposed sentences for each group of offending and thus demonstrated how she came to her ultimate conclusion. Her Honour took something of an “arithmetical approach”, but I do not believe that she erred in so doing. Her Honour identified groups of offending charged on the 4 June 2011 Information as separate groups of offending occurring at different times and which involved multiple incursions into criminal conduct over a period of months. Her Honour did direct a measure of concurrency in her sentencing process.
I do not think that the Magistrate erred in approach in coming to the sentence that her Honour did and nor was the total excessive. The ultimate head sentence of five years was substantial but the offending displayed a significant and persistent disregard for the law. Having regard to the appellant’s lengthy antecedent history and the fact that he was subject to two suspended sentence bonds for similar offending at the time of committing the further offences, her Honour was correct in concluding that personal deterrence was a significant issue. The Magistrate stated:
[14]As already noted, these offences have been committed when you were already on suspended sentences. You have a lengthy criminal history. I do not propose to go into it in significant detail, however, you have previous convictions for driving disqualified, for assaults, for illegal interference of motor vehicles and of particular significance here, you have previously been convicted of being involved in driving dangerously in order to escape police pursuit. A number of these charges are of a similar kind to those for which you were on suspended sentences.
A crushing sentence?
In my view, the sentence of five years, which included the two periods of imprisonment previously suspended, could not be considered a crushing sentence. Merely because sentences, when added together, constitute a severe sentence, does not mean that the sentence should be been reduced after that total is arrived at. As the Chief Justice pointed out in R v V, RWK,[5] the principle of totality is not to be used as a routine argument for a further reduction of what is otherwise an appropriate sentence.
[5] (2005) 91 SASR 200, 203 [16].
Regarding the 30 months combined previous suspended sentences which the Magistrate revoked and ordered should be carried into effect, Mr Love faintly submitted that the low non-parole periods that attached to those sentences indicated that it was the original Magistrate’s intention that those non-parole periods were the periods that were intended to be served should the probationer breach those bonds and that this could amount to a special circumstance under s 58(4) of the Sentencing Act. Unsurprisingly, he did not refer to any authorities in support of that submission. Section 58(4) provides:
58—Orders that court may make on breach of bond
…
(4)     Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
…
(Emphasis added)
I do not consider that the length of the non-parole periods set by the original Magistrate for the 2007 offences could in the present case be considered special circumstances in deciding whether to reduce the lengths of the original suspended sentences. Obviously, the length of the original non-parole periods may be borne in mind when setting a new non-parole period but, once the suspended sentences were revoked, the original head sentences were to be carried into effect. The Magistrate here set a new non-parole period that applied to both the previous suspended sentences and the new offending and there is no complaint as to that non-parole period, and nor could there be in my view.
Conclusion and orders
The appeal must be dismissed. My proposed orders are therefore:
1Grant an extension of time in which to file the Notice of Appeal until 3 May 2011.
2Dismiss the appeal.