Stokes v The Queen - [2020] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
STOKES v THE QUEEN
[2020] SASCFC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
25 February 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
The appellant pleaded guilty in the Magistrates Court to 12 offences including serious criminal trespass, aggravated serious criminal trespass, three counts of aggravated robbery, two counts of making off without payment, property damage, contravention of firearms regulations, unlawful possession of a firearm, failing to answer questions, and attempting to escape custody. He was sentenced in the District Court to a head sentence of 18 years, five months and five days imprisonment with a non-parole period of 14 years and eight months. The appellant appeals against his sentence on the ground that the sentence and non-parole period are manifestly excessive.
Whether the sentence imposed was outside the range of permissible sentences – serious repeat offender – antecedent history – proportionality – protection of the community – personal and general deterrence
Held, per Lovell J (Peek J agreeing), granting permission to appeal but dismissing the appeal:
1. The sentence is not manifestly excessive.
Per Bampton J (dissenting):
1. The sentence is manifestly excessive.
Sentencing Act 2017 (SA) ss 26, 53, 54; Criminal Law (Consolidation) Act 1935 (SA) s 254(2a), referred to.
Veen v The Queen (No 2) (1988) 164 CLR 465; Gilshenan v The Queen [2019] NSWCCA 313; R v Karnage [2019] SASCFC 82; R v Copeland (No 2) (2010) 108 SASR 398; R v Standley [2016] SASCFC 141; R v Scott [2017] SASCFC 96; R v Place (2002) 81 SASR 395; R v Caplikas (2002) 223 LSJS 46; Postiglione v The Queen (1997) 189 CLR 295; Pearce v The Queen (1998) 194 CLR 610; Mill v The Queen (1988) 166 CLR 59; R v Palmer [2016] SASCFC 34, considered.

STOKES v THE QUEEN
[2020] SASCFC 9
Court of Criminal Appeal: Peek, Bampton and Lovell JJ

PEEK J: I would grant permission but dismiss the appeal. I substantially agree with the reasons of Lovell J.
BAMPTON J: Jason Lee Stokes pleaded guilty in the Magistrates Court to 12 offences comprising one count of serious criminal trespass, one count of aggravated serious criminal trespass, three counts of aggravated robbery, two counts of making off without payment, property damage, contravention of firearms regulations, unlawful possession of a firearm, failing to answer questions, and attempting to escape custody.
Mr Stokes was sentenced by a District Court Judge who imposed seven individual sentences, each reduced by 30 per cent on account of the guilty pleas. The Judge made orders for cumulation and concurrency, resulting in a head sentence of 18 years, five months and five days’ imprisonment.
As Mr Stokes has been convicted on at least three occasions of an offence to which Division 4 of the Sentencing Act 2017 (SA) (“the Act”) applies, he is by force of s 53(1)(b) of the Act a serious repeat offender.[1] Accordingly, pursuant to s 54(1) of the Act, the Judge had to impose a non-parole period at least four‑fifths the length of the sentence imposed. A non‑parole period of 14 years and eight months was fixed. The sentence was backdated to 3 May 2018 when Mr Stokes was taken into custody.
[1] Mr Stokes’ 17 June 2013 conviction for the offence of cultivation of a commercial quantity of controlled plants and his convictions for the aggravated robbery at Prouds the Jewellers at the Arndale Shopping Centre committed on 20 April 2018 and the aggravated serious criminal trespass committed on 29 April 2018 comprise three occasions for the purposes of s 53(1)(b) of the Sentencing Act 2017 (SA).
Mr Stokes in seeking permission to appeal complains that the sentence is manifestly excessive, highlighting the fact that the total starting points taken by the Judge for the individual sentences he imposed before reduction for the guilty pleas reveal a starting point of 28 years.
The Director acknowledges that, whilst the resulting sentence is a very significant sentence, no error in the exercise of the sentencing discretion has been demonstrated.
For the reasons that follow, I would grant permission to appeal, allow the appeal and resentence Mr Stokes.
Background
The offending can be summarized as follows, noting that six of the 12 offences committed by Mr Stokes were committed on 29 April 2018.
Serious criminal trespass in a place of residence at Alma
On 17 April 2018, Mr Stokes trespassed on an unoccupied residential premise at Alma (“the Alma residence”) and stole ammunition reloading equipment.[2] Mr Stokes attempted to burn the reloading equipment 12 days later which conduct forms the basis of the property damage offence detailed below. I will refer to the serious criminal trespass and the property damage as “the Alma offending”.
[2] Count 1 on DCCRM-19-113.
Aggravated robbery at Prouds
In the early hours of the morning on 20 April 2018, Mr Stokes broke a window of the Arndale Shopping Centre (“the centre”) and entered the centre holding a tomahawk. Upon being confronted by a cleaner, Mr Stokes ran towards the cleaner who attempted to run away saying, “please don’t hurt me”.
Following the interaction with the cleaner, Mr Stokes made his way to Prouds the Jewellers (“Prouds”) within the centre and smashed a window gaining access to a watch cabinet. Mr Stokes was confronted by a security guard, who had been alerted by the cleaner. The security guard yelled at Mr Stokes asking him what he was doing. Mr Stokes replied, “Hey, what are you fucking going to do?”. Mr Stokes then fled the scene having stolen and damaged watches to the value of $6,019.
This offence is aggravated because Mr Stokes used or threatened to use an offensive weapon when committing the offence. I will refer to this offending as the “Prouds robbery”.[3]
[3] Count 2 on DCCRM-19-10. Note: Count 1 on DCCRM-19-10 was withdrawn on 30 November 2018.
Making off without payment
On 25 April 2018, Mr Stokes made off without paying for petrol from a service station at Mile End.[4]
The six offences committed on 29 April 2018
[4] Count 1 on DCCRM-19-112.
Making off without payment
On 29 April 2018, Mr Stokes again made off without paying for petrol from a service station at Ridleyton.[5]
[5] Count 2 on DCCRM-19-112.
Aggravated serious criminal trespass and aggravated robbery at Prospect
After leaving the service station at Ridleyton on 29 April 2018, Mr Stokes made his way to a residence in Prospect (“the Prospect residence”) at about 10.30 am. Mr Stokes waited until a man and his son left the house before entering through the backdoor. However, a woman who was colouring her hair in the bathroom remained in the house. The woman heard someone enter the house and rummage around. Thinking it was her husband returning to collect something, she called out to him. Upon hearing the woman’s voice Mr Stokes, who was carrying a sawn-off firearm, and wearing a skullcap and mask, broke down the locked bathroom door, discovering the woman who was naked to the waist.
Mr Stokes ordered the woman to get down on the floor. She did not get down. Mr Stokes then asked the woman where her purse was. The woman put on a dressing gown and began to scream. Mr Stokes told the woman, “I do not want to hurt you, but I will if I have to. Just do what I say”. Mr Stokes took the woman to the kitchen, then the bedroom, searching for her purse. As the pair moved throughout the home, Mr Stokes kept the firearm aimed at the woman. The woman offered her watch to Mr Stokes, who refused and demanded jewellery. Eventually the woman offered containers of costume jewellery, which Mr Stokes took. She then gave Mr Stokes cash from the kitchen, and ran back to the bathroom to proffer an iPad whilst begging Mr Stokes to leave. Mr Stokes left the house and the woman ran into the street pleading for help from members of the public.
This offending is aggravated because a person was lawfully in the Prospect residence when the offence was committed and Mr Stokes knew of the person’s presence. It is also aggravated because Mr Stokes used or threatened to use an offensive weapon, namely a sawn-off firearm when committing the offence.
I will refer to this offending as the “Prospect offending”.[6]
[6] Counts 3 and 4 on DCCRM-19-10.
Property damage
After leaving the Prospect residence on 29 April 2018, Mr Stokes attended the Enfield Cemetery and attempted to burn, in order to destroy the ammunition re-loading equipment stolen[7] from the Alma residence. As stated above, this offence together with the serious criminal trespass in a place of residence at Alma is the “Alma offending”.
[7] Count 2 on DCCRM-19-113.
Aggravated robbery at Shiels
At approximately 12.45 pm on 29 April 2018, Mr Stokes returned to the centre and continued his offending at the Shiels jewellery store (“Shiels”). Shiels was staffed by two assistants who observed Mr Stokes attempting to break into a glass counter using a meat cleaver which became lodged in the glass. Mr Stokes managed to wrestle the meat cleaver free before demanding the assistants to, “fill the fucken bag”. The assistants noted that Mr Stokes also had what appeared to be a sawn-off firearm. One of the assistants managed to press the duress alarm. Mr Stokes fled with all the jewellery he could grab before police attended. Mr Stokes left the meat cleaver at the scene. His DNA on the meat cleaver led to his identification.
This offence of robbery is aggravated because Mr Stokes used or threatened to use offensive weapons, namely a sawn-off firearm and meat cleaver when committing the offence.
I will refer to this offending as the “Shiels robbery”.[8]
[8] Count 5 on DCCRM-19-10.
The arrest
Mr Stokes was arrested and taken into custody on 3 May 2018. A search of his home on 7 May 2018 recovered various items stolen from Prouds, Shiels, and the Prospect residence.
Despite initially refusing to answer any questions by the police, Mr Stokes later requested another interview. During the second interview on 9 May 2018, Mr Stokes admitted to the Prouds and Shiels robberies, the making off without payment offences, and the Alma and Prospect offending.
Firearm offences
Mr Stokes also told police during this second interview the location of the sawn‑off firearm. On 10 May 2018, he was taken from custody to show police where he had hidden the firearm in the sand dunes at Semaphore.
Mr Stokes was charged with offences relating to his possession of the sawn‑off firearm,[9] the means of its disposal,[10] and failing to answer questions in relation to the firearm. [11] I will refer to this offending as the “firearm offending”.
[9] Count 4 on DCCRM-19-134 contrary to s 41 of the Summary Offences Act 1953 (SA).
[10] Count 3 on DCCRM-19-134 contrary to s 35 of the Firearms Act 2015 (SA).
[11] Count 5 on DCCRM-19-134 contrary to s 55(5) of the Firearms Act 2015 (SA). Note: Counts 1 and 2 on DCCRM-19-134 were withdrawn on 8 February 2019.
Attempted escape
On 2 August 2018, whilst an inmate at the Adelaide Remand Centre, Mr Stokes sealed his cell door and a smoke alarm using wet toilet paper. He then burnt through the inner Perspex window to the cell, before attempting to burn through the outer glass window. As part of this attempt to escape, Mr Stokes had fashioned a 14-metre-long rope from blankets.[12]
[12] Count 1 on DCCRM-19-11.
Mr Stokes was unable to get through the outer window foiling his attempt to escape.
Victim impact statements
The woman who is the victim of the Prospect offending spoke of the sheer terror of having a masked man break down a door to get to her as she was half naked in the bathroom and proceed to hold her at gunpoint in her own home. She described having an irrational yet visceral fear of all men fitting the intruder’s description. She does not feel safe going into her own back garden for fear of intruders. Her heart pounds if anyone knocks on her front door and she grieves the loss of feeling secure in her own home. Having endured the intruder invading her privacy in the bathroom and making comments about her breasts, she feels particularly vulnerable showering or getting dressed. She had to have time off work to come to terms with the trauma she and her family went through.
The woman’s husband spoke about the distress suffered by his wife, himself, and their young son. He said they all suffered nightmares, but the night terrors suffered by their son were heartbreaking. He referred to having to borrow money to increase the security in their home and how it has become clear that it is going to take time for his family to return to normal.
Mr Stokes’ personal circumstances
Mr Stokes is now aged 44 and was raised by his mother and step-father. His step‑father was an alcoholic, who regularly physically disciplined him. Although Mr Stokes left home at the age of 15 he has maintained a relationship with his mother. He was educated to year 10 and has spent much of his adult life unemployed.
Mr Stokes has had a series of personal relationships. He has a daughter from one relationship, but has had little contact with her. He was in his most recent relationship for eight years, but that relationship came to an abrupt end when he was arrested for this offending.
As the Judge noted, Mr Stokes had at the time of sentencing spent 15 of the last 22 years of his life in custody. His history of criminal offending includes offences of breaking and entering, larceny, unlawful sexual intercourse, armed robbery of a pharmacy and robbery of a bank, torture involving acts of violence against a three‑year‑old child committed in Queensland, and cultivating a commercial quantity of a controlled plant.
Mr Stokes was released on parole in 2016. He did well originally and was employed at a meatworks in Bordertown for 10 months. However, he sustained a back injury and was retrenched. He then obtained work at Murray Bridge, but injured his wrist and now suffers carpal tunnel syndrome. He reports that whilst he was recuperating he was let go by his employer. Following this, as a result of loss of employment, financial and emotional pressures began to build up in his life.
He reacquainted with an old associate when he reported to Correctional Services and thereafter his life began to spiral out of control. He commenced using methylamphetamine and over the next six months became heavily addicted. He accumulated significant debts and was associating with antisocial peers. He began to commit offences to fund his drug habit and general lifestyle. Mr Stokes reported that the 12 offences underlying the sentence the subject of this appeal were committed whilst he was under the influence of drugs and alcohol.
The Judge received a report from the psychologist, Susan Heinrich, following her assessment of Mr Stokes. Ms Heinrich reported that Mr Stokes informed her that in the lead-up to his offending he was feeling rejected by his then partner and that she was planning to leave him. He did not want her to leave and he was trying to impress her to keep the relationship going. Ms Heinrich was of the opinion that Mr Stokes met the criteria for an alcohol abuse disorder and polysubstance use disorder. She also considered it was likely he used alcohol and drugs to mask depression he was suffering and that he possibly met the criteria for ADHD, which may have contributed to his impulse control difficulties at the time of his offending.
The sentence
The Judge sentenced as follows.
The Alma offending
In relation to the serious criminal trespass at the Alma residence, the Judge took a starting point of two years’ imprisonment reduced by 30 per cent to 16 months, three weeks and four days.
In relation to the offence of property damage whereby Mr Stokes burnt the property stolen from the Alma residence, the Judge took a starting point of one year’s imprisonment reduced by 30 per cent to eight months, one week and six days. Allowing partial concurrency for these two offences, the Judge utilised s 26 of the Act and imposed a single sentence of one year and six months.
The Prouds robbery
In relation to the aggravated robbery at Prouds, the Judge started with a sentence of six years reduced by 30 per cent to four years, two months, one week and six days. This sentence was ordered to be served cumulatively on the sentence imposed for the Alma offending.
Making off without payment offending
In relation to the two offences of making off without payment, the Judge utilised s 26 of the Act and imposed a single sentence for both offences. His Honour took a starting point of six months’ imprisonment reduced by 30 per cent to four months and one week. This sentence was ordered to be served cumulatively on the sentences for the Alma offending and Prouds robbery.
The Prospect offending
The Judge utilised s 26 of the Act and imposed one penalty for the aggravated serious criminal trespass and aggravated robbery at Prospect. His Honour took a starting point of 10 years’ imprisonment reduced by 30 per cent to seven years and ordered that this sentence be served cumulatively on the sentences for the Alma offending, the Prouds robbery and the making off without payment offending.
The Shiels robbery
In relation to the aggravated robbery at Shiels, the Judge took a starting point of six years which was reduced by 30 per cent to four years, two months, one week, and six days’ imprisonment. This sentence was ordered to be served cumulatively on the sentences imposed for Alma offending, the Prouds robbery, the making off without payment offending, and the Prospect offending.
The firearm offending
In relation to the three offences involving the sawn-off firearm, the Judge again utilised s 26 of the Act and imposed a single sentence for all three offences. His Honour commenced with a sentence of 10 months reduced by 30 per cent to seven months and ordered it be served concurrently with other sentences.
The attempted escape
Finally, in relation to the sentence for the attempted escape, the Judge took a starting point of one year and eight months’ imprisonment which he reduced by 30 per cent to one year and two months. This sentence, in compliance with s 254(2a) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA"), was ordered to be served cumulatively on the sentences imposed for the Alma offending, the Prouds robbery, the making off without payment offending, the Prospect offending, and the Shiels robbery.
The resulting head sentence is 18 years, five months and five days. Prior to fixing the non-parole period, the Judge considered whether the aggregate sentence which he had arrived at was just and appropriate. His Honour determined that, having regard to the totality of Mr Stokes’ criminal behaviour, the sentence was just and appropriate.
Mr Stokes’ submissions
It was submitted that the Judge correctly made refence to the principles relating to cumulative or concurrent sentences. However, in sentencing, Mr Stokes contended that the Judge made all of the sentences for the most serious offences cumulative on each other. It was submitted that this was despite the fact that, for example, the Prospect offending took place on the same day and for the same motive and purpose as the Shiels robbery.

It was submitted that there is no indication that, having mentioned the principles relating to concurrent and cumulative sentences, the Judge applied those principles to the matters before him. In particular, there is no explanation as to why the principles did not apply to permit at least partial concurrency in respect of the offences which occurred on the same day, which had the same mental element, and were committed for the same purpose.
It was pointed out that during sentencing submissions the prosecution had accepted that allowance for concurrency with respect to offences which were committed on the same date would be within the sentencing discretion.[13] It was also submitted that it is well-recognised that the punitive nature of lengthy sentences increases exponentially as individual sentences are accumulated.[14]
[13] Transcript of sentencing submissions, lines 9-13.
[14] R v Copeland (No 2) (2010) 108 SASR 398 at [103]-[105]; R v Standley [2016] SASCFC 141 at [44]‑[48].
The Director’s submissions
The Director submitted that there can be no doubt that the offences of aggravated robbery for which Mr Stokes was sentenced were serious offences. Such offending is prevalent and general deterrence is to be given considerable weight and protection of the public is of particular importance.
The Director submitted that the appropriate approach to sentencing for aggravated robbery is as enunciated in R v Place.[15] The penalty appropriate for such offences is in the order of six to eight years, although this standard is not an inflexible one and the Court in Place depreciated any categorisation of different forms that the offence can take for the purposes of determining sentence.
[15] (2002) 81 SASR 395.
The Director pointed out that the offences of aggravated robbery for which Mr Stokes was to be sentenced occurred on two days, just over a week apart. Whilst the motivation for offending was similar, the offences were quite distinct incursions into criminal activity insofar as they were separated by date, time of day, location, and type of target.
In relation to the offences committed on 29 April 2018, the Director submitted that the way in which the offences were committed was different in that the Prospect offending involved the commission of an aggravated serious criminal trespass in a place of residence in the morning and the use of a sawn-off firearm, followed some two hours later by Mr Stokes holding up a jewellery store using the firearm and meat cleaver.
It was submitted that even though offences may be committed over a relatively short period of time, accumulation is generally appropriate if the offences represent separate incursions into crime.[16] The Director pointed out that the accumulated length of some sentences may call for the application of the principle of totality, either by reducing the sentence or by partial concurrency, so that the total sentence is proportionate to the totality of the offending. The Director referred to the comments of Lovell J (with whom Stanley J and Parker J agreed) in R v Scott regarding totality:[17]
h)The principle of proportionality is exercised at two points during the sentencing process for multiple offences. It is first used in determining the appropriate sentence for each individual offence. It must then be used a second time in considering the cumulative effect of each of the sentences and whether the total sentence is proportionate to the criminality of the offences when viewed collectively. If required, the total sentence must be adjusted to ensure proportionality. This second application of the principle of proportionality is the application of the principle of totality.[18]
i)Aside from s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the principle of totality can be given effect in either of two ways. First, the sentencing Judge can fix appropriate sentences for each offence and consider cumulation and concurrency or second, the Judge may lower the sentence for any subsequent offences below that which would otherwise have been imposed.[19]
(Footnotes in original)
[16] R v Caplikas (2002) 223 LSJS 46.
[17] [2017] SASCFC 96 at [51].
[18] Postiglione v The Queen (1997) 189 CLR 295, 308.
[19] Pearce v The Queen (1998) 194 CLR 610 at [40]; Mill v The Queen (1988) 166 CLR 59.
The Director submitted that the penalties fixed for the individual sentences were not manifestly excessive when considered against the relevant maxima, the sentencing standard for some of the offences, the gravity of the offences, and Mr Stokes’ very poor criminal history. In particular, it was contended that the penalties for aggravated robbery committed on the two jewellery businesses were merciful having regard to the standard enunciated in Place, the circumstances of the offences themselves, and the fact that Mr Stokes had a prior conviction for armed robbery. It was pointed out that the Judge expressly stated that he needed to consider whether the aggregate sentence which he had arrived at was “just and appropriate”, having regard to the totality of Mr Stokes’ criminal behaviour. Having done so, the Judge was of the view that the sentence was just and appropriate and, therefore, no further discount or adjustment was required.
Consideration
Mr Stokes is a serious repeat offender whose spate offending committed on 17, 20, 29 April and 2 August 2018 demanded a severe sentence. His prospects of rehabilitation can only be considered poor. Despite such a poor prognosis, as with any offender sentenced to imprisonment, the Court does not know whether positive steps will be made toward a prosocial life as eligibility to apply for parole approaches.[20] As Kourakis CJ has held in R v Palmer, “judges neither have a crystal ball nor any special intelligence with which to make such predictions”.[21] Any release on parole is a matter for the Parole Board, which considers, amongst other matters, a prisoner’s conduct in custody as well the conditions of release that should be imposed.
[20] R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ.
[21] R v Palmer [2016] SASCFC 34 at [4].
On my assessment, bearing these matters in mind and taking into account Mr Stokes’ serious criminal conduct, the fact that he was – by force of s 53 of the Act – a serious repeat offender, his low prospects of rehabilitation, the need for personal and general deterrence, his age and his personal circumstances, the sentence imposed is manifestly excessive. A total starting point of 28 years for the offending committed by Mr Stokes was outside the available range.
I would grant permission to appeal, allow the appeal and set aside the sentence imposed in the District Court.
Conclusion
In resentencing, I keep in mind that the maximum penalties for the offences committed by Mr Stokes are:
·serious criminal trespass in a place of residence — imprisonment for 15 years;[22]
·aggravated robbery — life imprisonment;[23]
·aggravated serious criminal trespass in a place of residence — life imprisonment;[24]
·making off without payment — two years’ imprisonment;[25]
·property damage — 10 years’ imprisonment;[26]
·contravene provision of the Code of Practice of the Firearms Regulations — $50,000 or 10 years’ imprisonment;[27]
·unlawful possession — $10,000 or imprisonment for two years;[28]
·failing to answer questions — $20,000 or imprisonment for four years;[29] and
·attempted escape custody — two‑thirds of the maximum penalty of seven years’ imprisonment.[30]
[22] Criminal Law Consolidation Act 1935 (SA) s 170(1).
[23] Criminal Law Consolidation Act 1935 (SA) s 137(1).
[24] Criminal Law Consolidation Act 1935 (SA) s 170(1).
[25] Criminal Law Consolidation Act 1935 (SA) s 144(1).
[26] Criminal Law Consolidation Act 1935 (SA) s 85(3).
[27] Firearms Act 2015 (SA) s 35.
[28] Summary Offences Act 1953 (SA) s 41.
[29] Firearms Act 2015 (SA) s 55.
[30] Criminal Law Consolidation Act 1935 (SA) s 270A and s 254(1).
I consider the following individual sentences to be appropriate for the offences committed by Mr Stokes.
The Alma offending
In relation to the Alma offending, utilising s 26 of the Act, I would impose a sentence of two years’ imprisonment reduced by reduced by 30 per cent to one year, four months, three weeks, and four days’ imprisonment.
The Prouds robbery
In relation to the Prouds robbery, like the Judge, I would impose a sentence of six years’ imprisonment reduced by 30 per cent to four years, two months, one week, and six days. I would order that this sentence be served cumulatively on the sentence imposed for the Alma offending.
The Prospect offending
I would impose the same sentence as the judge for the Prospect offending. Using s 26 of the Act I would impose one penalty starting with 10 years reduced by 30 per cent to 7 years, and order that this sentence be served cumulatively on the sentences imposed for the Alma offending and the Prouds robbery.
The Shiels robbery
I would take the same starting point as the Judge for the Shiels robbery of six years reduced by 30 per cent to four years, two months, one week and six days’ imprisonment. I would order that two years of this sentence be served cumulatively on the sentences imposed for the Alma offending, the Prouds robbery offending, and the Prospect offending.
Making off without payment offending
In relation to the two offences of making off without payment, I would impose a single sentence for both offences of six weeks reduced by just under 30 per cent to one month, to be served concurrently with the other sentences.
The firearm offending
In relation to the three offences involving the sawn-off firearm, like the Judge, I would utilise s 26 of the Act and impose a single sentence for all three offences starting with a sentence of 10 months reduced by 30 per cent to seven months and order that it be served concurrently with other sentences.
The attempted escape
Finally, in relation to the sentence for the attempted escape, I would start with a sentence of 10 months’ imprisonment reduced by 30 per cent to seven months. This sentence, in compliance with s 254(2a) of the CLCA, must be served cumulatively on the sentences imposed for the Alma offending, the Prouds robbery, the Prospect offending, and the Shiels robbery.
In summary, the total starting point I would take for the sentences I would impose before the 30 per cent reduction and orders for concurrency and cumulation is 24 years and 10 months.
The resulting head sentence I would impose is 15 years, two months, 1 week and three days’ imprisonment. I would fix a non-parole period of 12 years and two months.
I have considered the cumulative effect of each of the sentences I would impose and whether the total sentence I have arrived at is proportionate to the criminality of Mr Stokes offending viewed collectively. I am satisfied that the total sentence I would impose is proportionate to both the objective criminality, the maximum penalties and Mr Stokes’ subjective circumstances.
LOVELL J:
Overview
Mr Stokes, the appellant, is currently 45 years old. At the time of sentencing, he had spent 15 of the last 22 years in prison. His offending has largely been of an extremely serious and violent nature but also includes serious drug offending. At previous sentencing hearings, Mr Stokes has expressed an intention to change his behaviour. However, over a period of approximately 12 days in April 2018 he committed, yet again, a series of extremely violent offences against vulnerable members of the public. Mr Stokes complains that the sentence imposed by the Sentencing Judge for that offending (and other but less serious offending) is manifestly excessive.
I’ve had the benefit of reading the judgment of Bampton J and I gratefully adopt her summary of the factual basis of the offending. Regrettably I am unable to agree with Bampton J’s disposition of this appeal. I would grant permission but dismiss the appeal; my reasons follow.
The sentence
The Sentencing Judge generally imposed individual sentences for each offence. Life imprisonment was the maximum penalty for four of the offences. Another offence carried a maximum penalty of 15 years imprisonment. During his sentencing remarks, the Sentencing Judge noted the legal principles relating to the imposition of concurrent or partially concurrent sentences. He applied those principles. Having imposed individual sentences, the total being 28 years imprisonment, the Sentencing Judge applied the appropriate discounts for the appellant’s early guilty pleas. The final sentence, after discounts, was 18 years, five months and five days. The Sentencing Judge considered the question of totality and found that the sentence was just and appropriate.
The submissions
Mr Mead SC, for the appellant, accepted that the Sentencing Judge had correctly identified the principles of concurrency and partial concurrency but submitted that the Sentencing Judge erred when applying those principles. To put that another way, Mr Mead SC submitted that the final sentence was manifestly excessive as the Sentencing Judge failed to give sufficient weight to those principles or, alternatively, failed to apply the principles of totality appropriately and reduce the sentence.
Ms Ingleton, for the respondent, submitted that it was open to the Sentencing Judge to apply the principles of concurrency or partial concurrency in the way he did. She submitted that the Sentencing Judge clearly applied the principles of totality before finally sentencing the appellant. Ms Ingleton submitted that the sentence was high, but necessarily so due to the type and seriousness of the offending and having regard to Mr Stokes’s prior criminal history. She submitted that the sentence was within the range of permissible sentences.
I accept Ms Ingleton’s submissions that no process error can be identified. It was open to the Sentencing Judge to apply the principles of concurrency as he did. The only question is whether the sentence imposed by the Sentencing Judge, in the circumstances, was so high that it was outside the available range of permissible sentences.
The appellant’s background and antecedent criminal history are relevant to this question. The Sentencing Judge placed emphasis on the appellant’s antecedent criminal history.
Legal Principles
At common law, an accused’s prior criminal history has always been relevant.
In Veen v The Queen (No 2),[31] Mason CJ, Brennan, Dawson and Toohey JJ said:[32]
…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
It is important that an offender not be punished again for his past offending.
[31] (1988) 164 CLR 465.
[32] Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478 per Mason CJ, Brennan, Dawson and Toohey JJ.
In Gilshenan v The Queen,[33] Johnson J (Macfarlan JA and Cavanagh J agreeing) observed:[34]
The principles in Veen v The Queen (No. 2) and Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [13]-[14] have been taken to establish that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence which circumstances do not encompass prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]. However, as was said in Veen v The Queen (No. 2), an antecedent criminal history is not relevant only to an offender’s claim of leniency. If an offender manifests in the commission of the offences for which sentence is to be passed “a continuing attitude of disobedience of the law”, then “retribution, deterrence and protection of society” play a part on sentence, although not in a manner which allows imposition of a sentence which is disproportionate to the objective gravity of the offences.
(Underlining added)
[33] [2019] NSWCCA 313.
[34] Gilshenan v The Queen [2019] NSWCCA 313 at [60].
Operation of s 54 of the Sentencing Act 2017 (SA)
It was accepted before the Sentencing Judge and on appeal that Mr Stokes is, by operation of s 53 of the Sentencing Act 2017 (SA) (‘the Act’), a serious repeat offender. Prior to the enactment of the Act, the question of whether an offender should be declared a serious repeat offender was a matter decided by the court. The Act now deems an offender to be a serious repeat offender if the criteria in s 53 of the Act are met. The court has no discretion.
The Act generally governs the sentencing process. Pursuant to s 11(1)(d) of the Act, a defendant’s offending history is a factor relevant to the sentencing exercise. Section 54 of the Act applies to sentencing serious repeat offenders.
Section 54 of the Act relevantly states:
54—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non-parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)The person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
The intent and operation of s 54 of the Act requires a sentencing court to approach sentencing a serious repeat offender differently to an offender not captured by the criteria in s 53 of the Act.
A court, when sentencing a serious repeat offender, is not bound to ensure it imposes a proportionate sentence. The section gives no further guidance; a sentencing court is free to depart from what has been regarded, at common law, as the fundamental guiding principle when sentencing offenders.
Apart from the question of proportionality, s 54 of the Act also changes the weight to be given to various sentencing factors. The approach to sentencing a serious repeat offender pursuant to s 54 of the Act was discussed in R v Karnage.[35] The Court considered the operation of s 54(1) and (2) of the Act and their application to the sentencing process. Nicholson J (Kelly and Hinton JJ agreeing) noted that when sentencing a person who is not a serious repeat offender, the paramount consideration is protecting the safety of the community. For such an offender, personal and general deterrence are, pursuant to s 4 of the Act, secondary purposes. However, s 54 of the Act mandates a different approach. The paramount consideration, when sentencing a serious repeat offender, is protecting the safety of the community and personal and general deterrence. As Nicholson J observed:[36]
The legislature has characterised the appellant as a serious repeat offender and, as such, he is to be sentenced in accordance with the subsection 54(1) parameters. Underlying, this is the legislature’s determination that, for such an offender, protecting the safety of the public and personal and general deterrence is the paramount consideration. In order to avoid this outcome, the appellant must demonstrate that his personal circumstances are so exceptional as to displace the paramountcy of this consideration. The appellant’s personal circumstances are to be considered in the context of all of the factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the risks of re-offending, the need to protect the public and the prospects for rehabilitation.
(Underlining added)
[35] [2019] SASCFC 82.
[36] R v Karnage [2019] SASCFC 82 at [70].

To put that another way, s 54 of the Act elevates personal and general deterrence to being part of the paramount consideration rather than “secondary” purposes.
The prosecutor, in her sentencing submissions, highlighted the operation of s 54 of the Act to the Sentencing Judge. The prosecutor stated:[37]
In relation to the question of proportionality. Having regard to the number of offences for which the defendant is to be sentenced, the maximum penalties for those offences, the nature of the offences, and given that the court must impose a non-parole period which is at least four-fifths of the length of the sentence, in my submission your Honour will have sufficient scope to impose an appropriate sentence upon the defendant which reflects the very serious nature of his crimes and the need for significant personal and general deterrence in this matter whilst still applying the principle of proportionality.
[37] T14.6-17.
The position of the prosecution was that the Sentencing Judge should impose a proportionate sentence for the offending. Whilst that was an appropriate position for the prosecution to adopt, it could not bind, nor was it suggested that it did bind, the Sentencing Judge. The Sentencing Judge, under s 54(1)(a) of the Act was not bound to ensure that he imposed a proportionate sentence for the offending.
Before the Sentencing Judge, counsel for Mr Stokes accepted that Mr Stokes was a serious repeat offender and that his non-parole period had to be at least four-fifths the length of the sentence; however, she made no submissions regarding the effect of s 54(1)(a) of the Act. The appellant did not attempt to persuade the Sentencing Judge, pursuant to s 54(2) of the Act, that s 54(1) of the Act should not apply.[38]
[38] It is highly unlikely that such an application would have been successful.
In the event, the Sentencing Judge appears to have applied the principles of proportionality when fixing the sentence. This approach was open to the Sentencing Judge.
The appellant’s prior criminal history
It is necessary to outline the appellant’s antecedent criminal history.
The appellant was born in February 1975. As outlined by Bampton J, he had a difficult childhood. In 1994, 1995 and 1996 the appellant committed a number of relatively minor offences. He received various penalties including a number of suspended prison sentences.
Importantly, on 26 October 1997, the appellant committed an armed robbery. He entered a pharmacy and, armed with a knife, stole over $3,000. On 19 November 1997, he committed a robbery. The appellant entered a bank and demanded moneys stating in a note that he had a gun. He stole over $6,000. The appellant, having committed the offending with his co-offender R, fled to Queensland where he committed further offending which I will deal with later. Having been apprehended and sentenced to prison in Queensland, the appellant was extradited to Adelaide and sentenced on 11 April 2002 for the robbery offences. As this offending preceded the Queensland offending I will deal with it first.
The appellant was sentenced by Lowrie DCJ. His Honour noted that the appellant was contrite and remorseful. He was despondent because of the lengthy term of imprisonment imposed in Queensland. The Sentencing Judge noted that the appellant “needed” money as he was spending all his money “on dope”. His Honour particularly noted that in response to a psychologist questioning the appellant about the probability of him reoffending the appellant replied:
Never. With all the crime that I’ve done now, what I’m in for now I can’t personally forgive myself for what I done to people. When I get out I want to have full-time employment. Do courses in jail that I’m bound to do like anger management so I don’t re-offend. Stay away from situations and socialising with people who might encourage me to take drugs again.
The appellant was sentenced to a total of six years imprisonment for the two offences to be served cumulatively upon his Queensland sentence.
Returning to the narrative, the appellant fled to Queensland in 1997 with his co-offender R. On 20 October 1998, in the Maroochydore District Court, the appellant was convicted of torture, cruelty to children under 16, two counts of grievous bodily harm, three counts of assaults occasioning bodily harm and five counts of deprivation of liberty. These were representative charges. He was sentenced to a term of imprisonment of nine years and six months. On appeal by the Attorney-General, the sentence was increased to a term of imprisonment of 11 years.
It is necessary to outline the details of the offending. The appellant was living in Queensland with R who had a three-year-old child. Over a period of approximately 16 days, the appellant and R inflicted a number of injuries on the child. The Queensland Court of Appeal[39] described the injuries observed by the director of paediatrics at the Nambour Hospital to “enable the level of violence against the child to be comprehended”[40]. The injuries were:[41]
[39] R v R & S; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 51.
[40] R v R & S; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 51 at 53 [7] per White J.
[41] R v R & S; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 51 at 53 [7] per White J.
1.   Orthopaedic injuries:
•        Transverse fracture of left femur with external swelling and deformity of pelvis and left thigh.
•        Fracture of the right superior pubic ramus (this was identified on a skeletal survey at a later stage as an older healing fracture). [Not the subject of a separate charge]
2.   Soft tissue injuries:
•        Multiple bruises to face. Bilateral 'black eyes'. Large haematoma on left side of forehead. Bruises over back and lower limbs. The ages of the bruises varied from old and fading to recent.
•        8-10 cm long laceration on left side of top of scalp, with hair matted in wound with partial healing.
•        Multiple cigarette burns to body. There were at least 76 separate burns, affecting his legs (6), genitals (6), scalp, eyes, ears, trunk and upper and lower limbs. The left lower limb and left forearm could not be visually examined because of bandaging at this stage. The ages of the burns varied from old and healed to very recent. [The cigarette burns were counted in Casualty and were in excess of 100].
•        Soft tissue swelling and deformity to periorbital tissues, mouth, lips, face and scalp.
3.   Neurological injuries:
•        Traumatic head injury. The CT Scan of the brain reported a large left scalp haematoma. There was a band of hyper density in the right frontal region which may represent petechial haemorrhages. There was prominence of the basal cisterns and slight prominence of the ventricular system.
4.   Haematological complications:
Matthew was anaemic when his full blood count was performed on 29/12/1997, his haemoglobin level being 63. I believe this was multi-factorial and contributed to by blood loss.
5.   Infective complications:
Although he only developed fever on 31.12.1997, his wounds were infected at presentation, and the process of puss formation and abscess development were occurring before presentation at hospital. Subsequently these developed into puss collecting below the scalp laceration and between the ends of the fractured portions of the femur (osteomyelitis).
6.   Malnutrition:
Matthew demonstrated features of protein calorie malnutrition, with poor fat stores and muscle bulk. [He told a doctor at the hospital that he had had nothing to eat on 28 December or on the previous day].
7.   Long-term psychological impact of his trauma:
This area requires assessment and treatment by an experienced child psychiatrist or psychologist.
Three of these injuries were potentially life-threatening:
(1)The fractured femur, which untreated can lead to osteomyelitis, septicemia, and fat embolism, each of which can be fatal;
(2)The head injury demonstrated on CT would have required substantial force; a potentially life-threatening head injury;
(3)The laceration of the scalp, which could cause profuse bleeding to the point of anaemia, and potentially cardiac failure, as well as secondary infection with subsequent abscess formation, and the potential for septic emboli, or local invasion of infection which can lead to septicemia, osteomyelitis of facial/scull bone, meningitis, cerebral abscess or cavernous sinus thrombosis.
The child was locked in the small caravan cupboard for lengthy periods of time and was often tied up by the appellant and R, even after his leg had been broken. The cruelty charge involved a failure to get treatment for the injuries: lack of treatment resulted in blood loss which contributed to anaemia and infective complications. Furthermore, he was malnourished and had not eaten for two days when he was rescued. The offences occurred over a 16-day period.[42] The medical evidence was that the pain from the broken femur would have been excruciating.[43] Unsurprisingly, the Court described the violence as appalling.
[42] R v R & S; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 51 at 65 [53] per McMurdo P.
[43] R v R & S; Ex parte Attorney-General (Qld) (1999) 106 A Crim R 51 at 57 [19] per White J.
As mentioned, the appellant, while serving his sentence in Queensland, was extradited to South Australia. The sentence imposed by Lowrie DCJ in 2002 for the two robberies was to be served cumulatively upon the 11-year sentence imposed in Queensland.
In 2009, the appellant was released on parole. On 17 June 2013, the appellant was sentenced by Chivell DCJ in the District Court of South Australia in relation to one count of cultivating a commercial quantity of controlled plants for sale, namely cannabis, and one count of possessing prescribed equipment. Matters mentioned by his Honour included “cannabis dependence” and “dire financial need”. The appellant’s offending breached his parole conditions. The appellant pleaded guilty; his Honour found the appellant to be contrite and remorseful.
Importantly, Chivell DCJ said the following to the appellant during the course of sentencing:
Mr Stokes, you certainly cannot continue to get into trouble whenever your finances become a problem, and you cannot continue to turn to illicit drugs in times of stress. You are going to have to try to learn to deal with the difficulties which everyone will face in their lives without resorting to that sort of behaviour, because if you do, all you have to look forward to is longer and longer periods in custody, and that is a miserable prospect. But for a person who has been in custody as you have, you know only too well what that holds in store, so it is up to you to break this cycle of offending and make a decent life for yourself. You still have plenty of time to do that.
The appellant was sentenced to a term of imprisonment of three years cumulative upon the unexpired term of parole.
The appellant was released on parole in 2016.
Initially the appellant did well. However, eventually financial and emotional pressures built up and the appellant began to use methamphetamine. His life began to spiral out of control leading to the offending the subject of this appeal.
The facts of the offending are set out in Bampton J’s judgment and I gratefully adopt the summaries. I simply emphasise that in relation to the offending on 20 April 2018 at the Arndale Shopping centre, the appellant threatened a person with a tomahawk and he then threatened a security guard with a hammer. During the offending on 29 April 2018 at Prospect, the appellant threatened the victim with a sawn-off shotgun and later that day, again at the Arndale Shopping Centre, threatened employees of a jewellery store with a sawn-off shotgun.
The Sentencing Judge’s remarks
The Sentencing judge delivered comprehensive remarks when sentencing the appellant. In relation to the offending at Prospect, the Sentencing Judge said:
It is difficult to imagine a more terrifying episode for an innocent and unsuspecting person to have her home and privacy invaded by a masked stranger brandishing a shotgun, demanding valuables and threatening to harm her if she did not cooperate. It is trite to observe that people should be entitled to feel safe when in their own homes. Your actions violated in the most destructive manner that sense of safety and security that members of the community should be entitled to feel within their own homes. It was arguably more a matter of good fortune rather than anything else that more dire consequences did not ensue. Your offence needs to be condemned in the strongest possible terms.
The Sentencing Judge acknowledged the appellant’s personal circumstances and considered that the appellant had become, to a degree, institutionalised. The Sentencing Judge noted the early pleas of guilty and that the appellant was entitled to up to 30% discount for those pleas. Importantly, the Sentencing Judge observed:
Although I accept that you have expressed remorse for your offending as evidenced, amongst other things, by a letter to one of your victims and cooperated fully with the police upon being apprehended, as the DPP submitted, there appears to have emerged somewhat of a pattern in your past criminal history which discloses (but sadly only after the fact) an insight into your criminality and a subsequent willingness to admit to your crimes in a timely fashion. Past history, however, has shown that these attitudes have not, up to now, led to you turning away from your criminal ways on a permanent basis.
You have an unenviable criminal history with offences spanning the criminal calendar and, relevantly, including armed robbery, damaging property and other crimes of violence for which you have received sentences of imprisonment both suspended and to be immediately served. It is unnecessary to refer, in detail, to your past offending but the torture offence involving serious acts of violence in Queensland against a three-year-old child in 1997 and the armed robbery and robbery against a pharmacy and a bank, respectively, in this State in 1997 tend to put your continuing violent behaviour, as manifested in at least some of your current offences, in some context.
The Sentencing Judge took into account the fact that the appellant was a serious repeat offender. He imposed individual sentences for the offences. After calculating the final sentence, the Sentencing Judge considered the question of totality but found the sentence was just and appropriate. The final sentence was 18 years, five months and five days.
Discussion
As mentioned, I do not consider that the approach of the Sentencing Judge discloses any process error. The only question is whether there has been an outcome error and the sentence imposed is outside the range of permissible sentences.
The Sentencing Judge referred to the appellant’s criminal history as “unenviable”. However, the Sentencing judge was careful to acknowledge the correct use of that history and to not sentence him again for his past offending. The Sentencing Judge correctly observed that the past offending put into context the appellant’s “continued violent behaviour”. The Sentencing Judge noted the pattern of the appellant appearing to have insight into his offending, contrition upon being caught and expressions of a determination to rehabilitate. As the Sentencing Judge observed “these attitudes have not, up to now, led to you turning away from your criminal ways on a permanent basis”.
The Sentencing Judge placed weight on the need to protect the community from the appellant’s violent behaviour; he also gave substantial weight to personal and general deterrence. In my view, he was, given the operation of s 54 of the Act, correct in doing so.
The appellant has an appalling record of violence. The current offending reveals that the appellant has a continuing attitude of disobedience to the law and, when under pressure, resorts to threatening and violent offending against vulnerable members of the public. The appellant, when in prison and drug free, shows remorse and states an intention to change. It appears he is incapable of doing so once out of prison.
The sentence can be regarded as severe, but in my view, taking into account the operation of s 54 of the Act, it is within the range of permissible sentences. I would give permission but dismiss the appeal.