WHEELER v Police
[2013] SASC 80
•31 May 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHEELER v POLICE
[2013] SASC 80
Judgment of The Honourable Justice White
31 May 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
A Magistrate sentenced the appellant to 26 months imprisonment, with a non-parole period of 16 months, for nine separate offences: three offences of driving while disqualified; four offences of breaching a condition of bail; one offence of resisting arrest; and one of threatening to cause harm - the appellant complained that the sentence is manifestly excessive.
Held (dismissing the appeal):
(1) The appellant's extensive criminal history meant that he was not entitled to any leniency on account of good character and personal deterrence had to be prominent in the sentencing (at [19]).
(2) The Magistrate's notional sentences for each of the pairs of driving while disqualified and breaching a condition of bail were within an appropriate range in the appellant's circumstances - the fact that the third pair was committed after the appellant had been apprehended for the earlier offences was an aggravating factor, with the appellant choosing to offend again in a seemingly contemptuous way (at [29]-[30]).
(3) Given the multiple incursions into criminal conduct, the Magistrate was justified in determining that the notional sentences should be served cumulatively (at [31]).
(4) The Magistrate's notional sentence of 12 months imprisonment for the threaten harm offence should not be characterised as manifestly excessive (at [44]).
(i) The Magistrate was justified in proceeding on the basis that the incident must have been distressing to the victims, despite the absence of victim impact statements - the absence of evidence that the victims suffered psychological harm was not a circumstance of mitigation (at [38]).
(ii) This was not a case in which the appellant's intoxication was mitigatory - the appellant's criminal history indicates that violent conduct is not out of character for him and, in many respects, his intoxication may have made the threat more frightening (at [40]).
(iii) Licensees and the staff of licensed premises are entitled to expect the protection of the law in the discharge of their duties under the Liquor Licensing Act 1997 (SA) - accordingly, it is appropriate that sentences imposed for offending in those circumstances reflect this added need for protection and operate as a suitable general deterrent to others (at [43]).
(5) The Magistrate was correct in deciding not to reduce the aggregate of 26 months on account of the totality principle - there is no feature in the present case which justified a reduction on this basis, and the aggregate of 26 months is not so high as to be crushing (at [53]).
Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 19, s 19AC; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 19; Liquor Licensing Act 1997 (SA) s 108; Motor Vehicles Act 1959 (SA) s 91; Summary Offences Act 1953 (SA) s 6, referred to.
Markarian v The Queen (2005) 228 CLR 357; Eldridge v Bates (1989) 51 SASR 532; Coombe v Douris (1987) 47 SASR 324; Police v Cadd (1997) 69 SASR 150; Pearce v The Queen (1998) 194 CLR 610; Attorney-General v Tichy (1982) 30 SASR 84; Stehbens v Police [2004] SASC 227; R v Sewell & Walsh (1981) 29 SASR 12; R v Lane (1990) 53 SASR 480; A, MC v Police (2008) 102 SASR 151; Hasan v The Queen (2010) 31 VR 28; Aleksic v Heath; Rundle v Heath (Unreported, Supreme Court of Western Australia, Walsh J, 13 November 1997); Pearce v Bancroft (Unreported, Supreme Court of Western Australia, Franklyn J, 12 April 1989); R v E, AD (2005) 93 SASR 20, considered.
WHEELER v POLICE
[2013] SASC 80Magistrates Appeal
WHITE J. The appellant appeals against a single sentence of imprisonment imposed in the Magistrates Court for nine separate offences. The sentence was imprisonment for 26 months with a non‑parole period of 16 months. The appellant’s principal complaint is that the head sentence is manifestly excessive.
The Magistrate identified, as is appropriate, the way in which he reached the single sentence, imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). He did this by identifying the notional starting points for sentences for several of the individual offences together with the reductions which he allowed to each on account of the appellant’s pleas of guilty.
The appellant’s offences and the Magistrate’s approach are summarised in the following table:
Date
Offence Description
Statutory Provision
Maximum Penalty
Starting Point for Notional Sentence before Reduction for Pleas of Guilty
Notional Sentence
19.4.12 Excess Speed r 20,
ARR
$330 $300 $300 Drive Disqualified s 91(5), MVA Imp 2yrs 4mths imp 3mths imp Breach Bail s 17(1), Bail Act $10,000 or imp 2yrs 2.5.12 Threaten Harm s 19(2), CLCA Imp 5yrs 16mths imp 12mths imp 17.6.12 Attend Barred Premises s 125C(1), LLA $1,250 $300 $300 12.9.12 Drive Disqualified s 91(5), MVA Imp 2yrs 4mths imp 3mths imp Breach Bail s 17(1), Bail Act $10,000 or imp 2yrs 1.10.12 Resist Arrest s 6(2),
SOA
$2,500 or imp 6mths “5 or 6 wks” imp 1mth imp 3.11.12 Attend Barred Premises s 125C(1), LLA $1,250 $400 $400 26.11.12 Breach Bail s 17(1), Bail Act $10,000 or imp 2yrs “5 or 6 wks” imp 1mth imp 24.1.13
Drive Disqualified
s 91(5), MVA
Imp 2yrs
8mths imp
6mths imp (& licence disqual re drive disq charge)
Breach Bail s 17(1), Bail Act $10,000 or imp 2yrs
TOTAL
26mths imp
There is no appeal against the separate fines imposed on the appellant for the speeding offence and for the two offences of attending premises from which he was barred.
The appellant’s complaints focussed on the notional sentences for the three pairs of driving while disqualified and breach of bail offences, as well as on the notional sentence for the offence of threatening harm.
The principles to be applied on an appeal of the present kind are well established. The appellant must establish that the Magistrate erred in principle, allowed irrelevant matters to affect his decision, failed to have regard to a relevant matter, or mistook the facts. If none of those matters can be shown, the appellant must show that the sentence was unreasonable or plainly unjust.[1]
[1] Markarian v The Queen [2005] HCA 25 at [25]; (2005) 228 CLR 357 at 370-1.
The Driving While Disqualified Offences
On 12 December 2011, the appellant was sentenced in the Adelaide Magistrates Court for several offences. One of the offences was that of driving dangerously to escape police pursuit.[2] The Court imposed a single sentence of imprisonment for three months but suspended that sentence on the appellant entering into a bond to be of good behaviour for 12 months and to comply with other conditions. In addition, the Court disqualified the appellant from holding or obtaining a driver’s licence for a period of two years. That disqualification was current at the time of each of the appellant’s drive while disqualified offences.
[2] Contrary to s 19AC of the Criminal Law Consolidation Act 1935 (SA).
Just over four months later, on 19 April 2012, the appellant was detected driving a car on St Vincent’s Highway at Stansbury. He said that he had borrowed the car in order to visit his sick father on Yorke Peninsula. Given that the appellant was then residing at Woodcroft, this seemed to be an admission that he had driven from Woodcroft to Yorke Peninsula. The appellant’s explanation to the police was that he was “just dropping his old man off at Edithburgh”. This was the first of the offences of driving while disqualified.
The conduct of the appellant also amounted to a breach of a condition of a bail agreement of 8 February 2012 which required him not to be seated in the driver’s seat of any vehicle while disqualified from holding a driver’s licence.
The second of the drive disqualified offences was committed on 12 September 2012. The police observed the appellant driving a car on Bailey Street at St Marys. After turning from Bailey Street into Walsh Street, the appellant alighted from the car and attempted to walk away. When spoken to by the police he denied that he had been driving the car. However, he was identified as the driver and, in addition, had the keys to the car in his pocket.
The appellant’s driving of the car on this occasion breached a condition of a further bail agreement of 28 May 2012 which prohibited him from occupying the driver’s seat of a motor vehicle and from driving a motor vehicle.
The third offence of driving while disqualified was committed on 24 January 2013. After an appearance in the Adelaide Magistrates Court the appellant drove away in a utility The appellant said that he was working on that day and had overlooked that he was due to attend in Court at 10.00 am. On being reminded that he had to attend, he borrowed the utility and drove to Court. It seems that the appellant was aware while driving that he was being observed by police.
It was not suggested that there was any necessity for the appellant to drive a vehicle on any of these three occasions. Instead, he chose to drive in order to meet his own convenience. His driving on the third occasion had an element of contempt as it involved driving to the very Court which had imposed the licence suspension to which he was then subject.
The Threaten Harm Offence
At about 3.45 am on 2 May 2012 the appellant was at the Berkeley Hotel in Hindley Street in the city. A bar attendant refused him service because of his intoxicated state. The appellant then threatened her and other staff members. He did so by banging his fists on the bar and yelling, saying that he was a member of the Finks Motorcycle Club. Then, using a profanity, he threatened harm to the bar attendant’s family, telling her that he was “above the law”. The bar attendant feared for her safety. When a patron of the hotel intervened, the appellant responded loudly and abusively, again using a profanity and leaning over her in an intimidatory manner. This caused the patron to leave the hotel because of a fear of being hurt.
I note that the appellant is a large man, being some 185 cm tall and weighing some 95 kgs. His reference to the Finks Motorcycle Club was a seeming attempt to add menace to his threats.
The appellant did not dispute the accounts of the bar attendant and patron but said that he was heavily intoxicated at the time.
Background
The appellant is 33 years old and was born in country South Australia. He left school at the age of 15 years.
The appellant has an extensive criminal history, having committed more than 170 offences before his commission of the current offences. As an adult, the appellant has been convicted of some 18 separate offences of violence. In addition, he has 14 convictions for failing to comply with a bail agreement. He has numerous convictions for traffic offences and offences of dishonesty. The appellant has been sentenced to imprisonment on 13 separate occasions. On three of those occasions, the sentences were suspended upon the appellant entering into a bond to be of good behaviour. It is a matter of aggravation that all but two of the offences for which the Magistrate sentenced the appellant were committed whilst he was subject to the suspended sentence bond into which he entered on 12 December 2011.
The appellant was not, of course, to be sentenced again for his prior offending. However, his dismal criminal history did mean that he was not entitled to any leniency on account of good character, and that considerations of personal deterrence had to be prominent in the sentencing.
Alleged Error of Law
In relation to the offences of driving while disqualified, the appellant initially submitted that the Magistrate’s starting point of imprisonment for eight months for the third offence was an error of law because it exceeded the applicable maximum of six months imprisonment. However, that is the maximum for a first offence. The maximum for a “subsequent offence” is imprisonment for two years. Counsel acknowledged that the appellant’s three previous convictions for driving while disqualified (committed on 29 September 1997, 13 March 1998 and 17 August 1998 respectively) meant that each of the offences for which the Magistrate sentenced the appellant was a “subsequent offence”. Thus the applicable maximum penalty was imprisonment for two years and the Magistrate did not make the error of law which counsel initially attributed to him.
Alleged Manifest Excess: The Notional Sentences for Driving While Disqualified
The authorities have established a number of principles concerning sentencing for the offence of driving while disqualified. Many of the authorities have considered sentences imposed for first offences, but several of the established principles are pertinent in the present case:
1.The offence of driving while disqualified is to be regarded as a serious offence, reflected in the fact that the maximum penalty for a first offence is six months imprisonment and for a second offence imprisonment for two years.[3]
2.The seriousness of the offence lies in the defiance of the law which it involves and in its nullification of the effect of an order of disqualification imposed for the protection of the public.[4] In Police v Cadd Doyle CJ regarded the elements of deliberate disobedience of the law, coupled with the effect which widespread commission of the offence has in undermining disqualification as an effective punishment, as being the most weighty matters in sentencing for the offence of driving while disqualified.[5]
3.Contraventions of s 91(5) can be difficult to detect which means that considerations of personal deterrence are important.[6]
4.Often the offence of driving while disqualified will be committed by persons who have chosen to take a calculated risk and this too adds to the importance of deterrence as an element in the sentencing.[7]
[3] Eldridge v Bates (1989) 51 SASR 532 at 533-4.
[4] Coombe v Douris (1987) 47 SASR 324 at 325; Eldridge v Bates (1989) 51 SASR 532 at 533; Police v Cadd (1997) 69 SASR 150 at 159-160, 162.
[5] Police v Cadd (1997) 69 SASR 150 at 163.
[6] Ibid at 162, 173.
[7] Ibid at 162.
The Full Court of five in Police v Cadd also considered the circumstances in which a sentence of imprisonment imposed for a contravention of s 91(5) may be suspended. No question of suspension arises in the present case. Counsel for the appellant accepted that service of an immediate period of imprisonment was appropriate. That was a proper concession. The present appeal is therefore not an occasion to review the principles relating to suspension of sentences of imprisonment imposed for offences of the present kind.
As a matter of general approach, I refer to the following passage in the judgment of Doyle CJ in Police v Cadd:
An offender who is aware that he or she is in breach of the law, who has no substantial excuse for the breach, in effect admits to indifference to the law’s requirement in favour of the offender’s own convenience. The need to deter others from committing the same offence, and the corrosive effect upon licence disqualification as a punishment of this offence, combine to require severe punishment in such cases unless the law is to be mocked. But the circumstances of the offence and the circumstances of the offender may disclose matters which provide a basis for a less severe approach, quite apart from the relevance of the circumstances of the offender to the question of suspension.[8]
[8] Ibid at 167.
The majority in Police v Cadd considered that the punishment for a contravention of s 91(5) should be imprisonment in the ordinary case of contumacious offending by a first offender, but allowed that the circumstances of the offending or of the offender or both may indicate that some less severe form of punishment is appropriate.[9]
[9] Ibid at 171.
The Magistrate’s characterisation of the appellant’s driving while disqualified as contumacious was inevitable. His conduct revealed, as the Magistrate recorded, an arrogant and contemptuous attitude towards the law.
Counsel for the appellant emphasised the matters of mitigation which had been put to the Magistrate. These were that the appellant had “started to turn his life around”; that he recognised that he was “getting too old for this stuff”; that he had been in a stable domestic relationship for a period of about 12 months; and that he was establishing his own demolition business which evidenced some acceptance of regularity and responsibility in his life. These circumstances warranted, counsel submitted, the appellant being given “one last chance”.
Although one would not wish to rule out the prospect of a person with a record as poor as that of the appellant achieving a positive rehabilitation, it is understandable that the Magistrate viewed these submissions with some circumspection. The appellant had been in his stable domestic relationship at the time of each of the offences and it had not inhibited his offending; he had been given numerous “last chances”, most recently on 12 December 2011 when a three month sentence of imprisonment was suspended; he had been warned by courts on no less than 11 separate occasions (and as recently as 12 December 2011) of the consequences if he did drive while disqualified; and the appellant’s offending, particularly that on 24 January 2013 (only one month before being sentenced), evidenced a contemptuous attitude towards the law.
The Magistrate took as his starting point for the first and second pair of offences of driving while disqualified and breaching a bail agreement a notional sentence of imprisonment of four months. There was a substantial overlap between the conduct constituting the offence of driving while disqualified, on the one hand, and the conduct (being seated in the driver’s seat of a vehicle) constituting on each occasion the breach of the bail condition, on the other. The appellant was not to be punished twice for the conduct which was common to each offence.[10] It is understandable therefore that the Magistrate considered a single notional sentence for each pair of offences to be appropriate.
[10] Pearce v The Queen [1998] HCA 57 at [40]; (1998) 194 CLR 610 at 623.
Even if the offences of breaching the bail conditions are ignored, I would not regard the Magistrate’s starting point of four months for each of the first two drive disqualified offences as being excessive, nor the two notional sentences of three months after reductions for the pleas of guilty. On the contrary, I regard sentences of that order as being well within an appropriate range in the appellant’s circumstances, especially given the applicable maximum penalty of imprisonment for two years for the drive while disqualified offences.
The Magistrate’s starting point of eight months for the two offences committed on 24 January 2013 (reduced to six months on account of the guilty pleas) was also well justified. This was the appellant’s sixth offence of driving while disqualified and his 15th conviction for breaching a bail agreement. Although the appellant’s suspended sentence bond had expired before 24 January 2013, the fact that these offences were committed after his two earlier offences of driving while disqualified and breaching bail agreements was an aggravating factor. The appellant’s apprehension for the earlier offences should have brought home to him the seriousness of his conduct, and the criminality involved. Instead of modifying his behaviour, the appellant chose to offend again in a blatant and seemingly contemptuous way.
The Magistrate considered concurrency of these three sentences to be inappropriate. This was because each constituted a separate incursion into offending. As Wells J observed in Attorney‑General v Tichy,[11] when there are truly two or more incursions into criminal conduct, consecutive sentences are generally appropriate. This meant that the Magistrate was justified in determining that each of these notional sentences should be served cumulatively.
[11] (1982) 30 SASR 84 At 93.
Taken in combination, the Magistrate’s notional sentences of imprisonment for the three offences of driving while disqualified and the three breaches of bail on those same dates totalled 12 months. That is undoubtedly a significant period in custody for offences of this kind but given the number of offences and circumstances of the offending, and the appellant’s personal circumstances, I do not consider that it can be characterised as manifestly excessive.
Alleged Manifest Excess: The Threaten Harm Offence
As already noted, the Magistrate’s notional starting point for the threaten harm offence committed on 2 May 2012 was imprisonment for 16 months. This became 12 months after reduction for the appellant’s plea of guilty.
Initially, the appellant’s counsel referred to s 19(3) of the CLSA which limits the sentence of imprisonment which may be imposed by a magistrate for a single offence to two years. Counsel contended that the Magistrate’s starting point of 16 months for the threaten harm offence was too high a proportion of that available maximum.
Ultimately, counsel did not press the submission, as he recognised that s 19(3), while qualifying the power of a magistrate to impose a prison sentence, does not introduce a new maximum penalty for offences. The Magistrate in the present case was obliged to fix an appropriate sentence having regard to the applicable maximum of five years. It would only be if that sentence exceeded two years that s 19(3) would have precluded him from imposing such a sentence.[12] As the Solicitor‑General for the respondent submitted, the maximum of five years imprisonment was the yardstick to which the Magistrate was to have regard,[13] and not the maximum sentence which s 19(3) permitted him to impose.
[12] Stehbens v Police [2004] SASC 227 at [24]-[28].
[13] Markarian v The Queen [2005] HCA 25 at [30]-[31]; (2005) 228 CLR 357 at 372.
Counsel emphasised the appellant’s intoxication at the time, submitting that it had caused him to become upset at the refusal of service. He also submitted that the threat had been made impulsively and there was no suggestion that the appellant had intended to carry it out. The Magistrate had erred, counsel submitted, in not regarding the threat as being in the nature of a “drunken rant”. Finally, counsel referred to the absence of a victim impact statement from either victim, submitting that if the threat had caused a significant detrimental effect, such a statement would have been provided. Its absence meant that the Court should conclude that this particular aggravating circumstance was non‑existent.
The Magistrate took a serious view of the appellant’s conduct, concluding that his threat had a “particularly nasty flavour”.
The Magistrate noted the absence of victim impact statements but nevertheless proceeded on the basis that the incident must have been upsetting and distressing to the victims. He was well justified in doing so. Courts do not need victim impact statements in order to be able to take account of the usual and probable effects of an offender’s conduct. If there had been evidence that either of the victims had suffered psychological harm as a result of the appellant’s threats, this would have been a circumstance of aggravation. The absence of such evidence was not a circumstance of mitigation.
The appellant’s threats were accompanied by forceful conduct: banging on the bar with his fist and leaning over the hotel patron in an intimidatory fashion. Whether the appellant was, or was not, a member of the Finks Motorcycle Club, his reference to that organisation would no doubt have increased the intimidatory effect of his conduct. I note again that the appellant’s threat related not only to the bar attendant, but also to her family.
There are circumstances in which an offender’s intoxication can be mitigatory.[14] However, this is not such a case. The appellant’s criminal history indicates that violent conduct is not out of character for him so that his intoxication on this occasion does not seem to provide an explanation for aberrant conduct of an atypical kind. In many respects, the appellant’s intoxication may have made his threat more frightening, as it would have increased, in the eyes of his victims, the prospect of him behaving irrationally and unpredictably. Often it is appropriate to be especially wary of an intoxicated person threatening violence.[15]
[14] The principles were discussed by the Full Court in R v Sewell & Walsh (1981) 29 SASR 12 and in R v Lane (1990) 53 SASR 480. See also A, MC v Police [2008] SASC 279 at [85]-[86]; (2008) 102 SASR 151 at 170-1.
[15] Cf R v Sewell & Walsh (1981) 29 SASR 12 at 15.
Many of the authorities concerning the effect of intoxication as a consideration in sentencing were reviewed recently by the Court of Appeal in Victoria in Hasan v The Queen,[16] to which the Solicitor‑General referred. It is not necessary to refer to that review for the purposes of the disposition of this appeal, beyond noting the limited circumstances in which intoxication may mitigate an offender’s moral culpability.
[16] [2010] VSCA 352 at [21]-[34]; (2010) 31 VR 28 at 33-37.
One pertinent aspect of this offending was that the appellant made the threat to a person who was complying with her duties under s 108(1) of the Liquor Licensing Act 1997 (SA).[17] In the Western Australian case of Aleksic v Heath; Rundle v Heath,[18] Walsh J discussed the relevance of this feature when imposing a sentence in these kinds of circumstances:
Licensees who have a duty under the Licensing Act to control what occurs on their premises, may expect to be protected, insofar as the courts can, by the imposition of appropriate sentences in circumstances such as this…The offences themselves called for condign punishment, not only as a personal deterrent to the appellants, but also, as I have stated, in the hope that they will operate as a general deterrent to others who may contemplate similar conduct to proprietors of licensed premises acting in the course of their duties.[19]
[17] Section 108(1) states that if liquor is sold or supplied on licensed premises to an intoxicated person, then the licensee, the responsible person for the licensed premises and the person by whom the liquor is sold or supplied are each guilty of an offence.
[18] Unreported, Supreme Court of Western Australia, Walsh J, 13 November 1997.
[19] Ibid.
Licensees and the staff of licensed premises can be in a vulnerable position when complying with their obligations under the Liquor Licensing Act 1997 (SA). They are entitled to expect the protection of the law in the discharge of those duties. Accordingly, it is appropriate that sentences imposed for offending in circumstances like the present reflect this added need for protection and operate as suitable general deterrence to others.[20]
[20] See also Pearce v Bancroft (Unreported, Supreme Court of Western Australia, Franklyn J, 12 April 1989).
The Magistrate recognised that his starting point of 16 months for the threaten harm offence could well be regarded as high. Despite that recognition, he regarded it as appropriate. Again, having regard to the nature of the offending and the appellant’s circumstances, I am unable to conclude that either a starting point of 16 months or an ultimate notional sentence of 12 months was manifestly excessive. Accordingly, I reject the appellant’s submission concerning the notional sentence for the offence of threatening harm.
Totality
The Magistrate considered that the totality principle did not warrant any reduction in the aggregate figure of imprisonment for 26 months.
Counsel for the appellant contended that the sentence of 26 months was a crushing sentence in the appellant’s circumstances and that the Magistrate had erred in failing to recognise that that was so. The submissions on this topic tended to merge with the submissions concerning manifest excess as counsel submitted that the totality principle should be applied so as to give the appellant “one last chance” to “turn his life around”.
Doyle CJ discussed the totality principle in R v E, AD[21] in the following passages:
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that "the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved". The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so "crushing" as to call for some reduction in the aggregate: see King CJ in R v Rossi. I refer also to the remarks of Kirby J on this point in Postiglione. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.[22]
(Citations omitted)
[21] [2005] SASC 332; (2005) 93 SASR 20.
[22] Ibid at [37]-[38]; 29-30.
Some features in these passages should be emphasised. First, the totality principle is not available as a matter of routine to justify the reduction of a sentence. It is available only in the circumstances identified by Doyle CJ in [37] quoted above.
Secondly, the totality principle contemplates that there should be a final check of a proposed sentence so as to ensure that in the course of aggregating individual penalties, the Court does not arrive at an aggregate which is disproportionate to the seriousness of the offending conduct considered as a whole.
Thirdly, as Doyle CJ observed, sometimes the imposition of a crushing sentence is necessary. If a heavy sentence is warranted, then that is what should be imposed.
Finally, the matter is not to be considered simply from the offender’s subjective perspective. For many defendants sentences of imprisonment, however long, will be crushing. However, that will often be the inevitable result of the imposition of a just and proportionate sentence.
These considerations mean that the totality principle is not to be applied so as to reduce an otherwise just and proportionate sentence simply because the Court considers that offenders should be given some further chance to show that they are prepared to conduct themselves lawfully. What is required is some feature which justifies the adjustment of the sentence, while still maintaining a sentence which is otherwise proportionate to the offending and the offender’s circumstances.
In my opinion, circumstances of that kind are lacking in the present case. The Magistrate identified appropriate notional sentences for each of the appellant’s incursions into criminal conduct. Accumulating the individual sentences was appropriate. It cannot be concluded that the aggregate amount of 26 months is so high as to be crushing. The appellant must have known at the time that his offending would attract severe penalties. He has previously had the advantage of suspended sentence bonds. He has also previously served periods in custody and so may be taken to have known what his offending involved. This was a case in which a single sentence under s 18A had to be heavy, and that is what the appellant received.
I consider that the Magistrate was correct in deciding not to reduce the aggregate of 26 months on account of the totality principle.
Conclusion
For the reasons given above, I dismiss the appeal.
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