White (a pseudonym) v The Queen

[2022] SASCA 78

Supreme Court of South Australia

(Court of Appeal: Criminal)

WHITE (A PSEUDONYM) v THE QUEEN

[2022] SASCA 78

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)

11 August 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

The applicant pleaded guilty to four counts of Rape and one count of Spiking of Food or Beverages. The victim of his offending was his former wife. The offending, which occurred over a period of approximately 15 months, involved the applicant drugging the complainant's night-time beverages before engaging in non-consensual sexual acts with her while she slept.

The applicant was sentenced to 14 years and three months' imprisonment. As a serious repeat offender, he was liable to receive a non-parole period four-fifths of the head sentence imposed.

The applicant seeks permission to appeal against sentence on four grounds; namely, that the sentencing Judge erred in his consideration of personal and general deterrence; that the sentencing Judge failed to consider and apply totality; that the sentence imposed was manifestly excessive; and that the sentencing Judge erred when exercising his discretion pursuant to s 54(1) of the Sentencing Act 2017.

Held, per the Court, granting permission to appeal on all grounds but dismissing the appeal:

1.   The sentencing Judge's use of the word "acknowledge" rather than "accept" in considering submissions as to personal deterrence and community protection does not establish a process error. In context, it is clear his Honour accepted the relevant submission.

2.   The failure to mention the principle of totality does not in itself indicate that the sentencing Judge failed to consider the topic, nor does it establish a process error.

3.   The applicant's offending cannot be described as a single course of conduct. The degree of concurrency applied by the sentencing Judge was appropriate.

4.   The sentence imposed by the sentencing Judge was not manifestly excessive.

5. The three purposes expressed in s 54(2)(a) of the Sentencing Act 2017 are not mutually exclusive; the weight to be given to any particular factor or purpose depends on the circumstances before the court.

6. The personal circumstances of the applicant are not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence for the purposes of s 54(2)(a) of the Sentencing Act 2017.

Sentencing Act 2017 (SA) s 54(2)(a), s 54(2)(b), s 44, s 26, s 12; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 310; Prisons Act 1936 (SA) s 24(1); Prisons Act 1869 (SA) s 32; Correctional Services Act 1982 (SA) s 21, referred to.
Attorney-General v Tichy (1982) 30 SASR 84; Cuong v The Queen 2021] SASCA 89; Dicker v Ashton (1974) 65 LSJS 150; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Hackett v The Queen [2021] SASCA 32; Hayes v The Queen (1967) 116 CLR 459 ; Jarvis v The Queen (1993) 20 WAR 201; Karpany v The Queen [2021] SASCA 48; Knight v The Queen [2021] SASCA 12; Lane v The Queen [2020] SASCFC 82; Mackenzie v Bett (1980) 23 SASR 307; Mill v The Queen (1988) 166 CLR 59; Ndreka v The Queen [2021] SASCA 11; R v Bagnato (2011) 112 SASR 39; R v Belczacki (2012) SASR 95; R v Blain (1984) 115 LSJS 270; R v Copeland (No 2) (2010) 108 SASR 398; R v Karnage [2019] SASCFC 82; R v Major (1998) 70 SASR 488; R v Nixon (1993) 66 A Crim R 83; R v Nylander [2003] SASC 191; R v Rajacic [1973] VR 636; R v Skinner (2016) 126 SASR 120; R v Smoker (2016) 126 SASR 201; R v Symonds [1999] SASC 217; R, JM v Police (2012) 113 SASR 9 ; Rendic v The Queen (2021) 138 SASR 214; The Queen v Dorning (1981) 27 SASR 481; The Queen v Garrett (1978) 18 SASR 308; The Queen v Smith and Shoesmith (1983) 32 SASR 219, considered.

WHITE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 78

Court of Appeal – Criminal:    Lovell, Bleby and David JJA

1. THE COURT:  Over a period of about 15 months, the applicant, on at least four occasions, drugged and raped his wife. The applicant was charged with eight counts of Rape and five counts of Spiking of Food or Beverages. He pleaded guilty to four of the counts of Rape and to one count of Spiking of Food or Beverages. The prosecution accepted the pleas in full satisfaction of all the charges on the Information. The applicant accepted that he was to be sentenced only for the offending to which he pleaded but set against the background of the other offending during the 15-month period. After a reduction of five per cent to reflect the applicant’s guilty pleas, the sentencing Judge imposed a head sentence of 14 years and three months. The applicant complains that the sentence is manifestly excessive.

2. The applicant fell to be sentenced as a serious repeat offender. As a serious repeat offender, the sentencing Judge was required by the Sentencing Act 2017 (SA) (“the Act”) to impose a non-parole period of no less than four-fifths of the head sentence unless the applicant could persuade the sentencing Judge to declare, pursuant to s 54 of the Act, that he not sentence the applicant as a serious repeat offender. The applicant requested that the sentencing Judge exercise his discretion and make such a declaration. The sentencing Judge refused to make that declaration. He therefore imposed a non-parole period equal to four-fifths of the head sentence; namely, 11 years and five months. The applicant complains that the sentencing Judge erred in not making the declaration.

   Background

3. The complainant and the applicant lived together as husband and wife […]. Prior to the offending they had been married for 27 years. In about 2015, the complainant decided she no longer wished to have sexual intercourse with the applicant. The complainant discussed that directly with the applicant. They agreed that sexual contact between them was limited to masturbation of the applicant’s penis by the complainant. Despite that agreement, the applicant drugged the complainant by placing a substance, likely Stilnox, into the complainant’s night-time drink. Then, while she was asleep, he would engage in sexual acts with the complainant without her knowledge or consent. On occasions, the applicant filmed the sexual acts.

4. On some occasions after the offending, the complainant became aware that there were gaps in her memory from the night before. Sometimes she would feel hung over in the mornings and would be unsteady on her feet. Thinking that this may be related to her intake of alcohol prior to going to bed, the complainant reduced her drinking. The applicant began to make her, as a substitute, a hot chocolate before bedtime. Occasionally during the sexual acts, the complainant would wake but be unable to stay awake. In early April 2018, the complainant looked in the applicant’s toiletry bag and found a pack of Stilnox tablets. On 3 April 2018, the complainant visited her general practitioner where she raised her concerns about the applicant’s conduct and on 4 April 2018 she moved out of the matrimonial home. The complainant reported the matter to police on 9 April 2018. A sample of the complainant’s hair was taken on 8 May 2018 and analysis revealed that the active ingredient of Stilnox was present in all segments of her hair. The test indicated consumption of Stilnox in the nine to 12 months prior to the taking of the hair sample.

5. On 11 April 2018, the applicant left a written apology in the complainant’s car while she was parked at a doctor’s surgery. Later that day he flagged down a police car. The applicant was emotional and made admissions to “effectively raping” his wife by “making love with her when she’s asleep or when we were drunk”. On 23 April 2018, the applicant attended counselling in relation to the marriage breakdown. The applicant made admissions to the conduct during this attendance.

6. The applicant was arrested on 24 April 2018 and his mobile phone was seized. Later analysis of the mobile phone revealed nine videos which recorded acts of sexual conduct.

   Procedural history

7. The applicant was charged in the Magistrates Court with multiple offences of Rape, contrary to s 48 of the Criminal Law Consolidation Act1935 (SA) (“the CLCA”) and multiple offences of Spiking of Food or Beverages (“Drink Spiking”) contrary to s 32C of the CLCA. On 16 January 2019, the applicant entered a plea of guilty to Count 1 on that Information, an offence of Drink Spiking.

8. On 13 June 2019, the applicant was committed for sentence to the District Court on that offence, and for trial on the remaining offences. The applicant appeared before the District Court on 6 September 2019 and was arraigned on an Information which charged 12 offences, comprising eight offences of Rape and four offences of Drink Spiking. The matter was listed for trial on 15 June 2020. The trial did not proceed. A further trial date of 7 December 2020 was fixed. That trial did not proceed and was vacated on 19 December 2020. The matter was then listed for trial commencing 19 July 2021. On 13 July 2021, the applicant entered pleas of guilty to four counts of Rape. Why the applicant delayed pleading guilty to the charges of Rape was not satisfactorily explained on this appeal.

9. On 14 September 2021, the applicant was sentenced. The applicant, due to the timing of his pleas of guilty, was entitled to a maximum 30 per cent reduction for the Drink Spiking offence and five per cent for each offence of Rape.

10. The sentencing Judge indicated that, had separate sentences been imposed, the sentences would have been constituted as follows:

    1.For the charge of Drink Spiking, one year imprisonment reduced by 30 per cent for the applicant’s plea of guilty.

    2.For each offence of Rape, five years’ imprisonment, with the terms imposed for the two offences committed on 14 December 2017 to be made concurrent, but cumulative upon the sentences for the two remaining offences.

    3.The sentence for Drink Spiking to be served concurrently with the sentence imposed for the offence of Rape committed on 4 December 2017.

11. A head sentence of 14 years and three months was imposed, reduced from 15 years to reflect the pleas of guilty.

12. The applicant was liable to be sentenced as a serious repeat offender pursuant to s 53 of the Act. The sentencing Judge did not find that the applicant’s personal circumstances were 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;[1] and that it was in all of the circumstances appropriate that he not be sentenced as a serious repeat offender.[2] The applicant was liable to receive a non-parole period that was four-fifths of the head sentence.

    [1] Section 54(2)(a) of the Act.

    [2] Section 54(2)(b) of the Act.

13. A non-parole period of 11 years and five months was fixed. Both head sentence and non-parole period commenced on 10 August 2021.

    Grounds of Appeal

14. The applicant agitates four grounds of appeal. In summary they are as follows:

    1.The sentencing Judge erred in the consideration of personal and general deterrence;

    2.The sentencing Judge failed to consider and apply the principle of totality;

    3.The sentence imposed was manifestly excessive; and

    4.The sentencing Judge erred when exercising his discretion pursuant to s 54(1) of the Act.

    Ground 1

15. The applicant alleged a process error being the sentencing Judge’s use of the word “acknowledge”. Before the sentencing Judge, the defendant submitted, and the prosecution conceded, that the applicant’s personal circumstances were such that he did not present a risk to the community and that personal deterrence had little or no role to play in sentencing. During his sentencing remarks, the sentencing Judge stated:

    I acknowledge your counsel’s submission that you do not represent a danger to the community and that in your case personal deterrence is not a significant feature. But in all cases of sexual offending and of domestic violence general deterrence is always important.

    (emphasis added)

16. The applicant submitted that whilst the sentencing Judge acknowledged the submission, his Honour did not say whether he accepted the submission. This, the applicant submitted, was a process error.

17. We reject the applicant’s submission. While “acknowledge” has a number of meanings, in context, it is clear that the sentencing Judge used “acknowledge” in the sense that he accepted that the defence submission (and the prosecution’s concession) was true or correct rather than just recognising the submission’s existence. His Honour then proceeded to weigh that submission against the necessity of general deterrence. No process error has been demonstrated. The other submissions relating to Ground 1 will be dealt with when considering Ground 3.

18. We would dismiss this ground of appeal.

    Ground 2

19. The applicant submitted that the sentencing Judge failed to consider properly or at all, the principle of totality.

20. The sentencing Judge did not specifically mention the principle of totality during his sentencing remarks. It is likely that having applied concurrency to some of the sentences, he saw no need to mention totality. The failure to mention the principle does not mean the sentencing Judge failed to consider the topic. In any event, the failure to mention the concept of totality does not establish a process error. We reject the applicant’s submission on that point. Whether the sentencing Judge ought to have reduced the sentence for totality is best dealt with when considering Ground 3.

21. We would dismiss this ground of appeal.

    Ground 3

22. The sentencing Judge ordered that three of the sentences be served cumulatively upon each other. In support of his submission that the sentence was manifestly excessive, the applicant submitted that the individual sentences of five years’ imprisonment for each offence of Rape was excessive, and that the sentencing Judge erred in ordering that the sentences be served cumulatively. The applicant submitted that, as his offending was a “course of conduct”, an application of the principle of concurrency, or at least partial concurrency, was required. Further, the applicant submitted that the sentencing Judge failed to have proper regard to the applicant’s personal circumstances which established that he was not a risk to community safety and that personal deterrence had little role to play in sentencing.

23. Before turning to the question of whether the sentence is manifestly excessive, it is necessary to consider, individually, some of the applicant’s submissions.

    Concurrent and/or cumulative sentences

24. We deal first with the question of concurrency. The common law requires that a separate sentence be imposed for each proven offence. If an offender receives more than one sentence of imprisonment for multiple offending, the common law rule is that all sentences should be served concurrently. In South Australia, from 1837, the court was given the power to order a sentence, for a felony, to be served cumulatively upon the expiration of a sentence already served. Amendments to the Criminal Law Consolidation Act 1876 (SA) enabled a court to impose no more than two consecutive sentences for felonies.[3] Further amendment removed that restriction and enabled a court to impose more than two consecutive sentences.[4] In 1988, s 310 of the Criminal Law Consolidation Act 1935 (SA) was re-enacted as s 31 of the Criminal Law (Sentencing) Act 1988 (SA). It is now s 45 of the Act.[5]

    [3]     Hayes v The Queen (1967) 116 CLR 459 at 461–462; R, JM v Police (2012) 113 SASR 9 at [38].

    [4]     Originally s 388 of the Criminal Law Consolidation Act 1876 (SA), later amended to s 310 of the Criminal Law Consolidation Act 1935 (SA).

    [5]     See R, JM v Police (2012) 113 SASR 9 at [31]–[40] (per Blue J) for the history of the common law and legislative position.

25. When to apply cumulative sentences as opposed to concurrent sentences has been the subject of discussion in many cases. In Dicker v Ashton,[6] Wells J observed:[7]

    … unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happened to have occurred together, the court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct.

    [6] (1974) 65 LSJS 150.

    [7] (1974) 65 LSJS 150.

26. In Mackenzie v Bett (“Mackenzie”)[8] the appellant broke into a number of premises including the premises of a car dealer. Having broken into the premises, when leaving, he took a vehicle. The appellant pleaded guilty in the District Court to three counts of breaking, entering and larceny. He was sentenced to a term of imprisonment. He later pleaded guilty to one count of Illegal Use of a Motor Vehicle he had taken when leaving the car premises. The Special Magistrate sentenced the applicant to six months’ imprisonment, that term to be served cumulatively upon the sentence for the earlier offending. On appeal, counsel for the appellant submitted that the offence of illegally using a motor vehicle arose out of the offences of breaking, entering and larceny and that, in essence, the offending was a facet of those offences.

    [8] (1980) 23 SASR 307.

27. Justice Walters rejected that submission and observed that the offence of Illegal Use of a Motor Vehicle involved a different act and caused a different type of harm. Given that the conduct occurred some hours after the earlier offending, Walters J considered that the illegal use of the vehicle was unconnected with, and unrelated to, the appellant’s earlier criminality.[9]

    [9]     Mackenzie v Bett (1980) 23 SASR 307 at 308.

28. Mackenzie was referred to with approval in The Queen v Dorning.[10] In that matter, the applicant committed four armed ‘hold-ups’ within five days. The applicant’s offending shared the same motivation; that of obtaining money so that he could return to New Zealand. The sentencing Judge imposed terms of imprisonment in relation to each count. In relation to the first two counts, he ordered that the terms of imprisonment be served concurrently. In relation to the other two counts, he also ordered that those terms of imprisonment be served concurrently, but cumulative upon the expiration of the earlier sentence of imprisonment. The final term of imprisonment was 12 years.

    [10] (1981) 27 SASR 481.

29. On appeal, the applicant submitted that the final sentence of imprisonment was manifestly excessive. He submitted that all four sentences should have been concurrent and that each sentence was, in itself, excessive. In dismissing the appeal, the Court (Walters, Zelling and Williams JJ) observed that: “the mere fact that the crimes were similar in nature and committed over a period of five days does not constitute them as ‘one course of criminal conduct’.”[11]

    [11]   The Queen v Dorning (1981) 27 SASR 481 at [483].

30. Justice Wells returned to the topic in Attorney-General v Tichy[12] where he observed:[13]

    The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

    (emphasis added)

    [12] (1982) 30 SASR 84.

    [13]   Attorney-General v Tichy (1982) 30 SASR 84 at 92.

1. The concepts of a single “course of conduct” or “one multi-faceted course of criminal conduct”, while simple in enunciation, have, on occasion, proved problematic in their application.

2. In the cases referred to above, there was no mention of the concept of partial concurrency. In R v Rajacic,[14] Smith ACJ noted that, at common law, the court had a power to order that sentences be served partially concurrently.[15] Irrespective of whether the common law empowered the court to direct the partial concurrence of a sentence, the majority of the Full Court (Smith ACJ and Norris J) decided it, in any event, had the statutory power.

   [14] [1973] VR 636.

   [15]   R v Rajacic [1973] VR 636 at 640.

3. Partial concurrency in South Australia appears to have its genesis in the Prisons Act 1936 (SA) (“Prisons Act”). On the question of the starting date of sentences of imprisonment, the answer in South Australia was originally provided by s 24(1) of that Act.[16]

   [16] Section 24(1) of the Prisons Act 1936 (SA) amended the previous s 32 of the Prisons Act 1869 (SA). The Correctional Services Act 1982 repealed the Prisons Act. A similar provision was enacted as s 21 of the Correctional Services Act. With some changes, a similar provision is found in s 44(1) of the Sentencing Act 2017.

4. Section 24(1) relevantly stated:

   All sentences of offenders, convicted at any criminal sittings of the Supreme Court or a circuit court shall date from the first day of holding the sittings unless the court orders that the sentence of imprisonment shall date from any other day, in which case the sentence shall date from that day.

   (emphasis added)

5. The proper interpretation of s 24(1) of the Prisons Act (as amended) arose for decision in the Full Court in The Queen v Garrett.[17] The issue before the Court did not relate to the question of partial concurrency of sentences. The Court found that the section enabled a court to direct, when passing sentence, that the term of imprisonment could commence from a date prior to the date of passing sentence.[18] That is, the court could backdate a sentence to when an accused was first taken into custody, rather than from the first day of the Criminal Sittings. The Court also observed that there was “no reason to construe it [s 24(1)] as denying a power to ante-date the sentence beyond the first day of the relevant Criminal Sittings”.[19]

   [17] (1978) 18 SASR 308.

   [18]   The Queen v Garrett (1978) 18 SASR 308 at 314–315.

   [19]   The Queen v Garrett (1978) 18 SASR 308 at 315.

6. The question of the accumulation, or partial accumulation, of sentences arose in The Queen v Smith and Shoesmith.[20] Each applicant had pleaded guilty to two counts of armed robbery. The offences were committed three days apart and both were serious offences of their kind. A sawn-off rifle was used in both offences to threaten the respective victims, and actual violence was inflicted during the second robbery. In relation to both appellants, for the first robbery, the sentencing Judge imposed a term of imprisonment of six years. For the second robbery, the sentencing Judge imposed, on Shoesmith, a term of imprisonment of eight years, with the sentence to be served cumulatively on the sentence for the first offence. Smith, for the second robbery, was sentenced to a term of imprisonment of nine years, with the sentence to be served cumulatively on the sentence for the first offence. On appeal, the Court considered that the accumulation of the sentences meant that the final sentence was “too much”.[21]

   [20] (1983) 32 SASR 219.

   [21]   The Queen v Smith and Shoesmith (1983) 32 SASR 219 at 220.

7. Justice Mitchell stated:[22]

   Looked at alone each of the sentences appears to me to be within the appropriate range of sentences for offences of this nature, particularly having regard to the gravity of the conduct of the appellants during the commission of the second offence. However, in considering the sentences imposed, it is necessary to have regard not only to the appropriateness of each sentence to the crime in respect of which it is imposed but to the totality of the sentences: see The Queen v. Knight. In my opinion the totality of fifteen years and fourteen years respectively is, in the words of Lord Parker in Reg. v. Faulkner, “too much”. There is one way in which it seems to me that it can be rectified. Section 24(1) of the Prisons Act, 1936-1981 provides that all sentences of offenders convicted at any criminal sittings of the Supreme Court or a Circuit Court shall date from the first day of holding the sittings “unless the court orders that the sentence of imprisonment shall date from any other day, in which case the sentence shall date from that day”. Pursuant to that section the court may order that the sentence be ante-dated beyond the first day of holding the criminal sitting. See The Queen v. Garrett. In my opinion the sentences imposed upon the appellants for the second offence can properly be ante-dated so as to ensure that the totality of the sentence is not “too much.” Section 130 of the Criminal Law Consolidation Act, 1935-1981, which enables a court to impose cumulative sentence for felonies, does not seem to me in any way to derogate from the power to ante-date the sentences imposed upon the appellants for the second offence. I would regard a total of thirteen years in the case of Smith and twelve years in the case of Shoe-smith as appropriate.

   (emphasis added and citations omitted)

   [22]   The Queen v Smith and Shoesmith (1983) 32 SASR 219 at 220.

8. Thus, Mitchell J used s 24(1) of the Prisons Act to apply partial concurrency when resentencing the applicants.

9. Justice Jacobs agreed with Mitchell J. He stated that it was incumbent upon the sentencing Judge to consider whether the aggregate period was an appropriate sentence for the criminal conduct viewed as a whole. He observed:[23]

   It seems to me that the solution proposed by Mitchell J., by which the sentences would be concurrent in part only, is consistent with established principles, and in addition, gives some recognition to the fact that there was an element of “concurrence” in the two offences. Both occurred in a relatively short space of time while the applicants were fugitives from justice from another State. Their escape and flight was in a sense, one criminal escapade, in the course of which these two offences were committed.

   [23]   The Queen v Smith and Shoesmith (1983) 32 SASR 219 at 221.

10. Justice Matheson agreed with both Mitchell and Jacobs JJ.

11. Partial concurrency was seen as an option available to a sentencing judge to ensure that the final sentence reflected appropriate punishment for the criminal conduct viewed as a whole. A sentencing judge was required, at this time, to fix an appropriate sentence for each offence, then consider questions of cumulation or concurrence before finally considering the question of totality.[24]

    [24]   Mill v The Queen (1988) 166 CLR 59 at 62–63.

12. The options available to a sentencing judge changed in 1992 with the enactment of s 18A (now s 26) of the Criminal Law (Sentencing) Act 1988 (SA). A sentencing judge, when faced with sentencing an offender who had been found guilty of multiple offences, was empowered to impose one penalty for all or some of the offences. What effect s 18A had on a judge’s approach to sentencing, and the sentencing discretion, was considered in R v Nixon.[25] Justice Legoe (Matheson and Duggan JJ agreeing) stated that the section was not:[26]

    … a substitution for nor does it replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence. In my opinion it is a very useful power which should be used where the circumstances for using the section do not conflict with other well-established principles of sentencing practice.

    [25] (1993) 66 A Crim R 83.

    [26] (1993) 66 A Crim R 83 at 85–86

13. Thus, sentences should be constructed primarily by reference to the principles of concurrent and cumulative sentencing, albeit with s 18A as an additional option available to a sentencing judge. Subsequent authorities have confirmed that approach. In R v Major (“Major”),[27] Olsson J (Doyle CJ agreeing) held that a sentencing judge, if using s 18A, should first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence.[28] Such a process preserves the transparency, and therefore the integrity, of the sentencing process. A failure to follow this process is not an error of law but may indicate an error in the sentencing process. Many decisions since Major have confirmed these principles.[29]

    [27] (1998) 70 SASR 488.

    [28] (1998) 70 SASR 488 at 497.

    [29]   R v Symonds [1999] SASC 217; R v Bagnato (2011) 112 SASR 39. See also R v Belczacki (2012) SASR 95, where Peek J (in dissent on the result of the appeal in Bagnato) discussed the approach to the sentencing principles of concurrent and cumulative sentences.

14. This Court has recognised that, in some cases, it would not be appropriate to approach the sentencing task by nominating a sentence for each offence and then considering concurrency and/ or cumulative sentences. This was particularly so where the number of offences is such that there would be an “air of unreality”[30] in approaching the task in this way. However, s 26(2a) of the Act now requires the court to indicate the sentence that would have been imposed in respect of each offence.

    [30]   See R v Nylander [2003] SASC 191 at [81].

15. Returning to the question of concurrency, as Peek J noted in R v Belczacki,[31] the courts have travelled further from the original principle of concurrency; namely, that it should be considered where the offending arises from a single “course of conduct” or “one multi-faceted course of criminal conduct”. This, Peek J observed, has occurred as a result of the “device” of partial concurrency which enables a sentencing judge to “reach a total punishment which is a proper punishment”.[32]

    [31] (2012) SASR 95 at [42].

    [32]   R v Belczacki (2012) SASR 95 at [42]; see also R v Blain (1984) 115 LSJS 270 at 273 (per King CJ).

16. The rationale for a wider principle of concurrency was explained by Kourakis J (as his Honour then was) in R v Copeland (No 2).[33] Kourakis J observed.[34]

    [33] (2010) 108 SASR 398.

    [34] (2010) 108 SASR 398 at [102]–[106].

    It is difficult, but I think useful, to attempt to identify why it is that very similar and proximate offences committed in furtherance of a single criminal plan warrant, at least to some extent, concurrent sentences.

    First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms.  In Jarvis v The Queen Ipp J explained this consideration in the following way:

    What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed?  In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length.  Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.

    (emphasis added)

    Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.

    Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.

    There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent.  I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct.  Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.

    (citations omitted)

17. This more expansive approach to the application of concurrency, particularly partial concurrency, has been adopted in subsequent cases. In Edmonds (a pseudonym) v The Queen (“Edmonds”),[35] this Court helpfully summarised the approach a sentencing judge should adopt when sentencing for multiple offences. The Court stated:[36]

    It may be accepted that the paradigm case for the application of the principle of concurrency is a case involving a single incursion into criminal conduct, or a single course of conduct.  However, as Kourakis J (as he then was) explained in R v Copeland (No 2),[37] even when the connection between two offences is insufficient to characterise them as involving a single course of conduct, there may nevertheless be sufficient reason to make the sentences for those offences at least partially concurrent.  Sufficient reason may exist where the imposition of a penalty for one of the offences affects what is necessary to achieve the deterrent, punitive or rehabilitative objectives of the sentence for other offending.

    This broader view of the scope of operation for the principle of concurrency has been adopted in subsequent decisions of this Court.  Indeed, in R v W, PL it was recognised that this broader approach to concurrency may extend to sexual offending against multiple victims.  It will remain important in such cases to ensure that the sentence ultimately imposed adequately reflects the violation of each of the victims, and this will ordinarily operate as a significant limit upon the extent of any allowance for concurrency, and may in some cases militate against any allowance at all. But in some cases there may nevertheless be scope for some reduction for partial concurrency.

    None of this is intended to gainsay the flexibility that must be afforded to sentencing Judges in terms of the techniques or mechanisms through which they might determine to ensure proportionality.  While it would have been open to the sentencing Judge in the present case to allow for some partial concurrency, it would have been equally open to his Honour to address the concern to ensure proportionality in light of the connection between the offences through the mechanism of totality.  Put another way, it cannot be said that there was any process error when the sentencing Judge decided to make the notional head sentences for the three offences cumulative rather than partially concurrent.  The search for error involves inquiring further to consider whether the sentence in fact ultimately imposed did adequately allow for the interconnection between the offences.

    (emphasis added and citations omitted)

    [35] [2022] SASCA 11.

    [36] [2022] SASCA 11 at [67].

    [37]   R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106] (Kourakis J).

18. It is against that background that we turn to consider the applicant’s submissions.

19. Before the sentencing Judge, the applicant submitted, and the prosecution accepted, that his offending could be described as a “single course of conduct”. The applicant submitted on appeal that, where there is a single course of conduct, as is consistent with sentencing principles, the sentencing Judge ought to have ordered that the sentences, in part at least, be served concurrently. The sentencing Judge did make two of the sentences fully concurrent and treated the acts relating to those two charges, both committed on 14 December 2017, as part of a course of conduct on that particular occasion.

20. Despite the prosecution concession before the sentencing Judge, we are unable to accept the applicant’s submission that his offending could be described as a “single course of conduct” as that expression is used in the cases cited earlier. The offending could, however, be described as a “course of conduct”. Whilst we accept that whether offending falls with the definition of a single course of conduct is a question of fact and degree, the offending here, although almost identical, occurred over at least a 12-month period. The time between the crimes gave the applicant the opportunity to reflect on his conduct; he clearly did not do so. The mere fact that the offending was similar does not make his offending a single course of conduct. We consider that the application of the principle of concurrency in the manner used by the sentencing Judge was appropriate. It may have been open to the sentencing Judge to find “sufficient reason” to apply partial concurrency, in the sense described in Edmonds, where the imposition of a penalty for one of the offences affects what is necessary to achieve the deterrent, punitive or rehabilitative objectives of the sentence for other offending. However, it was not an error for him not to do so and indeed, subject to the question of proportionality, and given the nature of the offending, cumulative sentences were appropriate.

    Personal deterrence and the risk to the community

21. Before the sentencing Judge, the prosecution accepted that “protecting the community and personal deterrence don’t weigh against the [applicant] in any meaningful way”. As previously stated, the sentencing Judge accepted that submission. That, however, is not the same as accepting that those considerations had no role to play. The sentencing Judge accepted the submission but emphasised, correctly in our view, that “in all cases of sexual offending and of domestic violence general deterrence is always important.” The offending was serious and involved the use of drugs to render the complainant unconscious. The applicant abused his relationship with his wife for his sexual gratification. Even allowing for the reduced need for personal deterrence it could not be said that the individual sentences were excessive.

22. The applicant submitted that the sentencing Judge’s acceptance of the submission had relevance at two stages of the sentencing process. First, when fixing the sentence for the individual offences and secondly, when considering the question of totality.

    Totality

23. Totality is a principle of review employed to ensure that the aggregate sentence is not disproportionate to the seriousness of the entire offending conduct.[38] The concept of proportionality underpins the principle of totality.[39] 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 when 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 referred to as the principle of totality. An appropriate sentence is one that is proportionate to both the objective criminality and maximum penalty, and the subjective, mitigating circumstances of the offender in the light of all relevant circumstances. The principle of totality requires the sentencing judge, in matters concerning multiple sentences, to take one final look at the cumulative effect of the sentence and ensure that it is appropriate when considered in light of the criminal behaviour. The totality principle does not require a reduction of a long sentence.

    [38]   Lane v The Queen [2020] SASCFC 82 at [35] (per Bleby J).

    [39]   Mill v The Queen (1988) 166 CLR 59.

1. Often in sentencing submissions, much is made of the expression “crushing”, as if it is a separate matter the court must consider even if the principle of totality has been applied. “Crushing” is not a term of art in the context of cumulative sentences and the principle of totality. In R v Smoker (“Smoker”), [40] the Court traced the genesis of the expression “crushing”. Properly understood, the authorities establish that the use of the epithet was part of the process of determining proportionality. Promoting rehabilitation and ensuring that an offender does not lose the incentive to reform are also proportionality considerations. The “crushing” effect of a term of imprisonment is merely one of the mitigating factors to be considered when deciding the question of proportionality.[41] That is, it is a part of an application of the principle of proportionality. It is not uncommon that a sentence that could be considered “crushing” is required, especially for serious offending.

   [40] (2016) 126 SASR 201.

   [41]   Jarvis v The Queen (1993) 20 WAR 201 at 206–7 (per Ipp J).

2. To the extent that comments in other cases suggest that, after the application of the totality principle, a sentencing judge or magistrate should exercise some form of mercy if the sentence is “crushing”, Lovell and Hinton JJ in Smoker stated:[42]

   However, the weight to be afforded an offender’s prospects of rehabilitation where that offender is to be sentenced for a series of offences constituting distinct episodes of offending, such prospects including his or her likely response to the sentence, is a factor relevant in the application of the first aspect of the totality principle. In our view, here all that the epithet, “crushing”, achieves is to bring more sharply into focus the impact of the punitive experience and the importance that fostering hope may have to attaining rehabilitation. In our view, if the second aspect to the totality principle referred to by Doyle CJ in R v E, AD is to be given any operation different to the application of the proportionality principle subject of the first aspect as explained above, it lies in the extension of mercy of a type beyond leniency that a judge may be moved to grant to an offender in the ordinary course of determining the appropriate sentence overall. If this is to occur it must be upon considerations which are supported by the evidence, which permit objective judgment and which amount to more than an appeal to sympathy. For a court to permit sympathy to cause it to divert from attaching due weight to the purposes of punishment, would be for the court to fail to discharge its duty.

   (emphasis added)

   [42] (2016) 126 SASR 201 at [84]. See also R v Scott [2017] SASCFC 96.

3. If such an extra principle exists, it is difficult to see when it would apply.

4. The applicant submitted that notwithstanding the number of offences and the context in which the offending occurred, the starting point of 20 years’ imprisonment (before the application of concurrency) was “objectively very high” and “above the highest end of the ranges of sentences that could be imposed on the facts.”

5. That submission lacks utility.[43] It is not helpful to identify a “starting point” of 20 years’ imprisonment in the present matter with a view to making a comparison with the maximum penalties from which to launch a complaint of manifest excess. The sentencing Judge did not identify 20 years as a starting point, nor can it be inferred that he did. The sentencing Judge recognised the need for concurrency and applied it. The sentencing Judge’s methodology never touched on a period of 20 years; the starting point identified was 15 years’ imprisonment.

   [43]   Cuong v The Queen [2021] SASCA 89 at [6] (per Lovell and Bleby JJA).

6. The sentencing Judge, having applied concurrency, arrived at a starting point of 15 years’ imprisonment. He did not, in his sentencing remarks, mention the application of totality. However, it cannot be inferred that he did not consider it. There is no error in his approach. The issue is whether the sentence was manifestly excessive.

7. The approach to the question on appeal of whether a sentence is manifestly excessive was discussed in Hackett v The Queen.[44] The Court observed:[45]

   The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. -  To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.

   (citations omitted)

   [44] [2021] SASCA 32.

   [45] [2021] SASCA 32 at [8].

8. Whether a sentence is manifestly excessive requires consideration of a range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit on the scale of seriousness of crimes of that type, and the personal circumstances of the offender. There is, however, a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.[46]

   [46]   Ndreka v The Queen [2021] SASCA 11 at [28] per (Doyle JA).

9. In support of his submission that the sentence was manifestly excessive, the applicant relied upon the fact that he had no prior criminal history and that personal deterrence played little role in sentencing. Further, he submitted he had expressed genuine remorse and contrition and, albeit late, pleaded guilty. The applicant had served in the military […]; the applicant developed a post-traumatic stress disorder resulting from his military service. The applicant enjoys the support of his current partner and friends. Finally, the applicant submitted that his age (63 years’ old at the time of sentence) was a relevant factor in sentencing. While accepting the serious nature of the offending, the applicant submitted that the sentence imposed lay outside the permissible range of sentences.

10. The respondent submitted that the offending was predatory, planned and not isolated. The applicant was aware that his wife did not consent but acted in disregard of her wishes. Further, the respondent submitted that the offending was aggravated by the fact that the applicant filmed explicit detail of some the acts of sexual intercourse and spiked his wife’s night-time drinks, which enabled him to carry out the acts of sexual intercourse. Combined, the respondent submitted the offending represented the applicant’s protracted exercise of power and control over his wife.

11. The respondent pointed to the late plea of guilty to the offending. While the delays in the trial being reached were not the fault of the applicant, he only pleaded guilty immediately prior to the trial commencing. His expression of remorse needed to be assessed against his late plea.

12. The sentencing Judge described the offending in the following manner:

    After drugging your former wife you raped her on the following occasions: on 4 December 2017 you had sexual intercourse with her by inserting your penis into her vagina; on 14 December 2017 you had sexual intercourse with her first by inserting one of your fingers into her vagina and then by licking her vagina; on 29 March 2018 you had sexual intercourse with your wife by inserting one of your fingers into her anus. On a number of those occasions you filmed your sexual activity with your drugged and sleeping wife.

    Your offending is appalling. Your wife was numb when she first realised what you had been doing to her. That numbness gave way to anger and disbelief and for some time she felt completely incapacitated. You betrayed and humiliated her in the most degrading way. In addition, she has had to suffer the degradation and the humiliation of sitting with police officers viewing the sexual activities which you had filmed.

    You have destroyed what would have been your family’s happy future.

13. The sentencing Judge had regard to the applicant’s military service and the diagnosis of a post-traumatic stress disorder. He took into account the applicant’s community service and the large number character references. As previously noted, while accepting that the applicant did not represent a danger to the community and that personal deterrence was not a significant factor, the sentencing Judge emphasized the importance of general deterrence in cases of sexual offending and domestic violence.

14. The offending here was prolonged and planned. The applicant continued to offend despite having time to reflect on his actions. The use of Stilnox along with the filming of some of the sexual acts makes the offending more serious. The sentencing Judge had regard to all the factors personal to the applicant. No error has been demonstrated in his approach. While the sentence can be regarded as heavy, it is not manifestly excessive.

15. We would dismiss this ground of appeal.

    Ground 4

16. The applicant contends that the sentencing Judge erred when exercising his discretion pursuant to s 54(2) of the Act.

17. Section 54 of the Act relevantly states:

    (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)     …

    (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.

18. Before the sentencing Judge, it was conceded that the applicant was to be sentenced as a serious repeat offender. Therefore, under s 54(1)(b), the non-parole period to be fixed had to be at least four-fifths of the length of the sentence unless the applicant persuaded the sentencing Judge to exercise the discretion under s 54(2) and declare that it was not appropriate that the applicant be sentenced in this way.

19. The sentencing Judge, in relation to this issue stated:

    You are a serious repeat offender. While your offending can be described as a course of conduct the charges to which you pleaded guilty comprise quite separate occasions of criminal conduct.

    Your counsel has submitted that your personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence; and, further, that it is in all of the circumstances not appropriate that you be sentenced as a serious repeat offender. That is, your counsel has asked me to make a declaration that it is not appropriate for me to sentence you as a serious repeat offender.

    I can only make such a declaration on the basis of evidence given on [oath]. In this case that evidence comprises only the affidavits of Dr Ford to which I have referred. In Dr Ford’s opinion you suffer from chronic, mild post-traumatic stress disorder and in Dr Ford’s opinion there is no major link between that post-traumatic stress disorder and the offending against your former wife. That evidence does not satisfy me that it is appropriate to make the declaration sought and I shall sentence you as a serious repeat offender.

20. The applicant submitted that the sentencing Judge erred, when exercising his discretion, in confining the personal circumstances relevant to the exercise of that discretion to the opinion of Dr Ford on the absence of link between the applicant’s offending and diagnosed post-traumatic stress disorder. In circumstances where there were additional matters referred to in the affidavit material, undisputed facts, and submissions made by the prosecution and the applicant, the applicant submitted that the sentencing Judge was in error to confine his consideration to only Dr Ford’s opinion on that singular matter.

21. It is necessary to consider what is meant in s 54(2) of the Act by the expression “evidence given on oath”.

22. A court, for the purpose of determining sentence, is not bound by the rules of evidence and may inform itself on matters relevant to the determination as it thinks fit.[47] Section 54(2) provides an exception to that general rule and requires evidence on oath. The section directs attention to the personal circumstances of an accused. What must be substantiated by evidence on oath are the personal circumstances upon which an accused relies to satisfy the court that s 54(1) should not apply. Such evidence would almost invariably be given by the accused. A clear purpose of the section is to allow the prosecution to test, if it so chooses, those identified personal circumstances. However, an accused could also rely on sworn statements, if relevant, tendered by the prosecution. Importantly, a record of interview with an accused contained within a sworn statement by the investigating officer, would not amount to “evidence on oath” of the accused. It would be a rare case where personal circumstances could be established without the accused giving evidence on oath.

    [47] Section 12 of the Sentencing Act 2017 (SA).

23. From a practical perspective, it would not be necessary for an accused to give evidence on oath about matters not in dispute. For example, many matters may be uncontroversial such as an accused’s age, what school he attended, and perhaps some, or all, of his or her work history. Submissions could be made on such matters and accepted by the sentencing court. It is those personal circumstances said to support the making of the declaration under s 54(2) that must be on oath.

24. Turning to the facts of this case, the applicant did not give evidence on oath. The applicant, before the sentencing Judge, relied primarily on his active military service in Northern Ireland […], and its effect upon him, to support his application under s 54(2). As the sentencing Judge remarked, the opinion of the psychiatrist Dr Ford was the only evidence given on oath that related to the application. The applicant tendered, without objection, a substantial amount of material that supported his submissions about his military service. This included typed documents setting out his account of his […] experiences. Dr Ford, in his affidavit, set out the history given to him by the applicant about his involvement in Northern Ireland […]. Relying on that history, Dr Ford opined that the applicant has suffered from “chronic mild post-traumatic stress disorder” beginning in the mid 1980’s.

25. The transcript of the sentencing hearing suggests that both the applicant and the prosecution accepted that Dr Ford’s affidavit set out the personal circumstances on which the applicant relied. While that was the way the matter proceeded, we do not consider that the approach was correct. Dr Ford’s recitation of what the applicant told him, and on which he relied, does not in our view amount to “evidence on oath” of the applicant for the purpose of the section. The applicant was required to give evidence on oath of his experiences in the military. That would have enabled the prosecution to have challenged the evidence if it chose to do so. Dr Ford could then rely on that evidence when proffering his opinion.

26. The sentencing Judge accepted Dr Ford’s opinion that he could “not find any major link between post-traumatic stress disorder and the alleged offending”. It follows that the sentencing Judge, having accepted the opinion of Dr Ford, must also have accepted the history the applicant gave Dr Ford.

27. Given the way in which the matter proceeded before the sentencing Judge, and that no objection was taken by the prosecution, this Court should also proceed on the basis that Dr Ford’s recitation of the applicant’s history amounts to evidence on oath for the purpose of s 54(2).

28. The applicant submitted that the sentencing Judge erred in confining his consideration to the applicant’s post-traumatic stress disorder. The sentencing Judge noted the absence of a major link between the disorder and the offending but did not refer to the applicant’s entire personal circumstances. To support that submission, the applicant relied on the remarks of Nicholson J in R v Karnage (“Karnage”)[48] where he observed:[49]

    The applicant’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 of rehabilitation.

    [48] [2019] SASCFC 82.

    [49] [2019] SASCFC 82 at [70].

29. The applicant relied upon other aspects of Dr Ford’s affidavit where, in addition to his diagnosis of a post-traumatic stress disorder, he stated that the applicant would “adjust badly in the gaol environment” and would be a “suicide risk” in gaol. Dr Ford also noted that the applicant was “a diligent and hardworking individual” who would be “able to make a contribution to the community in the future”. The applicant further submitted that there were other personal circumstances such as his age, lack of prior convictions, his exhibited remorse, good character and support in the community which ought to have been taken into account. The applicant submitted that the errors in the sentencing Judge’s approach meant this Court should exercise the discretion afresh.

30. The respondent submitted that s 54 of the Act prescribes a sentencing regime that applies only to offenders who are found to be serious repeat offenders pursuant to s 53 of the Act. To put that another way, s 54 prescribes a specific set of sentencing principles to which any inconsistent sentencing principles of general application must yield; not all the sentencing principles enunciated in the Act apply to an offender who has been found to be a serious repeat offender.

31. For example, pursuant to s 54(1)(a) a court sentencing an offender is not bound by the sentencing principle of proportionality. That is, s 10(1)(a) of the Act is not applicable. Further, the task the sentencing court undertakes pursuant to s 54(2)(a) is confined to the weighing of the offender’s personal circumstances against the weight to be given to only three purposes of sentencing. That is to say, ss 3 and 4 of the Act identify a single primary purpose of sentencing and seven secondary purposes, respectively, but only three of those eight purposes are engaged in the application of s 54(2)(a). The other sentencing principles not mentioned must necessarily, therefore, be excluded.

32. The rationale for the four-fifths rule, the respondent submitted, is also provided by s 54(2)(a). The fact that the offender has been found to be a serious repeat offender and what that represents, justifies a non-parole period of, at least, four-fifths of the length of the head sentence having regard to the paramount purpose of sentencing and personal and general deterrence.

1. On the question of Nicholson J’s remarks in Karnage, the respondent submitted that the legislation mandates a two-step process. The first step, s 54(2)(a), requires the identification of the offender’s personal circumstances (which includes matters personal or particular to the offender) and consideration of whether they are so exceptional as to outweigh the three purposes of sentencing underpinning the four-fifths rule. The second step, s 54(2)(b), is only enlivened if s 54(2)(a) is established. It is only when considering s 54(2)(b) that the court considers all the circumstances, that is, the factors ordinarily relevant to sentence.

2. While accepting that personal deterrence may have had a lesser role to play in the sentencing of the applicant, the respondent submitted that the protection of the community includes consideration of not only protection from the applicant, but from offenders in a general sense. The applicant’s offending was so serious that there exists a need to protect the community from such conduct and to deter such offending in a general sense. General deterrence was extremely important.

3. The respondent submitted that there was little in the personal circumstances of the applicant to make them so exceptional as to outweigh the three purposes of sentencing underpinning the four-fifths rule.

   Discussion

4. We accept the respondent’s submissions on the interpretation of ss 54(2)(a) and (b). That is, it is a two-step process with the first step confined to weighing the personal circumstances of an offender against the three sentencing principles. It is only when considering the second step that other general sentencing principles become relevant.

5. The test is not simply a matter of a defendant establishing exceptional personal circumstances. What the sentencing discretion involves is a determination of whether the personal circumstances of the applicant are “so exceptional” as to “outweigh the paramount consideration of protecting the safety of the community...and personal and general deterrence.”[50]

   [50]   Karpany v The Queen [2021] SASCA 48; Knight v The Queen [2021] SASCA 12.

6. Exceptional circumstances can include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. The exceptional circumstances must be personal to the offender. Exceptional circumstances may emerge from qualitative considerations (in the sense of circumstances of the type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).[51] The court must be careful not to set the test so that it becomes almost impossible to satisfy.[52]

   [51]   Karpany v The Queen [2021] SASCA 48 at [26].

   [52]   R v Skinner (2016) 126 SASR 120 at [95] (per Doyle J).

7. For the applicant to succeed in relation to the first step, his personal circumstances must be so exceptional that they outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence.

8. When considering the balancing exercise and the three sentencing factors mentioned above, it is necessary to consider the remarks of this Court in Rendic v The Queen.[53] Justice Lovell (Kelly P agreeing) observed that the purposes, whether paramount or not, are not mutually exclusive and the weight to be given to any particular factor or purpose depends on the circumstances before the court.[54] Justice Bleby considered that the fact that there is now expressed a paramount purpose “does not change the fundamental nature of the sentencing undertaking, which accepts the interrelatedness of the purposes and requires them to be considered together.”[55]

   [53] (2021) 138 SASR 214.

   [54]   Rendic v The Queen (2021) 138 SASR 214 at [7]–[9].

   [55]   Rendic v The Queen (2021) 138 SASR 214 at [39].

9. Submissions made to the sentencing Judge concentrated on the applicant’s military service, in particular his service in Northern Ireland […]. The sentencing Judge referred to the applicant’s military service and the subsequent development of his post-traumatic stress disorder. As the sentencing Judge observed, Dr Ford considered there was “no major link” between that disorder and the offending. The sentencing Judge’s remarks about the relevance of the post-traumatic stress disorder to the applicant’s offending does not mean that he did not have regard to the other personal circumstances of the applicant. The sentencing Judge’s acceptance of the affidavits of Dr Ford must mean that he accepted the background material supplied to Dr Ford. No error has been shown in the sentencing Judge’s approach. The sentencing Judge’s remarks must be seen in the context in which submissions were made. The applicant relied on the fact of his military service, and his post-traumatic stress disorder, to underpin his submission that his personal circumstances were so exceptional that the sentencing Judge should make the declaration that he not be sentenced as a serious repeat offender.

10. If the sentencing Judge did erroneously confine his consideration to the psychiatric disorder, on a reconsideration of the exercise of the discretion, we would refuse to make the declaration sought. The offending was planned, protracted and extremely serious. Taking into account his age, expressed remorse, rehabilitation and his other personal circumstances (including his military service) his personal circumstances are not so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence, even allowing for the lesser need for personal deterrence. Given that the applicant fails under s 54(2)(a) of the Act, there is no need to consider s 54(2)(b).

11. We would dismiss this ground of appeal.

    Orders

12. Permission to appeal is granted in relation to all grounds. We would nevertheless dismiss the appeal.