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[2002] SASC 258
Supreme Court of SA
2002-10-24
Gray J, Per Gray J
Original judgment source is linked above.
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged[47]. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences[48].
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
"... it would be a retrograde step to subsume the adjustments which the law requires to be taken into account in sentencing by a 'return to unexplained judicial intuition'. Greater transparency and honesty are the hallmarks of modern public administration and the administration of justice. In sentencing we should not turn our backs on these advances."
The remaining judge, Callinan J, did not address this aspect of the matter.
See, for example, R v Osenkowski (1982) 30 SASR 212 and R v Everett [1994] HCA 49; (1994) 181 CLR 295.
The maximum penalty for armed robbery and for assault with intent to rob is imprisonment for life. The maximum penalty for attempted rape and assault with attempt to rape is imprisonment for 12 years. The maximum penalty for indecent assault is imprisonment for eight years. The maximum penalty for a subsequent offence of illegal use of a motor vehicle, is imprisonment for between three months and four years. For receiving the maximum penalty is imprisonment for eight years.
(1981) 28 SASR 362 at 363
[1994] HCA 49; (1994) 181 CLR 295 at 299 and 300
(1976-1977) 137 CLR 293 at 310
[1997] SASC 6187; (1997) 69 SASR 150 at 159
Kirby J expressed approval of McHugh J in Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538 at [61-62]
The gun was real but had been disabled from use. However this was not known by the victims.
R v Major [1998] SASC 7089; (1998) 70 SASR 488
"JUDGE: What do you say about a third for the plea of guilty and so on? That is fairly substantial.
"COUNSEL FOR It is substantial but it is warranted in this case. There was an indication of the pleas
THE CROWN: of guilty at a very early stage in relation to this matter and the pleas have clearly avoided the need for these women to give evidence of a most distressing incident; so a third as a discount is an appropriate discount."
[1999] HCA 46; (1999) 198 CLR 111 at [16-19]. See also Hayne J at [119-121]
(2002) 76 (3) ALJR 382 at [69], [73]
(2002) 76 (3) ALJR 382 at [71]
[1988] HCA 14; (1988) 164 CLR 465 at 476-477
R v Newton [2002] SASC 36 at [46-47]
R v Newton [2002] SASC 36 at [63]
[1997] HCA 26; (1997) 189 CLR 295 at 307-308
See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63
[1992] FCA 7; (1992) 33 FCR 536 at 541
Unreported, Court of Criminal Appeal of SA; 20 April 1988
R v Holder [1983] 3 NSWLR 245 at 260
Holder [1983] 3 NSWLR 245 at 260
[2] R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300 (Victorian Full Court).
[4] Gleeson CJ confined himself to dealing with the "guidelines" which had been adopted by the Court of Criminal Appeal of New South Wales. Kirby J did not agree with the criticism of the "two-stage" approach. He said (ibid para 102):
"... it would be a retrograde step to subsume the adjustments which the law requires to be taken into account in sentencing by a 'return to unexplained judicial intuition'. Greater transparency and honesty are the hallmarks of modern public administration and the administration of justice. In sentencing we should not turn our backs on these advances."
The remaining judge, Callinan J, did not address this aspect of the matter.
[5] [1999] HCA 46; (1999) 198 CLR 111 at para [15] page 121.
[19] See, for example, R v Osenkowski (1982) 30 SASR 212 and R v Everett [1994] HCA 49; (1994) 181 CLR 295.
[20] The maximum penalty for armed robbery and for assault with intent to rob is imprisonment for life. The maximum penalty for attempted rape and assault with attempt to rape is imprisonment for 12 years. The maximum penalty for indecent assault is imprisonment for eight years. The maximum penalty for a subsequent offence of illegal use of a motor vehicle, is imprisonment for between three months and four years. For receiving the maximum penalty is imprisonment for eight years.
[21] (1981) 28 SASR 362 at 363
[23] [1994] HCA 49; (1994) 181 CLR 295 at 299 and 300
[24] (1976-1977) 137 CLR 293 at 310
[25] [1997] SASC 6187; (1997) 69 SASR 150 at 159
[26] Kirby J expressed approval of McHugh J in Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538 at [61-62]
[28] The gun was real but had been disabled from use. However this was not known by the victims.
[29] R v Major [1998] SASC 7089; (1998) 70 SASR 488
[31] "JUDGE: What do you say about a third for the plea of guilty and so on? That is fairly substantial.
"COUNSEL FOR It is substantial but it is warranted in this case. There was an indication of the pleas
THE CROWN: of guilty at a very early stage in relation to this matter and the pleas have clearly avoided the need for these women to give evidence of a most distressing incident; so a third as a discount is an appropriate discount."
[32] [1999] HCA 46; (1999) 198 CLR 111 at [16-19]. See also Hayne J at [119-121]
[34] (2002) 76 (3) ALJR 382 at [69], [73]
[35] (2002) 76 (3) ALJR 382 at [71]
[37] [1988] HCA 14; (1988) 164 CLR 465 at 476-477
[40] R v Newton [2002] SASC 36 at [46-47]
[41] R v Newton [2002] SASC 36 at [63]
[43] [1997] HCA 26; (1997) 189 CLR 295 at 307-308
[44] See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63
[45] [1992] FCA 7; (1992) 33 FCR 536 at 541
[46] Unreported, Court of Criminal Appeal of SA; 20 April 1988
[47] R v Holder [1983] 3 NSWLR 245 at 260
[48] Holder [1983] 3 NSWLR 245 at 260
[49] Regard has been had to time spent in custody
R
CAPLIKAS No. SCCRM-02-184 [2002] SASC 258
- Criminal Law (Sentencing) Act 1988 s 18A, referred to.
- R v Wong [2001] HCA 64; (2002) 185 ALR 233;
- R v Williscroft [1975] VicRp 27; [1975] VR 292;
- AB v R [1999] HCA 46; (1999) 198 CLR 111;
- R v Powell (2001) 81 SASC 9;
- R v Place [2002] SASC 101; (2002) 81 SASR 395;
- R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383;
- R v Cameron (2002) 187 ALR 65;
- R v Knight (1981) 26 SASR 573;
- R v Rossi (1988) 142 LSJS 451;
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59;
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295;
- R v Major [1998] SASC 7089; (1998) 70 SASR 488;
- R v Osenkowski (1982) 30 SASR 212;
- The Queen v Wilton (1981) 28 SASR 362;
- Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295;
- Griffiths v The Queen (1976-1977) 137 CLR 293;
- Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150;
- Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538;
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465;
- R v Newton [2002] SASC 36;
- R v Symonds [1999] SASC 217;
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59;
- Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536;
- R v Holder [1983] 3 NSWLR 245, considered.
"111 In our opinion this Court should exercise the power contained in s 18A of the Sentencing Act to fix a single penalty in respect of all offending. However, in order to arrive at that single penalty, it is appropriate to have regard to the individual sentences that would have been fixed if the power in s 18A did not exist. Ultimately, the question of totality must be addressed. In order to reach the point of considering totality, the preferred approach is to determine the appropriate sentences for the individual offences and to decide whether, totality aside, the circumstances would ordinarily require those sentences to be concurrent or cumulative. In the absence of s 18A, after taking into account totality and determining the appropriate total period to be served, that period could be achieved by making the sentences wholly or partially concurrent: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 676-681.
(2002) 185 ALR 233
(1999) 198 CLR 111
(2002) 81 SASR 395
(2000) 49 NSWLR 383
(2002) 187 ALR 65
(1981) 26 SASR 573
(1988) 166 CLR 59
(1997) 189 CLR 295
(1998) 70 SASR 488
(1982) 30 SASR 212
(1981) 28 SASR 362
(1994) 181 CLR 295
(1997) 69 SASR 150
(2000) 74 ALJR 1538
(1988) 164 CLR 465
(1992) 33 FCR 536
(1998) 194 CLR 610
(2002) 81 SASR 8