Baker v The King
[2022] SASCA 109
•21 October 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
BAKER v THE KING
[2022] SASCA 109
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Auxiliary Justice Buss)
21 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
Appeal against sentence.
The appellant pleaded guilty to four offences of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); two offences of making off without payment, contrary to s 144 of the CLCA; two offences of aggravated threatening life, contrary to s 19(1) of the CLCA; one offence of aggravated assault causing harm, contrary to s 20(4) of the CLCA; and one offence of using a motor vehicle without consent, contrary to s 86A of the CLCA.
The appellant’s offending was violent, random, intense and very dangerous. It involved robbery with the use of weapons, threats to life using firearms and a serious assault. The offending occurred in a suburban home, on suburban streets and in a public park.
On 16 March 2022, a District Court judge imposed a head sentence of 15 years’ imprisonment with a non-parole period of 12 years’ imprisonment. The head sentence and the non-parole period were backdated to 11 December 2020 to take account of time the appellant had already spent in custody in relation to the offending.
The appellant appealed on the grounds that the sentencing judge made an error by failing to take into account, in applying the totality principle, the sentence imposed in the Magistrates Court for other offending; the head sentence of 15 years’ imprisonment as a single sentence was, in all the circumstances, unreasonable or plainly unjust; and the sentencing judge erred by failing to take into account the secondary purpose of sentencing stated in s 4(1)(e) of the Sentencing Act 2017 (SA), namely promotion of the rehabilitation of the defendant.
The appellant asks that the matter be remitted to the District Court for resentence. The appellant wishes to adduce affidavit and psychological evidence in support of an application that the court find that there are “exceptional circumstances” within s 54(2) of the Sentencing Act 2017 (SA).
Held (by the Court), allowing the appeal:
1.After considering all relevant facts and circumstances and all relevant sentencing factors, the length of the head sentence was longer than was necessary to recognise and give effect to all relevant sentencing considerations. The length of the head sentence was unreasonable or plainly unjust.
2.The sentence imposed in the District Court is set aside.
3.The matter is remitted to the District Court for resentence on that basis that an application under s 54 is made as soon as practicable.
Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(4) 86A, 137(1), 144; Sentencing Act 2017 (SA) ss 4(1)(e), 26, 54, referred to.
Barbaro v The Queen (2014) 253 CLR 58; Cuong v The Queen [2021] SASCA 89; Curry v The State of Western Australia [2022] WASCA 36; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Hili v The Queen (2010) 242 CLR 520; Ibbs v The Queen (1987) 163 CLR 447; Labrook v The State of Western Australia [2016] WASCA 127; Lowndes v The Queen (1999) 195 CLR 665; Mann v The Queen [2019] SASCFC 155; Markarian v The Queen (2005) 228 CLR 357; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Doolan [2017] SASCFC 80; R v Hibeljic [2018] SASCFC 35; R v Holder [1983] 3 NSWLR 245; R v Kilic (2016) 259 CLR 256; R v Kloss [2020] SASCFC 88; R v Morse (1979) 23 SASR 98; R v Place (2002) 81 SASR 395; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Smoker (2016) 126 SASR 201; Stokes v The Queen [2020] SASCFC 9, considered.
BAKER v THE KING
[2022] SASCA 109Court of Appeal – Criminal: Livesey P, Doyle JA and Buss AJA
THE COURT:
The appellant appeals against sentence.
The appellant was convicted, on his pleas of guilty, of 10 counts.
The counts comprised four offences of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); two offences of making off without payment, contrary to s 144 of the CLCA; two offences of aggravated threatening life, contrary to s 19(1) of the CLCA; one offence of aggravated assault causing harm, contrary to s 20(4) of the CLCA; and one offence of using a motor vehicle without consent, contrary to s 86A of the CLCA.
On 16 March 2022, a District Court judge imposed a head sentence of 15 years’ imprisonment and a non-parole period of 12 years’ imprisonment. The head sentence and the non‑parole period were backdated to 11 December 2020 to take account of time the appellant had already spent in custody in relation to the offending.
Details of each offence, the date of the offence, the maximum penalty, the sentence imposed, the discount applied and the notional sentence for the offence are set out in the table below:
Count Offence Date Maximum penalty Sentence imposed Discount applied Notional sentence 1 Aggravated robbery 30 November 2019 Life imprisonment Six years’ imprisonment 5% Five years, eight months and 13 days’ imprisonment 2 Illegal use of motor vehicle 20 December 2019 Four years’ imprisonment with a minimum penalty of three months Six months’ imprisonment 40% Three months and 19 days’ imprisonment 3 Making off without payment 21 December 2019 Two years’ imprisonment Three months’ imprisonment 5% Two months, 26 days’ imprisonment 4 Making off without payment 22 December
2019Two years’ imprisonment Three months’ imprisonment 5% Two months, 26 days’ imprisonment 5 Aggravated robbery 22 December 2019 Life imprisonment Six years’ imprisonment 5% Five years, eight months and 13 days’ imprisonment 6 Aggravated robbery 22 December 2019 Life imprisonment Six years’ imprisonment 5% Five years, eight months and 13 days’ imprisonment 7 Aggravated threatening life 22 December 2019 12 years’ imprisonment Four years’ imprisonment 5% Three years, nine months and 19 days’ imprisonment 8 Aggravated threatening life 22 December 2019 12 years’ imprisonment Four years’ imprisonment 5% Three years, nine months and 19 days’ imprisonment 9 Aggravated assault causing harm 22 December 2019 4 years’ imprisonment Two years’ imprisonment 5% One year, 10 months and 25 days’ imprisonment 10 Aggravated robbery 22 December 2019 Life imprisonment Six years’ imprisonment 5% Five years, eight months and 13 days’ imprisonment
The sentencing judge imposed the head sentence of 15 years’ imprisonment as a single sentence for counts 1 and 3 to 10, pursuant to s 26 of the Sentencing Act 2017 (SA). The sentence for count 2 was dealt with separately because of the different applicable statutory reduction. His Honour ordered that the sentence for count 2 be served wholly concurrently with the head sentence.
By virtue of the convictions for the aggravated robbery offences committed on 30 November 2019 and 22 December 2019 and the appellant’s prior conviction on 16 January 2013 for an offence of engaging in an act to cause harm, the appellant was a serious repeat offender for the purposes of imposing sentence. No evidence was put before the sentencing judge as to exceptional personal circumstances and, consequently, his Honour was obliged to fix a non-parole period of at least four‑fifths of the length of the head sentence. See s 54(1)(b) of the Sentencing Act.
As we have mentioned, the head sentence of 15 years’ imprisonment and the non-parole period of 12 years were backdated to 11 December 2020. The appellant had been in custody since his arrest on 23 December 2019. However, between 23 December 2019 and 10 December 2020, the appellant was serving a sentence of 10 months and seven weeks’ imprisonment that had been imposed in the Magistrates Court on 18 December 2020 for a number of offences committed between 2 February 2019 and 20 December 2019.
Initially, the appellant relied upon two grounds of appeal. On 9 May 2022, Doyle JA gave permission to appeal on those grounds.
At the hearing of the appeal, counsel for the appellant sought leave to rely upon an additional ground of appeal. The Court granted the appellant leave to add the additional ground.
During debate with counsel for the appellant at the hearing of the appeal, it became apparent that counsel was advancing three propositions in support of the appeal. First, the sentencing judge made an error by failing to take into account, in applying the totality principle, the sentence of 10 months and seven weeks’ imprisonment that had been imposed in the Magistrates Court for other offending. Secondly, the head sentence of 15 years’ imprisonment as a single sentence was, in all the circumstances, unreasonable or plainly unjust. Thirdly, his Honour erred by failing to take into account the secondary purpose of sentencing stated in s 4(1)(e) of the Sentencing Act, namely promotion of the rehabilitation of the defendant. Counsel for the appellant did not challenge any of his Honour’s findings of fact.
As we will explain, we are satisfied that the head sentence of 15 years’ imprisonment as a single sentence was, in all the circumstances, unreasonable or plainly unjust. The appeal should be allowed on that basis. The head sentence and the non‑parole period imposed by his Honour should be set aside and this Court should resentence the appellant. It is therefore unnecessary to deal with the first and third propositions advanced by counsel for the appellant. Permission to appeal on the additional ground raised at the hearing of the appeal (which, in essence, advanced the third proposition) should be refused.
The facts and circumstances of the offending
As to count 1, on the evening of 30 November 2019, the appellant and two others stopped a car in which they were travelling next to the complainant HL who was walking alone on a suburban street. The appellant approached HL and attempted to take a bag that HL was carrying. During a struggle with HL, the appellant punched HL in the face. The appellant then produced a trolley pole and threatened HL by saying, “do you want me to hit you with this?”. HL released the bag which contained his mobile telephone, wallet and identification cards. The appellant returned to the car with the bag and departed.
As to count 2, at about midnight on 20 December 2019, the appellant went to a house in a suburban area. The complainant RT was at the house. The appellant took RT’s car keys from her handbag and drove away in her Hyundai car without her consent.
As to count 3, at about 1.25 pm on 21 December 2019, the appellant put $22.02 worth of petrol into the Hyundai car at a service station. He drove away without paying for the petrol.
As to count 4, at about 2.20 am on 22 December 2019, the appellant put $28.69 worth of petrol into the Hyundai car at another service station. He drove away without paying for the petrol.
As to count 5, at about 5.15 am on 22 December 2019, the appellant approached the complainant JM as JM was walking on a suburban footpath. The appellant asked JM where he was going. JM replied, “going to buy smokes”. The appellant followed JM. After JM had purchased cigarettes and was returning to his home, the appellant stopped the motor vehicle he was driving next to JM. The appellant pointed a revolver at JM’s face and demanded his bumbag. JM said there was nothing in the bumbag. The appellant demanded that JM give him half of the cigarettes or the appellant would shoot him in the face. The appellant produced a sawn‑off shotgun, pointed it at JM’s face and said, “don’t think about running because I have got this”. The appellant then said, “give me half the smokes you went and got”. The appellant alighted from the vehicle and walked towards JM, who gave the appellant his cigarettes. The appellant then punched JM in the face, causing him to fall. The appellant departed in his vehicle.
As to count 6, at about 7.00 am on 22 December 2019, the male complainant JT and the female complainant RW were having coffee while standing next to their car in a suburban street. The appellant stopped the motor vehicle he was driving about 20 to 30 metres away. He shouted, “do you know me?”. JT replied, “no”. The appellant then reversed his vehicle towards JT and RW. He alighted from his vehicle with a sawn‑off shotgun in his right hand and a revolver in his left. The appellant pointed the shotgun and the revolver at JT and said, “are you giving me attitude?”. JT responded, “no”. The appellant demanded JT’s wallet, mobile telephone and the passcode to the mobile telephone. JT complied. The appellant returned to his vehicle and drove away.
As to count 7, at 7.30 pm on 22 December 2019, the complainant RS was driving his car along a suburban street. The appellant swerved the car he was driving in front of RS’s car, blocking his way. As RS attempted to put his car in reverse and drive away, the appellant alighted and, while shouting, pointed a revolver at RS. RS reversed his car and drove away.
As to count 8, about five minutes later, the complainant RC was driving his car along another suburban street. The appellant drove his car at speed towards RC. RC stopped his car on the left side of the road to enable the appellant to pass. However, the appellant stopped his car so that the driver’s side windows of the cars (which were open) were aligned and about one foot apart. The appellant produced a revolver and pointed it at RC with the barrel of the revolver inside RC’s car. The appellant threatened RC’s life. RC slapped the revolver away from his face and drove off.
As to counts 9 and 10, at about 9.00 pm on 22 December 2019, the appellant, while holding a sawn-off shotgun and accompanied by two others, approached five male persons who were playing soccer in a public park. As he approached, the appellant uttered a threat, cocked the shotgun and demanded the keys to the complainant JG’s motor vehicle. The appellant struck another complainant AH in the face with the stock of the shotgun, causing AH to lose consciousness momentarily. JG gave the appellant the keys to the vehicle. The appellant and his two companions then departed in the vehicle.
On 23 December 2019, the appellant was arrested by police. Neither the shotgun nor the revolver used by the appellant in the offending has been recovered.
The appellant’s personal circumstances and antecedents
The appellant was aged 35 at the time of sentencing.
The appellant left school at the age of 15. He commenced but did not complete a bricklaying apprenticeship. The appellant has worked occasionally as a labourer. His life since the age of about 20 has been marred by drug abuse. When he committed the offences, the appellant was intoxicated as a result of ingesting illicit drugs.
The appellant is close to his mother. The appellant’s father died about 10 years ago. His father’s death has had a continuing impact upon the appellant.
The appellant has two children from two relationships. He has some contact with his 13-year-old son and his three-year-old daughter.
When the appellant was arrested by police for the offences he was shot with a rubber bullet. Five of his ribs were broken. He still experiences pain from that injury.
The appellant has a significant prior criminal record. He has in excess of 20 previous convictions and has previously served terms of imprisonment.
In 2015, the appellant was sentenced to two years and six months’ imprisonment for doing an act to cause harm and other offences. In 2018, the appellant was sentenced to 12 months’ imprisonment for using a motor vehicle without consent and other offences.
The offences for which the appellant was sentenced to 10 months and seven weeks’ imprisonment on 18 December 2020 in the Magistrates Court (see [8] above) comprised numerous offences committed between 2 February 2019 and 20 December 2019, including two offences of driving, using or interfering with a motor vehicle without the owner’s consent; two offences of making off without payment; one offence of unauthorised driving of a motor vehicle on a road; one offence of unlawful possession of a bank debit card; and one offence of failing to comply with a bail agreement. Some of the offences were committed during the period of the offending the subject of this appeal (that is, from 30 November 2019 to 22 December 2019).
The appellant had not previously been convicted of aggravated robbery or robbery.
The sentencing judge’s sentencing remarks
The sentencing judge referred in his sentencing remarks to the facts and circumstances of the offending and to the appellant’s personal circumstances and antecedents.
His Honour said that the offending was violent, random, intense and very dangerous. It involved robbery with the use of weapons, threats to life using firearms and a serious assault. The offending occurred in a suburban home, on suburban streets and in a public park.
The sentencing judge noted that the protection of the safety of the community and personal and general deterrence were very significant sentencing factors.
His Honour said that he had taken into account the appellant’s general background, age, physical and mental condition, character and offending history. The appellant’s abuse of illicit drugs was the primary criminogenic factor in his offending.
The sentencing judge accepted that, when the appellant was drug free, he was remorseful. His Honour also accepted that, by his pleas of guilty, the appellant had accepted responsibility for his offending.
His Honour was of the opinion that, given the appellant’s extensive offending history including the sentences of imprisonment he had previously served for other offending and given the appellant’s long‑term drug abuse, it was likely that the appellant would reoffend and that his prospects of rehabilitation were poor.
The sentencing judge noted that, as a consequence of the appellant’s status as a serious repeat offender, his Honour was not required to have regard to proportionality in sentencing him. Nevertheless, his Honour said that he had regard to the principle that “an essential aspect of sentencing an offender convicted of multiple offences is to ensure that the sentence imposed is proportionate to the overall criminality inherent in the offending and the circumstances of the offender”. His Honour considered that it was appropriate “to ensure proportionality through the imposition of a single sentence … under s 26 of the Sentencing Act”.
As we have mentioned, the sentencing judge imposed a single sentence of 15 years’ imprisonment. His Honour expressed the view that “a sentence of 15 years is appropriate to both reflect and be proportionate to the overall criminality inherent in [the] offending and [the appellant’s] personal circumstances”.
Counsel for the appellant’s submissions
Counsel for the appellant’s submissions in relation to the second proposition he advanced (that is, the proposition that the head sentence of 15 years’ imprisonment as a single sentence was, in all the circumstances, unreasonable or plainly unjust) were, in summary, as follows.
Counsel argued that it was significant that, after the appellant was remanded in custody for the offences, he became drug‑free for the first time in about 15 years and that the appellant had evinced an intention to remain drug‑free. The appellant’s abuse of illicit drugs had driven the offending in question and his previous offending.
Counsel noted that some of the offences for which the appellant was sentenced in the Magistrates Court (see [8] above) were committed during the period in which counts 1 to 10 were committed.
Counsel referred to the sentences which have been imposed in a number of previous cases; in particular, R v Place;[1] R v Randall-Smith and Davi;[2] R v Smoker;[3] and R v Kloss.[4]
[1] R v Place (2002) 81 SASR 395.
[2] R v Randall-Smith and Davi (2008) 100 SASR 326.
[3] R v Smoker (2016) 126 SASR 201.
[4] R v Kloss [2020] SASCFC 88.
Counsel argued that the sentence imposed upon the appellant in the present case was “generally harsher” than the sentences imposed in the previous cases counsel had cited.
It was submitted that the sentence imposed upon the appellant was “outside the permissible range” and was manifestly excessive.
Counsel for the Crown’s submissions
Counsel for the Crown’s submissions in relation to the second proposition advanced by counsel for the appellant were, in summary, as follows.
Counsel noted that in Place this court stated that the sentencing standard for the offence of armed robbery is six to eight years’ imprisonment. Counsel also referred to the sentences which had been imposed in a number of previous cases including R v Doolan;[5] Mann v The Queen;[6] and Stokes v The Queen.[7]
[5] R v Doolan [2017] SASCFC 80.
[6] Mann v The Queen [2019] SASCFC 155.
[7] Stokes v The Queen [2020] SASCFC 9.
Counsel submitted that, in the present case, the head sentence of 15 years’ imprisonment as a single sentence was within the range of permissible sentences for a multi‑faceted course of criminal conduct involving four counts of aggravated robbery and two counts of aggravated threatening life.
Counsel emphasised that the offending involved:
(a)multiple victims (in particular, eight victims for the major indictable offences);
(b)multiple uses of weapons, including a trolley pole, a revolver and a sawn‑off shotgun;
(c)multiple applications of force, including striking one of the victims with the stock of the shotgun which rendered the victim unconscious momentarily; and
(d)multiple threats in the course of carrying out each of the major indictable offences.
Counsel submitted that the sentence imposed upon the appellant was not manifestly excessive.
The merits of the appeal
A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender’s personal circumstances. See R v Morse;[8] R v Hibeljic;[9] and Cuong v The Queen.[10]
[8] R v Morse (1979) 23 SASR 98 at 99 (King CJ; White & Mohr JJ agreeing).
[9] R v Hibeljic [2018] SASCFC 35 at [43] (Doyle J; Peek & Blue JJ agreeing).
[10] Cuong v The Queen [2021] SASCA 89 at [44] (Livesey JA).
As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen,[11] the maximum penalty for an offence “provide[s], taken and balanced with all of the other relevant factors, a yardstick”. See also Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym).[12] Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of the offence in question to the worst category, being those offences so grave as to warrant the maximum penalty. See Ibbs v The Queen;[13] and R v Kilic.[14]
[11] Markarian v The Queen (2005) 228 CLR 357 at [31].
[12] Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428 at [10] (Kiefel CJ, Bell & Keane JJ).
[13] Ibbs v The Queen (1987) 163 CLR 447 at 452 (Mason CJ, Wilson, Brennan, Toohey & Gaudron JJ).
[14] R v Kilic (2016) 259 CLR 256 at [19] (Bell, Gageler, Keane, Nettle & Gordon JJ).
When an offender is to be sentenced for multiple offences then, subject to the Sentencing Act (in particular, subject to s 54(1)(a)), the totality principle applies. The totality principle requires, relevantly, that the total sentence imposed on an offender who has committed multiple offences must be proportional to (that is, bear a proper relationship with) the overall criminality involved in all of the offences, viewed in their entirety, and having regard to all relevant facts and circumstances, including those referrable to the offender personally, and the total sentences imposed in comparable cases. See Mill v The Queen;[15] Postiglione v The Queen;[16] and Place [85] ‑ [89].
[15] Mill v The Queen (1988) 166 CLR 59 at 62 - 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[16] Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J) and 340 - 341 (Kirby J).
There are decisions which have held that, in some circumstances, a sentence that has already been completed may properly be taken into account in applying the totality principle. See Labrook v The State of Western Australia.[17] An example is where an offender commits multiple offences and, after the commission of all of the offences, the offender is sentenced for some of them and, following the completion of that sentence, is sentenced for some or all of the others. See Mill. Although Mill was concerned with offences committed in different jurisdictions, the approach taken by the High Court in Mill is not confined to cases where sentences are imposed by different courts in different jurisdictions. See Labrook [35]. See also Curry v The State of Western Australia.[18]
[17] Labrook v The State of Western Australia [2016] WASCA 127 at [34] ‑ [38] (Mitchell J; McLure P & Mazza JA agreeing).
[18] Curry v The State of Western Australia [2022] WASCA 36 at [56] ‑ [57] (Buss P, Mitchell & Beech JJA).
In any event, an already completed sentence is part of an offender’s personal circumstances and antecedents and, on that basis, is a relevant sentencing factor.
The practical effect of the totality principle is, ordinarily, to arrive at an appropriate total sentence which is less than the total sentence that would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See R v Holder.[19]
[19] R v Holder [1983] 3 NSWLR 245 at 260 (Street CJ).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is, of course, relevant in deciding whether a sentence is manifestly excessive (or manifestly inadequate). A range of sentences customarily imposed for an offence provides a yardstick or reference point for the purpose of ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect. See Hili v The Queen;[20] and Barbaro v The Queen.[21]
[20] Hili v The Queen (2010) 242 CLR 520 at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[21] Barbaro v The Queen (2014) 253 CLR 58 at [41] (French CJ, Hayne, Kiefel & Bell JJ).
When this Court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the Court’s decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the permissible range.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro [25].
The discretion conferred on sentencing judges is, of course, of fundamental importance. This Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[22]
[22] Lowndes v The Queen (1999) 195 CLR 665 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
In the present case, we have had regard to the sentencing dispositions in a range of cases, including the cases cited by counsel for the appellant and counsel for the Crown. It is unnecessary to reproduce the facts and circumstances or the sentences imposed in all of the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
The most comparable of the previous cases are Place and Randall‑Smith.
We note that:
(a)In Place, the offender committed two more robberies than the present appellant, but the present appellant received a sentence that is 3 years longer than the sentence imposed on the offender in Place.
(b)In Randall‑Smith, the offenders committed two more robberies than the present appellant and a further attempted robbery in company, over a much longer period, with a significantly greater level of sophistication and planning, and stole a substantially larger amount of money. Despite those differences, the present appellant received a sentence that is only one year less than the sentence of 16 years’ imprisonment imposed on each of the offenders in Randall‑Smith.
In the present case, the very serious nature of the appellant’s offending is apparent from the unchallenged facts and circumstances of the offending which we have recounted at [13]‑[21] above. As the sentencing judge rightly observed, the offending was violent, random, intense and very dangerous. The appellant committed robberies by the use of weapons, including firearms; in two instances by making threats to life; and in one instance by a serious assault. The offending was carried out in urban and public settings. The most significant sentencing factors, in the present case, were the protection of the safety of the community and personal and general deterrence.
However, despite the very serious nature of the appellant’s offending, we are of the opinion, having regard to all relevant facts and circumstances and all relevant sentencing factors, that the head sentence of 15 years’ imprisonment as a single sentence was materially higher than, and materially inconsistent with, the standards of sentencing customarily observed with respect to similar offending.
We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the head sentence was longer than was necessary to recognise and give effect to all relevant sentencing considerations. The length of the head sentence was unreasonable or plainly unjust. That is the only conclusion reasonably open when the length of the head sentence is viewed from the perspective of:
(a)the maximum penalties;
(b)the facts and circumstances of the offending;
(c)the seriousness of the offending;
(d)the vulnerability of the victims;
(e)the general pattern of sentencing for offending of this kind;
(f)the importance of the protection of the safety of the community and personal and general deterrence as sentencing factors;
(g)the time the appellant spent in custody between 23 December 2019 and 10 December 2020 when he was serving the sentence of 10 months and seven weeks’ imprisonment imposed in the Magistrates Court for other offences, some of which were committed during the period in which counts 1 to 10 were committed;
(h)the appellant’s personal circumstances and antecedents;
(i)all mitigating factors; and
(j)all statutory and judge‑made sentencing principles, including the sentencing purposes set out in ss 3 and 4 of the Sentencing Act.
The second proposition advanced by counsel for the appellant has been made out. The appeal should be allowed and the head sentence and the non‑parole period imposed by his Honour should be set aside.
The resentencing of the appellant?
Ordinarily this Court would proceed to resentence the appellant. In this case the appellant asks that the matter be remitted. The appellant wishes to put forward affidavit and psychological evidence in support of an application made under s 54(2) of the Sentencing Act that the court find that there are “exceptional circumstances” so that he is not to be sentenced as a “serious repeat offender”.[23]
[23] Otherwise, by s 54(1)(b) of the Sentencing Act, the non-parole period must be at least four‑fifths the length of the head sentence.
Whether there is any merit in the foreshadowed application is not a matter that this Court can assess without considering the foreshadowed material. We were told that it will take some months to obtain expert psychological evidence.
As this Court does not have all of the material necessary to resentence the appellant we will, albeit with some reluctance, remit the matter for resentence on the basis that an application under s 54 is made as soon as practicable.