Donna Marie Thompson v R No. SCCRM 94/288 Judgment No. 4737 Number of Pages 4 Criminal Law and Procedure Appeal against Sentence

[1994] SASC 4737

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL PRIOR(2), OLSSON(3) AND PERRY(1) JJ

CWDS
Criminal law and procedure - appeal against sentence - assault with intent to rob - Appeal against sentence of 3 years imprisonment for street assault on an elderly lady who was punched and kicked in an unsuccessful attempt to steal her handbag - the sentencing Judge sentenced to a maximum of life imprisonment when true maximum was 9 years and 4 months - sentence reduced to 14 months imprisonment with non-parole period of 8 months, after allowing for period in custody and changes in the sentencing laws operative from 1 August 1994. Criminal Law Consolidation Act 1935s158, s270a(3) (c) and s270b(3), s155.

HRNG ADELAIDE, 18 August 1994 #DATE 18:8:1994

Counsel for appellant:     Mr R N H Mayne

Solicitors for appellant:    Calderwood Scammell and Co

Counsel for respondent:     Mr J A Powell

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant appeals against the sentence imposed upon her after she had been found guilty following a trial before a judge and jury in the criminal jurisdiction of the District Court of assault with intent to rob.

2. The sentence appealed against is a term of imprisonment of 3 years for that offence, to which was added two terms of 3 months and 2 months' imprisonment respectively, which were ordered to be served concurrently, being sentences which had previously been suspended upon the appellant's entering into good behaviour bonds which were allegedly breached by the conviction on the assault charge.

3. The total head sentence was, therefore, 3 years and 3 months, against which the learned sentencing judge fixed a non-parole period of 30 calendar months. In addition, the appellant was ordered to pay $60 towards the cost of replacement of the lenses in the glasses of the victim, which were broken.

4. The appellant is a 23 year old woman with an appalling record of street offences and possessing cannabis stretching back to 1987.

5. The assault in question was a vicious assault on a 50 year old woman who was walking to her home from a supermarket. The appellant approached her from behind, hit her, kicked her and struggled in an endeavour to take her handbag. When she failed to do so, the appellant left the victim lying in the street while she made her way off.

6. The assault was witnessed by occupants in a nearby house. The appellant was arrested soon afterwards on the same day in the vicinity of the crime.

7. The trial took an unusual twist, in that before the completion of the prosecution case, the appellant did not turn up following an overnight adjournment, and was not rearrested until after she had been convicted by the jury in her absence.

8. The grounds of appeal are that the sentencing discretion miscarried in that the appellant
    (a) was wrongly sentenced on the basis that the maximum
    penalty for the offence of which she was convicted was life
    imprisonment; and
    (b) had added to the sentence for the offence of which she
    was convicted a further 3 months and 1 day imprisonment as a
    result of the purported estreatment of two bonds, which
    bonds had already been estreated in the Port Adelaide
    Magistrates Court on 6 July 1992.

9. It is conceded on both sides that ground (b) is made out, in that the learned sentencing judge was under a misapprehension as to whether or not the appellant had been dealt with for breach of bond.

10. It follows that the sentences respectively of 3 months and 2 months' imprisonment imposed as to that aspect of the matter must be quashed.

11. As to the suggestion that the learned sentencing judge sentenced to a wrong maximum in fixing the head sentence on the assault conviction, I think it is clear enough that he was led into error in that respect by reason of the fact that although the information correctly described the offence as assault with intent to rob, it wrongly referred to s.158 of the Criminal LawConsolidation Act 1935. Section 158 deals with various kinds of robbery with violence, but assault with intent to rob is now dealt with under the generic offence of assaults with intent to commit a felony or indictable misdemeanour created by s.270b of the Act.

12. Under s.270b(3) the penalty for a assault caught by the section is either imprisonment for a term not exceeding 7 years, or imprisonment for a term not exceeding the maximum term that may be imposed for an attempt to commit the principal offence, whichever is the greater.

13. The principal offence in this case is robbery from the person, which, pursuant to s.155 of the Act, attracts a maximum sentence of 14 years' imprisonment. Under s.270a(3)(c), the penalty for an attempt is two-thirds of the maximum penalty prescribed for the principal offence.

14. It follows that the maximum term for this offence was 9 years and 4 months.

15. In the result, the sentencing discretion miscarried in that the learned sentencing judge sentenced to a wrong maximum. This conclusion was not challenged by Mr Powell, who appeared for the Crown.

16. It follows that, whether or not the sentence is regarded as manifestly excessive, it is necessary for this court to reconsider it.

17. It is true that it is not incumbent upon this Court to come necessarily, to the conclusion that because of the error which has been exposed, the sentence should be regarded as one with which this court should interfere. However, it seems to me that despite the appellant's bad record and the vicious and unprovoked nature of the assault, 3 years' imprisonment is somewhat high.

18. We have had the benefit in this court, which was not afforded the learned sentencing judge, of two reports, one a pre-sentence report, and the other a very detailed psychological report which has been put forward by Mr Mayne for the appellant, with the consent of the respondent.

19. Allowing for the matters disclosed in those reports, I am reinforced in the view that it is a proper case in which this court should interfere.

20. It does appear that the appellant has never been sentenced to a custodial term of imprisonment before now, but there is no question but that such a term must now be imposed.

21. I would allow the appeal for the purpose of quashing the sentence on both the assault conviction and on the breaches of bond.

22. On the assault conviction, I would substitute a sentence of 14 months' imprisonment to run from now, and I would fix a non-parole period of 8 months. Those sentences have been calculated on the basis that the appellant has been in custody since 2 June this year, which, after making appropriate allowances, should be regarded as giving to her a credit of 4 months.

23. It follows that, in my opinion, the appropriate penalty would have been, if running from 2 June 1994, 18 calendar months' imprisonment with a non-parole period of 12 months. However, for the reason which I have given, in view of the fact that the sentence will date from now, I would impose the head sentence and non-parole period which I have indicated. That also takes into account that in view of the fact that the sentences are imposed now, the changes to the sentencing regime which have come into effect since 1 August this year will apply, with the result that there will be no remissions on the head sentence imposed or as to the non-parole period.

24. In my opinion, the order for payment of compensation for the glasses should remain.

25. I would allow the appeal for the purpose of substituting the orders which I have indicated.

JUDGE2 PRIOR J I agree.

2. The order, therefore, is appeal allowed. The sentence of 3 years and 3 months is set aside, and we substitute for the breach of s.270b of the Criminal Law Consolidation Act a sentence of 14 months' imprisonment with a non-parole period of 8 months, the sentence and non-parole period dating from this day. The order of compensation made in the court below is made again here.

JUDGE3 OLSSON J I also agree.