John Brian Challenger v R No. 4227 Judgment No. SCCRM 93/98 Number of Pages 3 Criminal Law and Procedure Sentence

[1993] SASC 4227

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Sentence - robbery with violence - mental condition diminishing culpability - limited effect on sentencing of repeated offender - necessity to protect public - sentence 3 1/2 years' imprisonment cumulative on activated 3 month sentence with non-parole period 2 years 9 months, not excessive.
Sentence - obligation to fix commencing date - effect of failure to fix commencing date. Criminal Law (Sentencing) Acts.30.

HRNG ADELAIDE, 19 October 1993 #DATE 19:10:1993
Counsel for appellant:     Mr N Vadasz
Solicitors for appellant:    Nicholas Vadasz
Counsel for respondent:     Mr P J L Rofe QC with
   Ms R C Gray
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence passed in the District Court upon the appellant for the crime of robbery with violence. The crime, to which the appellant pleaded guilty, was a breach of a bond upon a condition of which a sentence of three months imprisonment for larceny had previously been suspended. The learned sentencing judge on this occasion revoked that suspension. He ordered that the appellant be imprisoned for the offence of robbery with violence for a term of three and a half years cumulative upon the sentence of three months imprisonment, making a total head sentence of three years and nine months. His Honour fixed a non-parole period of two years and nine months. 2. There is a reference in His Honour's sentencing remark to taking into account the period which the appellant had already spent in custody prior to the passing of sentence; that period was about four and a half months. However, as His Honour did not fix a commencing date for the sentence and non-parole period they commence by virtue of s.30(6) of the Criminal Law(Sentencing) Act on the date upon which the appellant was taken into custody, which was 23 October 1992. 3. There has been some confusion as to the true commencing date and this case underlines the importance of compliance by judges and magistrates with the obligation imposed by s.30 to fix a date for the commencement of sentence and non-parole period. 4. The offence was a serious one. The victim was a woman who was walking in Franklin Street city at about 9 p.m. The appellant approached her, pushed her shoulders with his hands in a forceful manner about two or three times, thereby pushing her to the ground in the laneway of a church. The woman screamed and tried to get away. The appellant punched her face with his fist at least four times. He placed his hand over her mouth and told her not to scream. He pulled at her handbag and then ran off with her purse. The appellant was apprehended by some citizens who came on the scene in response to the screams. 5. The appellant is 42 years of age. He is unfortunate in that he suffers from certain psychiatric and intellectual disabilities and, in particular, he appears to suffer from a psychotic illness of some kind, the nature of which was not finally determined by the psychiatrists who examined him. No doubt that condition does operate to diminish his subjective blameworthiness to some degree. However, his record is very bad. He has been convicted on a number of occasions in a number of states. The most serious crimes of which he has been convicted are unlawful aggravated assault on a female in 1977 for which he was sentenced to 11 months imprisonment, demanding money with menaces with intent to steal in 1977 for which he was sentenced to two years imprisonment, armed robbery in 1982 for which he was sentenced to seven and a half years imprisonment with a minimum of six years and, in addition to that, there have been a number of less serious offences. 6. I mention that on 11 May 1992, which was only a few months before the present offence, he was given a suspended sentence of three months imprisonment and placed on a bond to be of good behaviour for two years for the offence of larceny, and that was the sentence which was activated by the judge's order which is under consideration. On 14 September 1992 he was ordered community service also for an offence of larceny. It is obvious in those circumstances that the commission of this serious crime called for a severe sentence of imprisonment. 7. Mr Vadasz, who appeared for the appellant, has contended that the sentence imposed was excessive. He has based his submissions primarily upon the appellant's mental condition and the diminished responsibility which he contends results from it. I think that there may be a considerable degree of diminution in subjective responsibility or blameworthiness resulting from the appellant's mental condition but it is also clear, from the nature of this offence and from his record, that a severe deterrent penalty is necessary for the protection of the public. There is a limit to the leniency which can be extended to a repeated offender by reason of diminished responsibility. 8. The appellant, notwithstanding his mental problems, is responsible for his actions. He is able to restrain himself from committing offences. It is absolutely necessary for the protection of the public that he be persuaded to do so, and the only means by which the court can apply that persuasion is a sentence which may operate as an effective deterrent to him. I think that in a case of this kind personal deterrence assumes considerable importance. 9. It seems to me that the learned judge has taken all relevant considerations into account. He has exercised his discretion in a way which appears to me, in all the circumstances of the case, to be entirely reasonable and I would dismiss the appeal.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 DEBELLE J I agree and have nothing to add.