Mann v The Queen
[2019] SASCFC 155
•17 December 2019
Supreme Court of South Australia
(Court of Criminal Appeal)
MANN v THE QUEEN
[2019] SASCFC 155
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
17 December 2019
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 - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
This is an appeal against sentence. The appellant was sentenced by a Judge of the District Court to 20 years imprisonment with a 16-year non-parole period for a total of 11 offences committed on 31 May 2015, 3 June 2015 and 13 June 2015. The appellant contends that the sentence imposed is manifestly excessive in the following ways:
1. in the individual sentence imposed for the 31 May 2015 aggravated robbery;
2. in failing to give weight to the extra-curial punishment received by the appellant by way of being shot by police in the course of offending on 13 June 2015;
3. in making the sentence for the second count of aggravated possession of a prescribed firearm partially rather than wholly concurrent; and
4. in the application of the principle of totality when imposing the final sentence.
Held, per Parker J (Kelly J and David AJ agreeing) allowing the appeal:
1. The sentencing Judge did not err in fixing a head sentence of six years imprisonment for the aggravated robbery committed on 31 May 2015. The offending was a serious example of its kind in that it involved a very dangerous weapon and a significant level of violence. That the victims are drug users does not mitigate the appellants offending.
2. The sentencing Judge took into account the appellant’s physical and psychological injuries to the extent that they were relevant. What weight was given to that issue was a matter for the sentencing Judge.
3. The sentencing Judge erred in failing to order that the second offence of aggravated possession of a prescribed firearm be served concurrently. The second firearm offence was part of one multi-faceted course of criminal conduct. That the appellant left one firearm in the car and utilised the other firearm during the course of offending is an artificial distinction.
4. The second firearm offence is to be served concurrently with the sentences for the offences committed on 13 June 2015.
5. While the appellant committed a series of serious and in certain respects materially different offences over a period of three weeks, a cumulative starting point of 19 years imprisonment is excessive in all the circumstances.
6. The total head sentence is to be 17 years imprisonment. The non-parole period is to be 13 years, seven months and six days. Both the head sentence and non-parole period are to be backdated to 13 June 2015.
Criminal Law Consolidation Act 1935 (SA); Firearms Act 1977 (SA); Sentencing Act 2017 (SA); Summary Offences Act 1953 (SA), referred to.
R v Place (2002) 81 SASR 395, applied.
R v Cullen [2015] SASCFC 44, distinguished.
R v Barci (1994) 76 A Crim R 103; R v Daetz (2003) 139 A Crim R 398, discussed.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Beare v Police [2005] SASC 256; Dinsdale v The Queen (2000) 202 CLR 321; R v Copeland (No 2) (2010) 108 SASR 398; R v Creed (1985) 37 SASR 566; R v Harradine [2012] SASCFC 103; R v Hutchins [2009] SASC 275; R v Jongewaard (2009) 266 LSJS 283; R v Khim [2002] SASC 343; R v Mavropolous [2009] SASC 190; R v Randall-Smith (2008) 100 SASR 326; R v Rerich [2016] SASCFC 78; R v Richardson [2010] SASC 88; R v Smoker (2016) 126 SASR 201; R v W, PL [2017] SASCFC 119, considered.
MANN v THE QUEEN
[2019] SASCFC 155Court of Criminal Appeal: Kelly and Parker JJ, David AJ
KELLY J: I agree that the appeal should be allowed for the reasons given by Parker J. I agree with the orders proposed by Parker J.
PARKER J: This is an appeal against sentence. On 14 June 2019, the appellant was sentenced by a judge of the District Court to 20 years imprisonment with a 16‑year non-parole period for a total of 11 offences committed on 31 May 2015, 3 June 2015 and 13 June 2015.
The appellant pleaded guilty to six offences and was convicted by a jury of the remainder. Due to the timing of his guilty pleas to the six offences, the appellant was entitled to the statutory discount of up to 20% and 30% on the penalties imposed for those offences.
The penalties imposed by the sentencing Judge were as follows:
Offence
Maximum penalty
Discount
Penalty imposed
31 May 2015
Aggravated Robbery
Criminal Law Consolidation Act 1935 (SA) (“CLCA”) s 137(1)
(Holden Commodore)
Life Imprisonment
Nil
Imprisonment 6 years
Aggravated Drive Dangerously to Escape Police Pursuit
CLCA s 19AC(1)
Imprisonment 5 years and licence disqualification not less than 2 years
Nil
Imprisonment 12 months to be served cumulatively
3 June 2015
Aggravated Robbery
CLCA s 137(1)
(Para Hills Post Office)
Life Imprisonment
Nil
Imprisonment 7 years to be served cumulatively
13 June 2015
Aggravated Threatening Life
CLCA s 19(1)
(Officer G)
Imprisonment 12 years
Nil
Imprisonment 5 years
Aggravated Threatening Life
CLCA s 19(1)
(Officer S)
Imprisonment 12 years
Nil
Imprisonment 5 years to be served concurrently with first aggravated threaten life offence.
Aggravated Possess Prescribed Firearm without Licence
Firearms Act 1977 (SA) s 11(7a)
(Shotgun on roof)
$75 000 fine or Imprisonment 15 years
30%
Imprisonment 2 years, 1 month and 6 days (reduced from 3 years) to be served concurrently with aggravated threatening life offences.
Aggravated Serious Criminal Trespass
CLCA s 169(1)
(Ouwens Casserly Real Estate)
Imprisonment 20 years
30%
Imprisonment 1 year and 9 months (reduced from 2 years and 6 months) to be served concurrently with head sentence.
Theft
CLCA s 134(1)
(Ouwens Casserly Real Estate)
Imprisonment 10 years
20%
Imprisonment 4 months, 3 weeks and 3 days (reduced from 6 months) to be served concurrently with total head sentence.
Unlawfully on Premises
Summary Offences Act 1953 (SA) s 17
(Neways International)
Imprisonment 2 years
20%
Theft by receiving
CLCA s 134(1)
(Highgate Supermarket)
Imprisonment 10 years
20%
Aggravated Possess Prescribed Firearm without a Licence
Firearms Act 1977 (SA) s 11(7a)
(Shotgun in car)
$75,000 fine or Imprisonment 15 years
30%
Imprisonment 2 years, 1 months and 6 days (reduced from 3 years) to be served partially cumulatively with total head sentence.
The overall head sentence was reduced to 20 years imprisonment by making the sentence relating to the possession of the shotgun found in the car partially concurrent.
Ground of appeal
The appellant advances one ground of appeal, namely, that the sentence is, in all the circumstances, manifestly excessive.
The appellant complains that the sentence is manifestly excessive in a number of ways:
·in the individual sentence imposed for the 31 May 2015 aggravated robbery;
·in failing to give weight to the extra-curial punishment received by the appellant by way of being shot by police in the course of offending;
·in making the sentence for the second firearm offence partially rather than wholly concurrent; and
·in the application of the principle of totality when imposing the final sentence.
The appellant seeks orders that the sentence be set aside and that a lesser sentence be imposed by this Court.
Background of the offending
The offences were committed over a two-week period from 31 May to 13 June 2015.
William Coulthard and Shiranta Coaby had purchased methylamphetamine from Rebecca Moroney-Gray. There was a dispute over the quality of the drugs and Ms Moroney-Gray agreed to meet the purchasers in a parking area in Prospect to replace them.
On 31 May 2015, Ms Moroney-Gray attended the parking area to exchange the drugs. She was accompanied by the appellant. The appellant approached the Commodore vehicle driven by Mr Coulthard and pointed a sawn-off shot gun at his face through the driver’s side window. The appellant demanded Mr Coulthard and Ms Coaby get out of the vehicle and the appellant drove away in it.
Within half an hour of the vehicle being stolen it was located by police at a service station. A police pursuit ensued. The police pursued the vehicle on Main Road, Hampstead Road and the streets in between. It was detected by a speed camera at the Gepps Cross intersection travelling at 81 kilometres per hour, well over the 60 kilometres per hour speed limit. The pursuit was terminated and the vehicle later located by police at the appellant’s address.
For this offending, the appellant was charged with one count of aggravated robbery and one count of aggravated drive dangerously to escape police pursuit.
On 3 June 2015, the appellant attended at the Para Hills Post Office. He held a sawn-off shotgun at a staff member and by demands and threat of the shotgun, took the sum of $490. There were customers at the post office at the time of the offence. For this offending, the appellant was charged with one count of aggravated robbery.
The remainder of the offences occurred on 13 June 2015. The appellant was under the influence of methylamphetamine at the time.
In the early hours of that morning, the appellant and an accomplice, Mr Busuttil, broke into the premises of the Friendly Grocer supermarket at Highgate and took a number of items, including cigarettes and a cash register containing a sum of money. The appellant was charged with one count of theft (by receiving) for this offence.
Later that morning the appellant and Mr Busuttil entered the premises at 200 East Terrace, Adelaide. There are a number of businesses located at that address, including Neways International and Ouwens Casserly Real Estate. The appellant gained entry into the office of Neways International and a number of items were removed from that office.
At approximately 5:00 am the appellant and Mr Busuttil broke into the office of Ouwens Casserly Real Estate. They activated the silent alarm and police attended. On becoming aware of the police presence, the appellant ascended to the roof of the building.
STAR Group was called in. A helicopter search of the rooftop failed to locate the offenders. Two STAR Group officers gained access to the roof through a neighbouring building and commenced a search of the rooftop.
Around five hours later, at approximately 10:00 am, the appellant was located by the STAR Group officers inside an air-conditioning unit enclosure on the roof. He had a loaded sawn-off shotgun in his possession. The first STAR Group officer approached and looked down into the enclosure. The appellant turned towards the officer and pointed his shotgun at him. The officer requested that the appellant surrender and drop his firearm however the appellant did not comply with those demands. The officer discharged his firearm at the appellant and missed. The appellant disappeared back into the enclosure. When the appellant stood back up, he turned towards the second STAR Group officer (who was approximately 20 meters away) and pointed his shotgun at him. The officer shot and wounded the appellant to the left side of the chest, below the left armpit.
The appellant was charged with one count of being unlawfully on premises, one count of aggravated serious criminal trespass, two counts of aggravated threaten life, and one count of aggravated possession of a prescribed firearm.
The appellant’s vehicle was located in the carpark of the premises. Inside the vehicle police located a second sawn off shotgun. Property belonging to Ouwens Casserly Real Estate was located outside the building. The appellant was charged with a further offence of aggravated possession of a prescribed firearm and one count of theft.
On 1 July 2016, the appellant pleaded guilty in the Magistrates Court to both counts of possession of a prescribed firearm and one count of aggravated serious criminal trespass.
On 14 October 2016, the appellant pleaded guilty in the District Court to one count of theft (by receiving) from the supermarket at Highgate, one count of theft from Owens Casserly Real Estate and one count of being unlawfully on the premises of Neways International.
A trial commenced in November 2017 in respect of the two counts of aggravated robbery (one in respect of the Commodore vehicle and the other in respect of the post office) and one count of aggravated driving dangerously to escape police pursuit. The jury found the appellant guilty in respect of the charge of aggravated robbery of the post office, but were unable to reach verdicts on the other two counts. The appellant was found guilty on those two counts following a second trial by jury in October 2018.
In relation to the two counts of aggravated threating life, a mistrial was declared in February 2018 after it was revealed that a juror had conducted an internet search relating to defence counsel and discussed with other jurors certain information he discovered about counsel. The appellant was subsequently found guilty of those two counts following a trial by jury in December 2018.
Personal circumstances
A psychologist’s report was prepared by Mr Richard Balfour in April 2019. That report sets out the appellant’s personal circumstances.
The appellant was born in November 1973 and was 41 years of age at the time of the offending. He is now 46 years of age. He has a lengthy history of criminal offending, including offences of dishonesty, serious assault, drug offences, evading the police and a firearm offence. He has been sentenced to imprisonment on many occasions, spending approximately 18 months in juvenile detention and 24 years in adult prison. The appellant was subject to a suspended sentence bond at the time of the offending.
The appellant’s parents separated when he was aged three years. His father was an abuser of drugs and alcohol and had a history of violence. The appellant’s father was convicted of murder in the 1970’s and spent substantial time in a Queensland prison. His father died in 1994; they never enjoyed a close relationship. The appellant described his mother as a good parent who did not abuse drugs or alcohol and was not violent. From the age of 11 until 14 years, however, his mother was in a violent de facto relationship. He enjoys a close relationship with his sister but has not communicated with his brother since his most recent offending.
The appellant left school at age 14. Since leaving school he has completed year 9, as well as a Certificate I and II in Commercial Cookery and courses in computing, literacy and maths. The appellant has been mostly unemployed since leaving school which he attributes to a history of drug addiction and periods of incarceration. In 2012, the appellant began a tree-lopping business which was relatively successful until he was imprisoned in February 2013.
The appellant has had a number of relationships. His most recent relationship ended when he was imprisoned in February 2013. At the time of sentencing he was single. He has two adult children.
The appellant has complex mental health problems. He has been a user of illicit drugs and alcohol since his teenage years. However, it was submitted that there was a 10-year period where the appellant was not addicted to drugs. At the time of the subject offending the appellant had an addiction to methylamphetamine.
Injuries sustained by appellant
Evidence given by Dr CW Dobbins, a trauma surgeon, established that the appellant was admitted to the Royal Adelaide Hospital (“RAH”) on 13 June 2015 with a penetrating gunshot wound to the left side of his chest, below the left armpit. The shooting was potentially fatal. Bullet fragments entered his lung. He suffered a pneumothorax (deflated lung) that was treated with a chest drain. He suffered minor spinal injuries and a fractured rib and shoulder blade. No surgical intervention was required for those injuries. He was treated with pain relief. He was treated at the RAH as an inpatient for more than four weeks. The bullet fragments remain in the appellant’s body.
The appellant stated to Mr Balfour that he experiences continuing chronic pain under and towards the back of the left armpit. He also stated that he suffers functional disability.
Mr Balfour expressed the opinion that the appellant has developed Post‑Traumatic Stress Disorder (“PTSD”) as a consequence of being shot by police. Mr Balfour notes that the appellant reported having experienced traumatic nightmares about being shot that disturb his sleep, such that he has developed chronic insomnia.
Sentencing remarks
The Judge commenced his sentencing remarks by noting that the appellant’s antecedent history was “shocking”, and included a history of violent dangerous behaviour sometimes directed at or involving police and sometimes involving weapons. Against this, his Honour observed that there were no prior armed or aggravated robberies.
His Honour noted that it was agreed that the appellant was to be sentenced as a serious repeat offender pursuant to s 54 of the Sentencing Act 2017 (SA) and that the Director did not press for a disproportionate sentence.
The Judge had regard to the psychological report of Mr Balfour. His Honour accepted that the appellant’s relapse into offending was entirely drug related.
The Judge set out the approach he would take to sentencing. Relevantly, his Honour said:
I am mindful that in sentencing Mr Mann for a number of serious offences I shall need to keep in mind the principle of totality. I shall do this in two ways.
As I go through the various incidents and offences, I need to consider whether sentences should be cumulative or concurrent. Even where the offences are separate and distinct, and as a matter of law would normally call for cumulative sentences I shall consider whether concurrency is justified having regard to the totality principle.
Secondly, having done that process I shall look at the total of those sentences that I do accumulate. I shall consider whether that total is disproportionate to the overall offending bearing in mind that these three incidents occurred within a two-week period.
In sentencing for the aggravated robbery committed on 31 May 2015, his Honour noted that this was a “serious example of its kind” in that a shotgun was pressed against the face of the victim. His Honour considered an appropriate head sentence to be six years imprisonment.
In sentencing for the offence of aggravated drive dangerously to escape police pursuit, his Honour noted that this was a “blatant and serious offence” and “dangerous conduct”. His Honour noted that the appellant had put the lives of other motorists at risk. Against this, his Honour recognised that the offence did not involve outrageously high speeds as is often the case with police pursuits.
The Judge regarded this offence as subsequent to and separate from the robbery offence. His Honour imposed a sentence of 12 months imprisonment cumulative upon the aggravated robbery.
The Judge noted that the aggravated robbery of the post office on 3 June 2015 would have been a terrifying experience for the post office attendant and the customers. His Honour imposed a sentence of seven years imprisonment cumulative on the earlier sentences.
The Judge noted that at the time of the two offences of aggravated threaten life the appellant was on a methylamphetamine binge, had experienced a lack of sleep and his capacity for decision making was clearly compromised. His Honour noted that the appellant’s conduct throughout this incident was indicative of a man making extraordinarily bad and irrational decisions. Against this, his Honour took into account that police officers, including STAR Group officers, are entitled to look to the courts for protection from such conduct.
The Judge noted that the injuries sustained by the appellant were likely to afford some personal deterrence. However, as those injuries were a direct consequence of his own dangerous and criminal conduct, it did not mitigate his offending.
Whilst the two acts of pointing the shotgun were separate and deliberate actions, given the closeness of the offending his Honour imposed concurrent sentences of five years for each offence.
The first count of aggravated possess a prescribed firearm related to the shotgun that the appellant had with him on the roof and which he pointed at the police. The Judge imposed a sentence of three years imprisonment for that offence. After a 30% deduction for his guilty plea, that sentence was reduced to two years, one month and six days. His Honour considered that this was “very much part of the [same] criminal transaction” and therefore ordered that the sentence was to be served concurrently with the two aggravated threaten life sentences. That took the accumulated head sentence to 19 years imprisonment.
The Judge imposed a penalty of two and a half years imprisonment for the aggravated serious criminal trespass. After applying a 30% discount for the appellant’s guilty plea, that was reduced to one year and nine months to be served concurrently with the accumulated total head sentence of 19 years.
The Judge considered that the remaining three property offences “pale by comparison” to the other offences. For that reason his Honour imposed one penalty of six months imprisonment with a 20% reduction, to four months, three weeks and three days. In view of the very significant cumulative sentence, his Honour made those sentences entirely concurrent with the sentences for the other offending committed on that day.
However, the Judge did not take the same approach to the second aggravated possession of a prescribed firearm offence, being that found in the car parked nearby. His Honour accepted that part of the appellant’s motivation for being in possession of the firearms was fear of a man who had threatened to harm him. However, his Honour considered that the appellant’s possession of a second modified and loaded shotgun was quite separate to the other offences that occurred on 13 June 2015.
The Judge noted that this was a serious offence that attracted a maximum penalty of 15 years imprisonment. His Honour also noted that the appellant has a prior conviction for possessing a firearm without a licence for which he was sentenced to 15 months imprisonment. Given this, his Honour imposed a penalty of three years imprisonment cumulative upon the other sentences. With a 30% deduction for his guilty plea, that penalty was reduced to two years, one month and six days. Thus, the total notional head sentence imposed was 21 years, one month and six days.
The Judge then considered whether the total notional head sentence offended the principle of totality. His Honour was of the view that it did not, with one reservation. His Honour said:
Does that total head sentence offend the principle of totality? In other words, when sentences are cumulative to the extent I have, is the total disproportionate to the overall offending? I think not, but with one reservation: this was a spate of offending over a two week period.
For that reason, his Honour determined to make the second firearm offence partially concurrent, such that the total head sentence was 20 years imprisonment with a 16-year non-parole period.
Appellant’s submissions
The appellant submits that the sentence imposed is manifestly excessive. The first basis for this contention is that the sentence of six years for the aggravated robbery of Mr Coulthard on 31 May 2015 is manifestly excessive.
In support of that contention, counsel refers to R v Place where the Court of Criminal Appeal determined that the penalty appropriate for armed robbery committed against vulnerable targets was to be in the order of six to eight years imprisonment.[1]
[1] (2002) 81 SASR 395 at 429 (Doyle CJ, Prior, Lander and Martin JJ).
The appellant submits that this was not a case where the victims were a vulnerable target such as a young attendant in a delicatessen or taxi driver, rather, they were participants in drug dealing.
The appellant further contends that the Judge failed to appropriately recognise the extra-curial punishment the appellant received due to being shot by police. Counsel submits that in accordance with R v Barci[2] and R v Deatz,[3] in considering totality, the Judge should have taken into account as a mitigating circumstance the very serious injuries sustained by the appellant.
[2] (1994) 76 A Crim R 103.
[3] (2003) 139 A Crim R 398.
The appellant submits that the five-year sentences for each of the threatening life offences were quite high on their own, putting aside any adjustment in recognition of the injuries that the appellant received.
Counsel further contends that the Judge made a process error in formulating the sentence. The basis for that contention is twofold.
First, counsel contends that his Honour’s reduction of the head sentence from 21 years, one month and 16 days to 20 years by reference to the totality principle was not in fact based upon totality but by making the second firearm offence partially concurrent.
Counsel contends that the sentence imposed for the second firearm offence should have been made wholly concurrent because it was part and parcel of the same episode. This would result in an accumulated head sentence of 19 years. It is submitted that if the appellant had utilised both weapons in the aggravated threatening life offences, one would expect that the sentence would have been concurrent.
Secondly, the appellant contends that the Judge applied totality and concurrency in an erroneous way. That is, his Honour should have first considered the issue of concurrency and then, with the head sentence in mind, considered the issue of totality.
The appellant submits that if the Judge had made the second firearm offence wholly concurrent, the head sentence would have been 19 years and then there should have been a further reduction for totality. Counsel submitted that if the Court were to correct that error, it would be entitled to reduce the head sentence of 19 years by one to two years for totality.
Crown submissions
The Crown submits that the sentence imposed by the Judge, while lengthy, was not disproportionate to the overall offending committed by the appellant and took into account the matters that were raised in mitigation, as well as the appellant’s offender history.
The Crown submits that the Judge approached the sentencing task with totality in mind and considered whether sentences should be cumulative or concurrent and, even when they were separate and distinct as a matter of law, whether a concurrent sentence was justified having regard to totality.
In respect of the 31 May 2015 aggravated robbery, the Crown submits that vulnerable victims were targeted. The victims were, in effect, lured to the location and then robbed by the appellant. The fact that the victims are drug users does not excuse or mitigate the appellant’s actions. In some respects, the victims were more vulnerable in that they were less likely to report the incident to police as a result of their drug use.
The Crown submits that whilst the Judge did not refer to Place, his Honour determined that the offending was a serious example of its kind in that a sawn-off shotgun was used and pressed against the face of the victim.
The Crown submits that no submissions were made on behalf of the appellant about his injuries or any ongoing problems he suffers as a result of being shot by police. The Crown submits that in circumstances where the appellant has pointed a loaded firearm at two STAR Group officers, the injuries sustained should not mitigate further the sentence imposed for that offending. That is particularly so as his Honour recognised that being shot by police would have a deterrent effect.
In respect of the two firearm offences, the Crown contends that it was within the Judge’s discretion to impose a cumulative sentence. That is because the second firearm was not used in the trespass or to commit the offences against the police. It was a serious offence of itself.
The Crown contends that the penalty was extremely merciful given the maximum penalty of 15 years imprisonment for the firearms offences and the fact that the appellant had a previous conviction for possession of a similar firearm. It was well within the discretion of the Judge to make the sentence partially concurrent by applying the principle of totality.
Consideration
Principles which apply to sentence appeals
The circumstances in which an appellate court may interfere with a decision on sentence are set out in R v Jongewaard where Doyle CJ said:[4]
[40]The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[4] (2009) 266 LSJS 283; [2009] SASC 346.
This approach was further explained by Kirby J in Dinsdale v The Queen:[5]
[59]As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
[5] (2000) 202 CLR 321.
Aggravated robbery on 31 May 2015
I will first consider the appellant’s assertion that the penalty imposed for the 31 May 2015 armed robbery was manifestly excessive. The offence of armed robbery was committed against Mr Coulthard. The maximum penalty for that offence is life imprisonment.
In Place the defendant pleaded guilty to six offences of armed robbery in a period of three weeks. He robbed liquor stores, service stations and a retail store. On each occasion, the defendant obtained small amounts of money which was used to finance his drug addiction.
The sentencing Judge noted in Place that armed robbery in these circumstances normally attracts a head sentence of six to eight years and thus adopted a starting point of an aggregate sentence of 32 years imprisonment.[6] This sentence was reduced in recognition of the totality principle to 11 years and six months with a non-parole period of seven years and six months. The defendant appealed contending that the sentence and non-parole period were manifestly excessive. The defendant argued that, inter alia, his Honour erred in applying a “tariff” for armed robbery cases.
[6] (2002) 81 SASR 395 at [2].
The Court of Criminal Appeal (consisting of Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed) highlighted that armed robbery on banks, service stations, pharmacies, delicatessens and other retail stores where weapons or other objects are used to threaten victims are prevalent crimes committed against vulnerable persons, and crimes for which general deterrence and the protection of the public are of particular importance. Such crimes are frequently committed by persons addicted to and affected by drugs and alcohol, who commit the offences in order to obtain funds to meet their addiction.
The Court took the view that the standard of penalty appropriate for that type of offending is in the order of six to eight years imprisonment.[7] Their Honours said at [101]:
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
[7] See also R v Khim [2002] SASC 343; R v Randall-Smith (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103; R v Smoker (2016) 126 SASR 201.
The Court added that a well-planned and large scale armed robbery would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.
I consider that the Judge did not err in fixing a head sentence of six years imprisonment for the aggravated robbery on 31 May 2015. As the Judge observed, this offending was a serious example of its kind. It involved the use of a very dangerous weapon. It involved a significant level of violence in that the barrel of the sawn-off shotgun was pressed against the face of Mr Coulthard. This would have been a frightening experience for both Mr Coulthard and the female passenger of the vehicle.
Although the victims were not vulnerable in the broad sense contemplated in Place, I agree with the Crown’s submission that the fact that the victims are drug users does not excuse or mitigate the appellant’s actions.
In my view, this was serious offending and called for a substantial penalty and the appropriate penalty is in the range contemplated by Place. The head sentence of six years properly reflects the need for general and specific deterrence. In the circumstances, it was well within the discretion of the Judge to impose such a penalty.
Extra curial punishment
A sentencing judge is entitled to take into account as a relevant circumstance the injuries suffered by an offender as a consequence of the offending. The weight to be afforded to those injuries is a matter for the sentencing judge.[8]
[8] Beare v Police [2005] SASC 256 at [8] (Vanstone J). See also R v Mavropolous [2009] SASC 190.
Counsel for the appellant contended that the Judge erred in failing to give any weight to the “extra curial punishment” suffered by the appellant by reason of being shot by police on 13 June 2015. The decisions of R v Barci[9] and R v Daetz[10] were cited in support of this contention.
[9] (1994) 76 A Crim R 103.
[10] (2003) 139 A Crim R 398.
In Barci two offenders were sentenced to 15 years imprisonment with a non‑parole period of 10 years for armed robbery and other charges. One issue for the Victorian Court of Criminal Appeal (comprising Southwell, Hampel and Hansen JJ) was whether the sentencing judge made sufficient allowance for the serious injuries received by Barci as a result of being shot by police in the course of carrying out the armed robbery.
In sentencing submissions, counsel for Barci put a great deal of evidence before the Judge as to injuries received and the long-term consequences. The top of Barci’s shoulder was virtually blown away and there were injuries to his chest wall. An operation was performed to repair the chest and lung and what was left of the left humerus was removed. Some weeks after the shooting, Barci developed a “golden staph” infection and various efforts to control that infection were not successful. Many surgical procedures followed. He suffered almost constant pain in his shoulder and there was a gross restriction of movement of the shoulder joint. Barci developed chronic osteomyelitis of the humerus associated with the continuing staphylococcus infection.
The Court of Criminal Appeal observed that this was a very serious injury which had left a permanent and severe disability. The Court said:[11]
It is… not a complete answer to say that Barci brought the injuries upon himself. The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.
[11] R v Barci (1994) 76 A Crim R 103 at 111.
The Court was of the view that the sentencing judge gave insufficient weight to this factor and determined to reduce the sentence.
Daetz also concerned an appeal by two offenders who had been sentenced to six years imprisonment with a non-parole period of three years for a robbery committed in company and other offences committed separately. Each had been assaulted by associates of the victims, with Daetz receiving a fractured skull. On appeal, Daetz argued that the sentencing judge erred by declining to allow any mitigation arising from the serious assault on him.
In addition to evidence of the initial injury and recovery, a psychiatric report was admitted in sentencing submissions. The report stated that Daetz was not aware of any long-term consequences of the injury other than extensive scarring across the crown of his skull. The sentencing judge refused to allow any reduction in sentence in recognition of the injury.
The New South Wales Court of Criminal Appeal (consisting of James J, with Tobias JA and Hulme J agreeing) considered the authorities, both locally and interstate, on the question of whether an offender who has been injured in the course of committing the offence should have that circumstance taken into account, in his or her favour, when being sentenced for that offence. In allowing the appeal, their Honours said:
…while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
The Crown’s main contention is that there was no evidence before the Judge of any ongoing injury suffered by the appellant. Whilst I accept that there was limited evidence available, there was some evidence of the appellant’s ongoing injuries.
As outlined above, the evidence of Dr Dobbins established that the appellant sustained serious injury as a result of being shot by the police on 13 June 2015. In the opinion of Mr Balfour, the appellant now suffers from PTSD. The appellant also told Mr Balfour that he suffers ongoing chronic pain below the left armpit and functional disability. The physical symptoms reported by the appellant to Mr Balfour are not inconsistent with the description of his injuries contained in the evidence of Dr Dobbins.
With respect to the appellant’s injuries, the Judge said:
[The appellant] was fortunate not to have been fatally wounded.
The injury he did sustain was a direct consequence of his own dangerous and criminal conduct and does not, of course, mitigate his offending. However, the fact of the matter is that he did sustain a serious gunshot wound and this could reasonably be expected to afford some personal deterrence.
It seems from the Judge’s remarks that he took into account the appellant’s physical and psychological injuries to the extent that they were relevant to personal deterrence. What weight was given to that issue was a matter for the Judge. There was no error on the part of the Judge.
The firearm offences
As outlined above, the appellant plead guilty to two counts of aggravated possess a prescribed firearm. The first count related to the firearm in his possession on the roof of Ouwens Casserly and which he pointed at the two STAR Group officers. The second count related to the firearm located by police in the appellant’s vehicle parked nearby. The maximum penalty for aggravated possession of a prescribed firearm is 15 years imprisonment.
The Judge was of the view that the first firearm offence was very much part of the one criminal transaction, and his Honour determined to make the sentence concurrent with the aggravated serious criminal trespass and two sentences for aggravated threaten life. His Honour then imposed one penalty for the remainder of the property offences committed that day and ordered that that penalty be served concurrently. The total head sentence at this stage in sentencing was 19 years imprisonment.
In the Judge’s view, the second count of aggravated possess a prescribed firearm was quite separate from the other offences committed on that day. His Honour determined to make the sentence imposed cumulative on the other offending taking the total head sentence to 21 years, one month and six days.
The Judge considered that the overall sentence did not offend the principle of totality. However, given that the entirety of the offending occurred over a two‑week period, his Honour determined to reduce the sentence to 20 years imprisonment by making the second firearm offence partially concurrent.
Partial or entire concurrency
It is well established that in determining the sentences appropriate for individual offences, a sentencing judge may order that one or more individual sentence be served concurrently, either in full or in part.
The question of whether sentences should be made concurrent or cumulative was explained by Wells J in Attorney-General (SA) v Tichy:[12]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. 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.
[12] (1982) 30 SASR 84 at 92-93. See also R v W, PL [2017] SASCFC 119 at [40].
Even where two individual offences lack a connection such that they can be characterised as involving “one course of criminal conduct”, there may still be good reason to order that they be served entirely or partially concurrent. As Kourakis J (as he then was) explained in R v Copeland (No 2):[13]
[13] (2010) 108 SASR 398.
[102]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.
[103]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 of 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.)
[104]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.
[105]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.
[106]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.
(Footnotes omitted)
In the present circumstances, I firmly consider that the second firearm offence should be characterised as part of one multi-faceted course of criminal conduct. On 13 June 2013, the appellant arrived at 200 East Terrace with two firearms in his possession. The fact that he left one in the car and took one into the premises is largely an artificial distinction. The second firearm offence was part and parcel of the course of criminal conduct committed by the appellant at 200 East Street. If the appellant had taken both firearms onto the roof and utilised both firearms, as with the first firearm offence, both sentences would very probably have been made concurrent.
The Crown relies on R v Cullen to support a contention that the need to deter those who engage in criminal activities from possessing firearms suggests that courts should be slow to order any degree of concurrency for firearms offending.[14]
[14] [2015] SASCFC 44 at [29]-[32] (Gray J with Kourakis CJ and Stanley J agreeing). See also R v Rerich [2016] SASCFC 78.
In Cullen, the defendant came to the attention of police as a result of a murder committed by an associate. An investigation was undertaken into the supply of the firearm used in the murder which lead to the defendant becoming a person of interest to police. In addition to the firearms investigation, police commenced an undercover operation into the defendant following allegations that he was trafficking in controlled drugs.
The defendant was subsequently charged with and pleaded guilty to three firearm offences occurring between 1 January 2012 and 1 January 2013 and four trafficking offences occurring between 5 April 2013 and 6 June 2013.
The defendant was sentenced to four years imprisonment in respect of the drug trafficking offences and four years imprisonment in respect of the firearms offences. The Judge ordered that the sentences be served cumulatively.
The defendant appealed, contending that, inter alia, the Judge erred in failing to order concurrency.
The Court of Criminal Appeal, consisting of Gray J, with Kourakis CJ and Stanley J agreeing, held that the imposition of cumulative sentences was within the Judge’s discretion. That was because the trafficking and firearms offending represented “two clear and separate incursions into criminal conduct, months apart”. Gray J made the following observations:
[28] The principles with respect to the imposition of cumulative or concurrent sentences are well established. There is a broad discretion to order that sentences be served cumulatively or concurrently, however each case requires an assessment of the gravity of the overall offending in light of the total or final sentence. Cumulative sentences are likely to be imposed where there have been two or more separate incursions into criminal conduct.
[29]In Violi,[15] the Chief Justice addressed the question of whether to order that sentences for offences relating to drugs and firearms be served cumulatively or concurrently. The following observation has direct relevance to the offending the subject of these proceedings:[16]
Even though there is a connection between firearms and drug traffickers, there is very little reason for concurrency between the sentence imposed for the two kinds of offences. The choice to both engage in the drug trade and to do so with firearms is a deliberate one. Drug trading and manufacture can be engaged in without firearms, and firearms may be possessed by someone who is not a drug trafficker. The illegal possession of firearms by drug traffickers must be strongly deterred. For that reason courts should be slow to order any degree of concurrency...
[Emphasis added.]
(Footnotes in original)
[15] R v Violi [2015] SASCFC 2.
[16] R v Violi [2015] SASCFC 2 at [34].
In my view Cullen is distinguishable. For the reasons outlined above, it cannot be said that the second firearm offence was a clear and separate incursion into criminal conduct.
I would uphold this ground of appeal. I consider that the Judge erred in failing to order that the second count of aggravated possession of a prescribed firearm be served concurrently.
I would order that the sentence for the second firearm offence be served concurrently. That would result in a cumulative starting point of 19 years imprisonment.
Having arrived at a starting point of 19 years, it is necessary to determine if there should be some reduction on the ground of totality. For the reasons that follow, I think a reduction for totality is required.
Totality
The totality principle was explained by Nyland and Gray JJ in R v Richardson as follows:[17]
[17] [2010] SASC 88.
[24]The principle of totality has been expressed by Thomas[18] as follows:
[18] Thomas, Principles of Sentencing (1979, 2nd ed) at 56-57.
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.
[25]The principle so expressed has been approved by the High Court in Mill[19] and Postiglione, where McHugh J described the principle of totality in the following terms:[20]
[19] Mill v The Queen (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[20] Postiglionev The Queen (1997) 189 CLR 295 at 307-308.
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”
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. 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.
[Footnotes omitted]
Also in Postiglione, Kirby J described the principle of totality as “in the nature of checks”[21] to be applied after reaching a conclusion as to the appropriate sentence, having regard to the objective criminality and personal and other matters of mitigation. A sentencing judge must consider whether the sentence so arrived at needs further adjustment by reason of “parity” or “totality”.[22]
(Footnotes in original)
[21] Postiglionev The Queen (1997) 189 CLR 295 at 340.
[22] Postiglionev The Queen (1997) 189 CLR 295 at 340-341.
King CJ similarly stated in R v Creed that ultimately a judge must “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable sentence to impose.”[23]
[23] (1985) 37 SASR 566 at 568.
While the appellant undoubtedly committed a series of serious and in certain respects materially different offences over a period of some three weeks, I consider that the application of the totality principle as explained in Richardson and Creed indicated that the cumulative starting point of imprisonment for 19 years was excessive in all the circumstances. I would uphold the appeal and impose a head sentence of imprisonment for 17 years. As the appellant is a serious repeat offender I would fix the non-parole period at 13 years, seven months and six days as required by s 54(1)(b) of the Sentencing Act 2017 (SA).
Conclusion
I would allow the appeal.
I would order that the sentence for the second firearm offence be served concurrently with the sentences for the offences committed on 13 June 2015. I would impose a total head sentence of 17 years imprisonment. I would fix a non‑parole period of 13 years, seven months and six days. That sentence should be back-dated to 13 June 2015 when the appellant was taken into custody.
DAVID AJ: I would allow the appeal. I agree with the reasons of Parker J and the orders he proposes.
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