R v AMETOVIC

[2024] SASCA 153

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v AMETOVIC

[2024] SASCA 153

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle)

20 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

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

The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent for two offences of aggravated theft, two offences of basic theft, and one offence of aggravated robbery, committed in August 2023 while the respondent was subject to a partially suspended sentence bond.

In sentencing the respondent, the sentencing judge used a starting point of imprisonment for 3 years and 6 months for the offence of aggravated robbery.

Focusing upon this starting point, the Director seeks permission to appeal on the ground that the sentence imposed is manifestly inadequate. He contends that the starting point for the aggravated robbery offence represents a significant departure from the standard of 6 to 8 years imprisonment enunciated in R v Place; that the judge did not identify any basis for a significant departure from the standard; and that there was no such basis in the circumstances of this offending or offender.

The respondent accepts that the sentence imposed was manifestly inadequate.  However, he opposes permission to appeal on the basis that there is no justification for this Court’s intervention and, in particular, that this is not a ‘rare and exceptional’ case where intervention is justified.

Held (per the Court), granting permission to appeal against sentence, allowing the appeal, setting aside the sentence below and resentencing the respondent:

1.The sentence imposed below was manifestly inadequate as the starting point for the offence of aggravated robbery involved a significant departure from the standard in R v Place and such a departure was not justified in the circumstances of the offending;

2.Properly understood, the phrase ‘rare and exceptional’ is not a test or criterion to be applied or satisfied in a particular case, but rather a compendious reference to, or reflection of, the importance of restraint in exercising the Court’s jurisdiction to entertain Crown appeals against sentence;

3.In weighing considerations of double jeopardy against the public interest in appellate intervention, this is an appropriate case in which to grant the Director permission to appeal;

4.In resentencing the respondent, a starting point of 6 years is appropriate for the aggravated robbery offence, reduced to 4 years and 6 months for his guilty plea;

5.      Respondent resentenced accordingly.

Criminal Law Consolidation Act 1935 (SA) ss 134(1)(a), 134(1)(b), 137(1)(b); Sentencing Act 2017 (SA) s 26, referred to.
Barton v The Queen (1980) 147 CLR 75; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634; Everett v The Queen (1994) 181 CLR 295; Green v The Queen (2011) 244 CLR 462; Griffiths v The Queen (1977) 137 CLR 293; House v The King (1936) 55 CLR 499; Malvaso v The Queen (1989) 168 CLR 227; Maxwell v The Queen (1996) 184 CLR 501; Munda v Western Australia (2013) 249 CLR 600; Police (SA) v Cadd (1997) 69 SASR 150; R v Apostilides (1984) 154 CLR 563; R v Berry [2024] SASCA 116; R v Brant [2018] SASCFC 72; R v Butler (a pseudonym) (2022) 303 A Crim R 296; R v Buttigieg (2020) 352 FLR 170; R v Carroll (2010) 77 NSWLR 45; R v Clarke (1996) 2 VR 520; R v Gannon (2012) 113 SASR 1; R v Harkin (2011) 109 SASR 334; R v Harris [2023] SASCA 129; R v Henderson (2023) 142 SASR 507; R v Holder (1983) 3 NSWLR 245; R v Jensen-Coulson [2023] SASCA 76; R v JW (2010) 77 NSWLR 7; R v Kelly [2023] SASCA 22; R v Mangelsdorf (1995) 66 SASR 60; R v Marrone [2024] SASCA 99; R v Nemer (2003) 87 SASR 168; R v Newton (2002) 128 A Crim R 185; R v Osenkowski (1982) 30 SASR 212; R v Place (2002) 81 SASR 395; R v Pokoina [2024] SASCA 132; R v R, AW (2012) 113 SASR 179; R v Schulz [2023] QCA 150; R v Singh [2024] SASCA 81; R v Toft [2024] SASCA 13; R v Wilton (1981) 28 SASR 362; R v Yaroslavceff [2022] SASCA 123; Soun v The Queen [2021] SASCA 119; Wong v The Queen (2001) 207 CLR 584, considered.

R v AMETOVIC
[2024] SASCA 153

Court of Appeal – Criminal:    S Doyle JA, Bleby JA and B Doyle AJA

1. THE COURT:   The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent.

2. The respondent was sentenced for several offences committed while he was subject to a partially suspended sentence bond.  In sentencing the respondent, the sentencing judge used a starting point of imprisonment for 3 years and 6 months for an offence of aggravated robbery committed on a service station at night.

3. Focusing upon this starting point, the Director seeks permission to appeal on the ground that the sentence imposed is manifestly inadequate.  He contends that the starting point for the aggravated robbery offence represents a significant departure from the standard of 6 to 8 years imprisonment enunciated in R v Place;[1] that the judge did not identify any basis for a significant departure from the standard; and that there was no such basis in the circumstances of this offending or offender.

   [1]     R v Place (2002) 81 SASR 395.

4. The principles governing permission to appeal in a Crown appeal are addressed later in these reasons.  The Director contends that this Court’s intervention is warranted in the present case in order to maintain sentencing standards, and because the sentence imposed was so low, and such a significant and unexplained departure from the standard in R v Place, that intervention is required to maintain public confidence in the administration of justice.

5. The respondent accepts that the sentence imposed was manifestly inadequate.  However, he opposes permission to appeal on the basis that there is no justification for this Court’s intervention and, in particular, that this is not a ‘rare and exceptional’ case where intervention is justified.

6. For the reasons which follow, this is an appropriate case in which to grant the Director permission to appeal.  We grant permission, allow the appeal and resentence the respondent on the basis set out at the conclusion of these reasons.

   The offending and sentence imposed

7. The respondent pleaded guilty to the following offences:[2]

   ·Count 1 – aggravated theft (in company), committed at Hillbank on 9 August 2023, with a maximum penalty of imprisonment for 15 years;[3]

   ·Count 2 – aggravated theft (in company), committed at Salisbury on 13 August 2023, with a maximum penalty of imprisonment for 15 years;[4]

   ·Count 3 – basic theft, committed at Salisbury on 17 August 2023, with a maximum penalty of imprisonment for 10 years;[5]

   ·Count 4 – basic theft, committed at Munno Parra West on 27 August 2023, with a maximum penalty of imprisonment for 10 years;[6] and

   ·Count 5 – aggravated robbery (armed), committed at Salisbury on 29 August 2023, with a maximum penalty of imprisonment for life.[7]

   [2]     Whilst charged on separate informations, it is convenient to refer to the offences as Counts 1 to 5.

   [3]     Criminal Law Consolidation Act 1934 (SA) (CLCA), s 134(1)(b).

   [4] CLCA, s 134(1)(b).

   [5] CLCA, s 134(1)(a).

   [6] CLCA, s 134(1)(a).

   [7] CLCA, s 137(1)(b).

8. At the time of the commission of the offences, the respondent was subject to a partially suspended sentence of imprisonment which had been imposed by a Magistrate on 30 June 2023.  The portion of the sentence which had been suspended was a period of 4 months, 1 week and 5 days.

9. The partially suspended sentence had been imposed for nine aggravated thefts and seven basic thefts committed between October 2021 and April 2023.  The offences were committed at liquor stores, supermarkets and shopping centres, and included two petrol ‘drive offs.’

10. The sentencing judge identified the following starting points, guilty plea discounts and sentences for the respondent’s five offences:

Starting point	Discount	Sentence
Count 1: aggravated theft	6 months	30%	4 months, 6 days
Count 2: aggravated theft	6 months	30%	4 months, 6 days
Count 3: basic theft	6 months	30%	4 months, 6 days
Count 4: basic theft	9 months	30%	6 months, 9 days
Count 5: aggravated robbery	3 years, 6 months	25%	2 years, 7 months, 16 days

1. The judge allowed the application to enforce the respondent’s partially suspended sentence bond and revoked the bond, calling into effect the suspended period of 4 months, 1 week and 5 days imprisonment.

2. His Honour utilised s 26 of the Sentencing Act 2017 (SA) to impose a single sentence of 3 years and 6 months imprisonment for the offences committed between 9 and 29 August 2023, and ordered that it be served cumulatively on the period of 4 months, 1 week and 5 days imprisonment.

3. This resulted in a total effective head sentence of imprisonment for 3 years, 10 months, 1 week and 5 days.  His Honour fixed a non-parole period of 2 years.  The sentence was backdated to commence from 6 September 2023.

   Circumstances of the offending

4. Counts 1 to 4 involved basic and aggravated thefts committed by the respondent on service stations and a supermarket over a three week period.  The circumstances of these offences were as follows.

5. On 9 August 2023, at about 7.18 pm, the respondent and another male were captured on CCTV footage attending a service station in Hillbank.  The respondent entered the store and walked around for six minutes.  He took multiple items from various aisles, and then ran back to his car without paying (Count 1).  The goods were valued at $198.  The circumstance of aggravation was that the offence was committed in company.

6. On 13 August 2023, at about 11.35 am, the respondent went to a supermarket in Salisbury.  Two women were shopping with a trolley full of grocery items.  The respondent entered and talked with one of the women and, when she briefly abandoned the trolley, took it.  He collected another bag of produce, put that in the trolley and then left the store without paying (Count 2).  The items were valued at about $500.  The circumstance of aggravation was again that the offence was committed in company.

7. On 17 August 2023, at about 7.16 pm, the respondent entered a service station in Salisbury.  He engaged in conversation with a staff member holding a carton of cigarettes.  He snatched the carton and fled the store without paying (Count 3).  The cigarettes were valued at $260.

8. On 27 August 2023, the respondent entered a service station in Munno Para West and took a carton of cigarettes worth $304 without paying (Count 4).

9. It was against this background of offending that the respondent, on 29 August 2023, committed the aggravated robbery the subject of Count 5. At about 10.55 pm, the respondent, in company with another male, entered a service station in Salisbury.  He approached the front counter and asked the female employee for a carton of cigarettes, and to look at a Nokia mobile phone.  As the victim showed him the carton of cigarettes, the respondent attempted to remove the cigarettes from behind the counter.  He then pulled out a knife and said to the victim ‘give me the smokes or I’ll stab you’.  The victim said ‘no’ and told him to leave the store.  The respondent then attempted to climb over the front counter, but was unable to get his leg up and over the counter.  At this stage, the victim became frightened and handed the respondent the carton of cigarettes and the mobile phone.  Both the respondent and the second male then left the store, with goods worth about $439.

10. In describing this offending, the sentencing judge noted that the respondent claimed to have blacked out as a result of being drug affected, that he was not thinking clearly, and that he had no rational explanation for his actions.  The respondent claimed that this offending occurred because he had learned of his girlfriend’s infidelity. 

11. The judge found that the respondent acted with a degree of ‘purpose and methodical thought’ on this occasion, which was apparent from the CCTV footage.  His Honour accepted that the respondent was under the influence of illicit substances, and that he was driven by a desire to fund his drug habit.  It was, however, serious offending and caused significant fear in his victim, who was simply trying to do her job at the service station.

12. As mentioned earlier, at the time of the commission of the above offending, the respondent was subject to a partially suspended sentence which had been imposed by a magistrate in June 2023.  That sentence had been imposed for multiple counts of theft and aggravated theft.

    Personal circumstances

13. The respondent was 23 years of age at the time of the offending, and 24 years of age by the time he was sentenced. 

14. He was born and raised in Adelaide, but has more recently lived in Kadina.  He has two older half siblings and three younger biological siblings.  His parents separated when he was 15 years of age.  At around the same time, his father was imprisoned.  His mother used drugs to help her cope, and this led to her abandoning the care of her six children.  They all moved in with an aunt of the respondent, although the respondent and two of his siblings were soon forced to move out as there was not enough room for them all.  The respondent has kept in contact with this aunt, and maintains some sense of responsibility for the wellbeing of his siblings.  On occasions he had stolen food to help support them.

15. The respondent was homeless between the ages of about 15 and 18, including at times sleeping rough on Hindley Street.  He received limited education, having attended school from kindergarten to year 10.  He was expelled from his high school, and his schooling was interrupted by periods spent in juvenile detention.

16. Since the age of 18, the respondent’s accommodation has continued to be unstable.  He spent periods living with his aunt, and also with his father and an uncle.  The respondent speaks highly of his father, and the sentencing judge considered it understandable that his father’s incarceration, and absence from the respondent’s life, had had an adverse impact upon him.  The respondent had maintained some contact with his mother.

17. The respondent’s employment had been sporadic, with significant periods of unemployment, in part because he had been in and out of prison.  He had at times worked at a mechanic workshop, on a chicken farm and as a furniture removalist.  He aspires, at some point in the future, to finish year 12 and obtain some qualification as a mechanic.

18. The respondent has only had one intimate relationship, which lasted about four years.  The respondent connected his offending to the difficulty he had in coping with the breakdown in this relationship.  His difficulty had impacted his mental health and he had resorted to using drugs.

19. The respondent also had a problem with alcohol.  He started drinking at around 17 years of age, and acknowledged stealing to support his drinking.  Drugs had also been a problem for him.  He began taking methylamphetamine when he was about 15 years of age.  His use had fluctuated, and had been exacerbated from time to time by particular mental triggers.  The respondent had a tendency to resort to alcohol and illicit drugs when he was struggling, and had not ever had any treatment for his substance abuse. 

20. The judge was provided with a report from a psychologist, Ms Heinrich.  She described the respondent’s tendency to abuse alcohol and drugs as involving a long-standing polysubstance use disorder.  The judge regarded this background of substance abuse as explaining, but not mitigating, the respondent’s offending.

21. The respondent had a criminal history which included aggravated robbery and numerous dishonesty offences, commencing from 2015 when he was 15 years of age.

    Sentencing remarks

22. After describing the respondent’s offending and personal circumstances in terms similar to the above, the sentencing judge turned to the sentence to be imposed.

23. His Honour commenced by observing that the paramount consideration was protection of the safety of the community.  In this context, it was significant that the respondent not only had a history of offending, but also acknowledged that he had resorted to stealing to support his family.  In the circumstances, both general and personal deterrence were important considerations.  Previous periods of imprisonment, beginning when he was a youth, had not deterred him.  The judge considered that if he continued to use alcohol and drugs, it was likely that the respondent would continue with similar offending.

24. In terms of prospects of rehabilitation, the judge emphasised that the respondent was still a young man, and accepted not only his expressions of remorse and regret, but also that he was making efforts to abstain from alcohol and drugs.  Steps had been taken to enable the respondent to access some drug counselling, and to have the support of a psychologist.  This had the potential to provide a pathway to rehabilitation that had not previously been available to the respondent.

25. The sentencing judge noted that the respondent had been afforded leniency in the past, including as reflected by the partially suspended sentence bond which he had breached through the present offending.  The judge regarded the present offending as constituting an escalation in his offending, particularly the aggravated robbery.  The judge said that he was ‘guardedly optimistic about [the respondent’s] prospects of rehabilitation, given [his] youth, but there is much work for [the respondent] to do’.

26. In pronouncing sentence, the judge commenced by revoking the bond and ordering that the respondent serve the remaining 4 months, 1 week and 5 days of his partially suspended sentence in custody.  The judge then identified the starting points and discounts for the first four counts, as set out earlier in these reasons.  Turning to Count 5, he said merely that for the aggravated robbery ‘I would have adopted a starting point of three years and six months, reduced by 25% to two years, seven months and 16 days’.

27. The sentencing judge then utilised s 26 of the Sentencing Act to impose a single sentence.  He explained that while the offending involved separate incursions into criminality, some concurrency should nevertheless be allowed ‘given the short period during which the offending occurred and its relationship to [the respondent’s] drug and alcohol problems’.

28. With a view to reflecting the criminality inherent in all of the offending, the judge imposed a single sentence of 3 years and 6 months imprisonment.  That was to be served cumulatively on his sentence of 4 months, 1 week and 5 days.

29. In fixing a non-parole period, the judge said that he had regard to all of the respondent’s personal circumstances, which he considered allowed for some sympathy.  He noted the respondent’s intention to move to Wallaroo to escape some of his acquaintances, and that he now had some ability to access assistance in dealing with alcohol and drugs.  In those circumstances, the judge considered that both the respondent and the community would benefit from a longer than usual period on parole.  He fixed a non-parole period of 2 years.

1. The sentence was backdated to commence on 6 September 2023.

   The sentencing standard in R v Place

2. In R v Place,[8] the Court of Criminal Appeal reiterated the sentencing standard of imprisonment for 6 to 8 years for armed robberies committed on premises such as a service station, pharmacy or retail store and involving the use of a weapon to threaten the immediate victim.  At the same time, the Court also emphasised the flexibility of the guidance provided by sentencing standards.

   [8]     R v Place (2002) 81 SASR 395.

3. In their joint reasons, Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing) described the standard in the following terms:[9]

   This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance.  This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction.  For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. …

   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.

   [9]     R v Place (2002) 81 SASR 395 at [100]-[101] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

4. By way of elaboration, their Honours referred to the Court’s earlier decision in R v Newton,[10] where the defendant heroin addict, desperate for money, used a syringe while physically accosting and demanding money from a woman who had just made a withdrawal from an ATM.  Their Honours said that the victim in that case was no less vulnerable than an attendant in a service station or pharmacy, and had been subjected to a threat with a dangerous weapon.  The equivalent need for general deterrence, and to protect the public, meant that that case could not be regarded as intrinsically less serious than the type of offending described in broad terms in the passage extracted above from the joint reasons.[11]

   [10]   R v Newton (2002) 128 a Crim R 185.

   [11]   R v Place (2002) 81 SASR 395 at [106] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

5. On the other hand, their Honours disagreed with the suggestion in R v Newton that the type of offending to which the standard of 6 to 8 years imprisonment was appropriate would include the “large-scale well planned hold-up” of a bank or other business.  Their Honours explained that such a case would generally involve circumstances more serious than those intended to be encompassed within the standard.[12]

   [12]   R v Place (2002) 81 SASR 395 at [108] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

6. As mentioned, the joint reasons in R v Place also emphasised the flexibility in the application of sentencing standards.[13]  In deprecating any reference to a ‘tariff’, their Honours said that sentencing standards were intended only to provide guidance as to the appropriate sentence in the ordinary type of case to which they apply, and as to the underlying rationale or reasons for the standard.  However, in arriving at an appropriate sentence in an individual case, whilst doing so through the prism of the guidance provided by the standard, and the reasons for it, the sentencing court must assess the particular circumstances of the offending and the offender in order to determine an appropriate sentence.  Sentencing standards are not to be applied in a mechanical fashion, or to otherwise inappropriately fetter the court’s sentencing discretion.  They merely indicate an approximate standard to be applied, having made due allowance for the circumstances of the particular case.  Whilst departure from the numerical guidance provided by a standard does not require ‘exceptional circumstances’, it may require a proper basis and explanation.

   [13]   R v Place (2002) 81 SASR 395 at [22]-[33] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

7. Their Honours referred with approval to the similar description of the guidance provided by sentence standards in R v Manglesdorf:[14]

   It has often been said, and needs no repeating, that it is for the sentencing judge to take into account all material matters in deciding upon the appropriate sentence to be imposed.  Scope must be allowed for the sentencing judge’s assessment of those matters, and for the understanding of the offence and of the offender which the sentencing judge obtains.  The latter, in particular, may be influenced by aspects of the sentencing process in respect of which the sentencing judge is better placed than is a court of criminal appeal to make an appropriate assessment of what should be done.  As King CJ said in Osenkowski [(1982) 30 SASR 212] (at 212-213):

   “It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”

   But in the end the standards which this Court determines must be given appropriate weight.  Departure from them must be justified by some aspect of the particular case.  The standards are not, and are not intended to be, precise.  But they do provide clear guidance.

   [14]   R v Mangelsdorf (1995) 66 SASR 60 at 66 (Doyle CJ, Prior and Williams JJ agreeing).

8. On the facts in R v Place,[15] the defendant had begun to use amphetamines heavily following the breakdown of his marriage in 1998.  In order to finance this habit, he committed six armed robberies in a period of three weeks in July 2000.  On each occasion he used an imitation firearm to threaten the attendant of a service station, liquor store or other small retail store.  The defendant did not resort to physical violence, and in most cases did not make any attempt to disguise himself other than by wearing sunglasses.  The robberies generally involved the theft of cash in amounts of approximately $500, although one involved $1,755.  The defendant was 40 years of age at the time of his offending, and had only a limited criminal history.  Whilst there were some unfortunate aspects to his family life, his background was generally unremarkable; it did not include anything which could ‘reasonably excite the sympathy of a sentencing court’. 

   [15]   R v Place (2002) 81 SASR 395 at [91]-[95], [109]-[110] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

9. In resentencing the defendant,[16] their Honours considered that a sentence of 5 years and 6 months imprisonment would be appropriate for each offence of armed robbery.  However, in deciding to impose a single sentence, and making significant allowance for the relatively short period over which the offending occurred, and the defendant’s early pleas of guilty, cooperation and contrition, their Honours ultimately concluded that an overall sentence of 12 years would be appropriate.  They further reduced this by 6 months on account of time served in custody and on home detention bail, and fixed a non-parole period of 6 years.

   [16]   R v Place (2002) 81 SASR 395 at [111]-[116] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

10. The relevance and flexibility of the standard referred to in R v Place has been reinforced in a number of subsequent decisions, including the relatively recent decisions of this Court in Soun v The Queen,[17] R v Jensen-Coulson[18] and R v Kelly.[19]  It is not necessary to set out the circumstances of those cases, although they provide useful and informative applications of the standard.

    [17]   Soun v The Queen [2021] SASCA 119 at [16] (Livesey P and David JA).

    [18]   R v Jensen-Coulson [2023] SASCA 76 at [58]-[63] (Bleby and David JJA).

    [19]   R v Kelly [2023] SASCA 22 at [51]-[55] (Lovell JA), [93] (Bleby and David JJA).

11. For completeness, it is relevant to observe that in both R v Gannon[20] and R v Brant,[21] the Court emphasised the importance of maintaining a substantial difference between the sentences for armed robberies to which the standard in R v Place applies, and the sentences for basic offences of robbery.  For robberies from retail premises or individuals, either with or without some violence, but not involving a weapon,  a starting point of about 4 years imprisonment would generally be appropriate.

    [20]   R v Gannon (2012) 113 SASR 1 at [33] (Kourakis J).

    [21]   R v Brant [2018] SASCFC 72 at [29]-[30] (Kourakis CJ, Kelly and Blue JJ agreeing), noting the differing maximum penalties applicable to the offences; namely 15 years imprisonment for simple robbery and robbery with violence, and life imprisonment for armed robbery and robbery in company.

    Manifest inadequacy

12. During the course of sentencing submissions in the present case, both the prosecutor and defence counsel referred the sentencing judge to the standard in R v Place.  Both counsel contended or accepted that the circumstances of the respondent’s aggravated robbery (Count 5) were such that the standard applied.  It was not suggested that there was any basis for a significant departure from the numerical guidance provided by that standard.

13. In our view, there was no proper basis for a significant departure.

14. It may be accepted that the offending was not at all sophisticated.  Whilst it occurred against a significant history of thefts, it did not involve any significant planning or premeditation.  The respondent did not take any steps to disguise himself or otherwise avoid detection.  The offending occurred in circumstances where the respondent was not only drug affected, but motivated by a need to support that habit that could be linked to personal difficulty.  The value of the items taken was modest.

15. Whilst all of this is true, it does not provide a basis for any significant departure from the circumstances contemplated by the standard in R v Place.  To the contrary, the circumstances of the present case resonate closely with the type of case the Court had in mind when describing the cases to which the standard applied most directly.  Indeed, it is significant here that the respondent not only brandished a knife, and made an express threat to use it, but also attempted to climb the counter towards the attendant whom he had threatened.  The fact that the offending occurred late at night would only have added to the sense of vulnerability and fear on the part of the attendant.

16. It is also significant that the respondent’s offending occurred against a lengthy and significant history of offending, including a large number of basic and aggravated thefts; and it occurred while the respondent was subject to a partially suspended sentence bond.

17. It is to be acknowledged that the respondent had experienced a difficult upbringing, with limited education and opportunities.  He is still young, and the sentencing judge was entitled to be ‘guardedly optimistic’ about the respondent’s prospects of rehabilitation.

18. However these limited favourable considerations were not reasonably capable of justifying a significant departure from the standard in R v Place.  The guidance provided by that standard required a significantly higher starting point than the 3 years and 6 months imprisonment adopted by the judge for the aggravated robbery offence committed by the respondent.

19. In considering a submission of manifest inadequacy, it is important to consider the impugned sentence in the context of the sentence as a whole, or the sentence ultimately imposed.  In the present case, the aggravated robbery was the most serious of the respondent’s offences, and contributed significantly to the overall sentence.  His Honour’s treatment of the other offences was, if anything, lenient and did nothing to undermine the contention of manifest inadequacy stemming from the sentence indicated for the aggravated robbery offence.

20. We are satisfied that the sentence imposed was manifestly inadequate.

    Permission to appeal

21. It is trite that the existence of error is not a sufficient justification for a grant of permission to appeal on a Crown appeal against sentence.  Something more is required to justify this Court’s intervention.

22. The reason ‘something more’ is required is the concern to avoid exposing an offender to the hardship of double jeopardy which, in this context, is a reference to the hardship associated with an offender being placed in jeopardy for a second time, or being ‘twice vexed’, by the prosecuting authority and sentencing process.[22]  It is a reference to the offender being exposed to the possibility of a more severe sentence upon being resentenced.

    [22]   Everett v The Queen (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson and Gaudron JJ); see also R v Kelly [2023] SASCA 22 at [32]-[34], [38]-[40] (Lovell JA).

23. In order to justify this Court’s intervention, there must be a sound reason for it to do so, despite the hardship of double jeopardy.  This is often expressed as a requirement that there be strong reasons of public policy for, or a public interest in, this Court intervening despite the hardship associated with double jeopardy.[23]

    [23]   R v Buttigieg (2020) 352 FLR 170 at [39] (Lovell J, Kourakis CJ and Nicholson JJ agreeing); R v Kelly [2023] SASCA 22 at [45]-[47] (Lovell JA), [95]-[97] (Bleby and David JJA).

24. The circumstances in which there may be a sufficient public interest to warrant this Court’s intervention have been addressed in the reasons of King CJ in R v Osenkowski[24] and Doyle CJ in  R v Nemer,[25] and a number of subsequent decisions of this Court.  They were recently summarised, in the context of a prosecution appeal complaining of manifest inadequacy in the sentence imposed, in R v Singh:[26]

    The principles governing an application for permission to appeal against sentence by the Director are well established.  Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[27]  

    If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[28]

    [24]   R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).

    [25]   R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).

    [26]   R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA); applied in several subsequent decisions of this Court, including R v Marrone [2024] SASCA 99 at [35] (Lovell, Doyle and Bleby JJA); R v Berry [2024] SASCA 116 at [10] (S Doyle and Bleby JJA and Hall AJA); R v Pokoina [2024] SASCA 132 at [46] (Lovell and S Doyle JJA and Stein AJA).

    [27]   R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

    [28]   R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.

25. In determining whether there should be a grant of permission, the Court must weigh the public interest which may favour intervention, against the extent of the hardship to be faced by the particular respondent if exposed to the prospect of a more severe sentence.[29]  Without attempting to be exhaustive, that hardship may weigh particularly heavily, for example, in cases: where an offender who is serving their sentence in the community faces the prospect of an immediate custodial sentence;[30] where an offender’s release from imprisonment, or eligibility for parole, is imminent; where an offender has made significant progress towards rehabilitation and resentencing might jeopardise that progress;[31] where there are other reasons grounded in the offender’s personal circumstances which make them an inappropriate vehicle for achieving the public interest sought to be achieved through the proposed appeal; where the sentence contended for on appeal would involve a departure from the approach contended for by the prosecution during the course of sentencing submissions;[32] where there has been significant delay which was outside of the control of the offender; or where allowing the appeal and resentencing in the manner contended for might introduce unjustifiable disparity between the sentence of the offender and someone else sentenced for the same, or related, offending.[33]

    [29]   R v Butler (a pseudonym) (2022) 303 A Crim R 296 at [72]-[73] (David JA and Mazza AJA); R v Kelly [2023] SASCA 22 at [48]-[49], [79] (Lovell JA), [99]-[101] (Bleby and David JJA).

    [30]   Everett v The Queen (1994) 181 CLR 295 at 305 (Brennan, Deane, Dawson and Gaudron JJ), 307 (McHugh J).

    [31]   Everett v The Queen (1994) 181 CLR 295 at 305 (Brennan, Deane, Dawson and Gaudron JJ); Munda v Western Australia (2013) 249 CLR 600 at [72] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ)); R v R, AW (2012) 113 SASR 179 at [76]-[89] (Peek J, Nyland J agreeing).

    [32]   Everett v The Queen (1994) 181 CLR 295 at 300-303 (Brennan, Deane, Dawson and Gaudron JJ); Malvaso v The Queen (1989) 168 CLR 227 at [233] (Mason CJ, Brennan and Gaudron JJ), [240] (Deane and McHugh JJ); R v Wilton (1981) 28 SASR 362 at 367-368 (King CJ, Mitchell and Williams JJ agreeing).

    [33]   Green v The Queen (2011) 244 CLR 462 at [2], [40] (French CJ, Crennan and Kiefel JJ).

    An apparently clear case for intervention

26. At first blush, the present case is a relatively clear one for intervention by this Court.  For the reasons explained, the sentence imposed was not only manifestly inadequate, but clearly so.  The standard in R v Place is clear and well established, and the present case fell squarely within the type of case contemplated by that standard.  No basis was given for a significant departure from the numerical guidance provided by that standard, and none existed.  On this basis, it can be said that the intervention of this Court would be justified, indeed required, to maintain sentencing standards, and to maintain public confidence in the administration of justice.  Insofar as the rationale for the standard in R v Place lies in ensuring adequate protection of the public, and an adequate level of deterrence in respect of a relatively common and concerning type of serious crime, intervention would be justified in order to reinforce the importance of these sentencing objectives and principles.

27. It was submitted, somewhat paradoxically, that because the standard in R v Place is clear, and has been confirmed and applied in several subsequent decisions, no further guidance from this Court is required.  It is a paradoxical submission to make because it involves embracing the obviousness of the error in the sentence imposed in order to weaken the basis for this Court’s intervention.

1. The answer to the submission, however, lies in an appreciation of the importance of this Court’s role in ensuring consistency and equality in the application of sentencing standards and principles. 

2. The critical and fundamental importance of consistency and equality in the application of sentencing principles has often been emphasised.  As French CJ, Crennan and Kiefel JJ observed in Green v The Queen:[34]

   ‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’.  It is an aspect of the rule of law.  It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order’.  It has been called ‘the starting point of all other liberties’. … It requires, so far as the law permits, that like cases be treated alike.  Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. …

   Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ …

   General concepts of ‘systemic fairness’ and ‘reasonable consistency’ in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen.  They apply to persons charged with similar offences arising out of unrelated events.  The consistency they require is ‘consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence’.  That kind of general consistency is maintained by the decisions of intermediate courts of appeal. …

   [34]   Green v The Queen (2011) 244 CLR 462 at [28]-[29] (French CJ, Crennan and Kiefel JJ) (omitting citations).

3. Whilst these observations were made in the context of an explication of the parity principle, they were expressed as applying to sentencing principles more generally.  This public interest in consistency and equality also informs this Court’s discretion to intervene in Crown appeals against sentence. 

4. As Doyle CJ observed in Police v Cadd:[35]

   The function of the Court of Criminal Appeal of a State is to supervise the exercise of sentencing powers by magistrates, by the District Court or its equivalent and by judges of the Supreme Court.  A Court of Criminal Appeal of a State is not concerned only with errors of principle, but also with maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences.  The interests of the administration of justice include an interest in consistency of approach, and an interest in consideration of the public interest in the courts imposing adequate punishment for offences.

   [35]   Police (SA) v Cadd (1997) 69 SASR 150 at 159 (Doyle CJ).

5. His Honour added that support for this articulation of the importance of consistency and uniformity in sentencing standards could be found in the passage from the reasons of McHugh J in Everett v The Queen[36] set out in full later in these reasons.  Support may also be found in the following observations of Gleeson CJ in Wong v The Queen:[37]

   The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case.  Like cases should be treated in like manner.  The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances.  It should be systematically fair, and that involves, amongst other things, reasonable consistency.

   [36]   Everett v The Queen (1994) 181 CLR 295 at 306 (McHugh J).

   [37]   Wong v The Queen (2001) 207 CLR 584 at [6] (Gleeson CJ), cited in Munda v Western Australia (2013) 249 CLR 600 at [93] (Bell J); see also R v Henderson (2023) 142 SASR 507 at [44] (Livesey P and David JA).

6. Whilst this Court cannot, and should not, intervene in every case in which there is a departure from a sentencing standard, to allow a clear departure from that standard to go uncorrected risks a public perception of inconsistency and inequality in the application of the law.  It risks a perception that sentencing outcomes depend, to an unacceptable extent, upon the identity of the sentencing judge.  Put another way, this Court exercising its supervisory role in the case of a clear departure from an established standard tends to reinforce public confidence in the consistency and equality of sentencing.

7. None of the above should be understood as detracting in any way from the flexibility inherent in not only the application of sentencing standards, but also sentencing principles more generally.  As King CJ said in R v Osenkowski, it is important that Crown appeals ‘not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case’.[38]  However, as in R v Osenkowski itself, the present case did not involve a carefully explained application of leniency on account of features of the respondent’s offending or personal circumstances that reasonably excited the sentencing court’s sympathies.  It involved a significant unexplained departure from an established sentencing standard.  In such cases, it is important that the Court of Appeal ‘vindicate and uphold the level of penalties which it has established as appropriate to this type of crime’.[39]

   [38]   R v Osenkowski (1982) 30 SASR 212 at 212 (King CJ).

   [39]   R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ).

8. Further, this is not a case where exposing the respondent to the double jeopardy of a Crown appeal would involve any significant or particular hardship over and above that which is unfortunately associated with any Crown appeal against sentence.  The respondent is already in custody, and facing a significant duration of imprisonment.  Whilst he has served a significant proportion of his existing non-parole period, it cannot be said that his eligibility for parole is imminent.  There has been no culpable delay in the prosecution of these proceedings, or the Director’s application for permission to appeal.  The respondent is relatively young, but this is not his first term of imprisonment, and his offending occurred in breach of a partially suspended sentence bond.  It cannot be said that the respondent has embarked upon a course of rehabilitation that would be interrupted or undermined by exposing him to the potential of a longer sentence of imprisonment.

9. It is for these reasons that we said that, at first blush, this is a relatively strong case for this Court’s intervention, despite the caution and restraint that is appropriate in Crown appeals. 

   Rare and exceptional

10. However, and perhaps for this reason, the respondent in the present matter mounted a more fundamental challenge to the approach taken to Crown appeals by both the Director and this Court.  The respondent attached to his submissions a schedule of the applications for permission to appeal against sentence brought by the Director over the four years since the Court of Appeal was established.  The schedule identified 50 applications for permission to appeal, or approximately 12 each year.  Of those applications, the Court has granted permission to appeal in approximately two-thirds of cases.  The applications span a wide range of criminal offences, including multiple applications relating to each of the following types of offending: sexual abuse of children, child exploitation material, domestic and other serious violence, robbery, causing death by dangerous driving, cannabis cultivation, drug trafficking, and drug importation.  Whilst many of the Director’s applications have involved challenges to the adequacy of the length of the head sentence imposed, some have involved challenges to the decisions to suspend or order home detention, or to other aspects of the sentencing process.

11. In developing this challenge to the approach taken to Crown appeals against sentence, the respondent focussed upon the High Court’s references in Everett v The Queen[40] to the power to entertain such appeals being confined to ‘rare and exceptional’ cases.  Whilst accepting that the reference to ‘exceptional’ directed attention to the nature or quality of the error required to justify intervention, the respondent contended that the reference to ‘rare’ was directed to the frequency with which applications for permission to appeal are brought by the Director and granted by the Court.  The respondent challenged this Court’s interpretation of the references to ‘rare’, particularly as articulated in the passages referred to later in these reasons from the decisions of this Court in R v Yaroslavceff[41] and R v Kelly.[42]  Arguing that this Court has allowed Crown appeals to become ‘common and typical’ rather than ‘rare and exceptional’, the respondent contended that the Court should refuse leave in the present case so as to reinforce the restraint which is appropriate, and to give content to the requirement that such appeals be ‘rare and exceptional’.

    [40]   Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson and Gaudron JJ).

    [41]   R v Yaroslavceff [2022] SASCA 123 at [71]-[72] (Doyle JA).

    [42]   R v Kelly [2023] SASCA 22 at [41]-[44] (Lovell JA).

12. In addressing this submission it is convenient to commence by identifying the origin of the references to Crown appeals against sentence being ‘rare and exceptional’, before then addressing the meaning of this phrase, and its implications for this Court’s approach to Crown appeals against sentence.

13. The origin of the references to Crown appeals against sentence being ‘rare’ appears to lie in the reasons of Barwick CJ in Griffiths v The Queen,[43] and Deane and McHugh JJ in Malvaso v The Queen.[44]  Both of these references were then applied, with the added reference to ‘exceptional’, in the joint reasons of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen.  In describing the Court of Criminal Appeal’s jurisdiction under the relevant Tasmanian legislation to grant leave to the Attorney-General to appeal against sentence, their Honours said:[45]

    Such a jurisdiction has become commonplace throughout this country and the common law world.  Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case.  An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.[46]  That being so, a ‘court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified’.[47]  In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:[48]

    ‘an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’

    The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’.[49]

    [43]   Griffiths v The Queen (1977) 137 CLR 293 at 310 (Barwick CJ).

    [44]   Malvaso v The Queen (1989) 168 CLR 227 at 234-235 (Deane and McHugh JJ).

    [45]   Everett v The Queen (1994) 181 CLR 295 at 299-230 (Brennan, Deane, Dawson and Gaudron JJ).

    [46]   Footnote omitted.

    [47]   Malvaso v The Queen (1989) 168 CLR 227 at pp 234-235.

    [48] (1977) 137 CLR 293 at p 310. See, to the same effect, p 327 per Jacobs J, with whom Stephen J agreed, and pp 329-330, per Murphy J.

    [49] Ibid, at p 310.

14. Their Honours later returned to the topic, adding:[50]

    As has been said above, the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. 

    [50]   Everett v The Queen (1994) 181 CLR 295 at 305 (Brennan, Deane, Dawson and Gaudron JJ).

15. It can thus be seen that the references by their Honours to Crown appeals being ‘rare and exceptional’ were closely linked to references to the concern with exposing offenders to the prospect of double jeopardy.  In their Honours’ view, the undesirability of double jeopardy called for restraint in the exercise of the Court’s jurisdiction to grant Crown appeals on sentence, with the consequence that applications for permission to appeal by the Crown ‘should’ only be brought and allowed in rare and exceptional cases.  The Court’s intervention will not be justified in every case of error but, importantly, may be justified in order to address matters of principle, including ‘manifest inadequacy and inconsistency in sentencing standards’.

16. In his separate reasons, McHugh J described the jurisdiction to entertain Crown appeals against sentence in similar terms.  Whilst emphasising the exceptional nature of the jurisdiction, and that the circumstances justifying intervention ‘are likely to be rare’, his Honour recognised the public interest in intervention in appropriate cases.  In this context, his Honour expressly referred to the importance of maintaining the adequacy and uniformity of sentences to public confidence in the administration of justice.  His Honour said:[51]

    It is well established that, in those jurisdictions where the Crown has a right to apply for leave to appeal against a sentence, leave should be given only in exceptional circumstances.  The need for exceptional circumstances imposes a stringent barrier to the grant of leave to appeal in such cases. …

    … The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing.  Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction.  Sentences that are higher than usual create justifiable grievances in those who receive them.  But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public.  Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.  To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.

    If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals.  It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved.  Such cases, however, are likely to be rare.  Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task.  What is the range in a particular case is a question on which reasonable minds may differ.  It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.  Disagreement  about the adequacy of the sentence is not enough to warrant the grant of leave.  Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence.  The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.

    [51]   Everett v The Queen (1994) 181 CLR 305-307 (McHugh J) (omitting citations).

17. In cases since Everett v The Queen, intermediate appellate courts have routinely described the jurisdiction to entertain Crown appeals against sentence as one to be exercised only in ‘rare and exceptional’ cases.  However, this has generally involved reference to this phrase as an indication of the need for restraint, or of the need for something more than ‘mere’ error, with the focus then being upon identifying the types of cases in which there may exist a public interest in intervention that outweighs the concern to avoid double jeopardy.  The passages referred to above from the reasons of Doyle CJ in R v Nemer[52] and the Court in R v Singh[53] are illustrations of this approach.  The cases have not generally involved any greater focus upon the phrase ‘rare and exceptional’, and in particular the significance of the inclusion of the reference to ‘rare’.

    [52]   R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).

    [53]   R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA).

18. The significance of the inclusion of this word was, however, considered by the New South Wales Court of Appeal in R v JW.[54]  The Court did so in the context of its consideration of the implications of a legislative reform which abolished double jeopardy as a relevant consideration in the context of Crown appeals; both in determining whether to allow or dismiss a Crown appeal, and in resentencing an offender in the case of a successful Crown appeal.  The Court sat as a bench of five, with the leading judgment written by Spigelman CJ.  Allsop P, and McClellan CJ at CL, Howie and Johnson JJ, agreed with Spigelman CJ.[55] 

    [54]   R v JW (2010) 77 NSWLR 7.

    [55]   Spigelman CJ’s reasoning in R v JW has also been referred to with approval in R v Carroll (2010) 77 NSWLR 45; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; and Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634 at [87]-[98] (Ashley, Redlich and Weinberg JJA).

19. In the course of addressing the extent of the residual discretion to dismiss a Crown appeal on grounds other than double jeopardy,[56] Spigelman CJ addressed the High Court’s references in Griffiths v The Queen, Malvaso v The Queen and Everett v The Queen to the ‘rarity’ of Crown appeals.  In his Honour’s view, these references were merely a reflection or expression of the restraint required by the concern to avoid double jeopardy, and did not represent any separate principle or consideration that might remain relevant despite the statutory abolishment of double jeopardy as a relevant consideration in New South Wales.[57]

    [56]   R v JW (2010) 77 NSWLR 7 at [95] (Spigelman CJ).

    [57]   R v JW (2010) 77 NSWLR 7 at [99]-[130] (Spigelman CJ).

20. In the course of his reasoning to this effect, Spigelman CJ doubted whether ‘rarity’ could constitute a sentencing principle, or quantitative limit upon Crown appeals:[58]

    There appears to be no authority which indicates how the ‘rarity’ proposition can be deployed as a sentencing principle applicable in an individual case.  It is not clear how the Court would determine that, in some quantitative manner, over some period of time, the position has been reached that Crown appeals have become too frequent.

    [58]   R v JW (2010) 77 NSWLR 7 at [100] (Spigelman CJ).

1. His Honour referred, with apparent approval, to the following passage from the reasons of Street CJ in R v Holder[59] acknowledging the appropriateness of caution in Crown appeals, but also suggesting that it would be wrong to discourage them:

   … courts are understandably more ready to ascribe error where the ground is manifest excess than where the ground is manifest inadequacy.  It would, however, be wrong for courts to adopt a posture of discouraging the bringing of Crown appeals whether by direct statements to this effect or by reluctance to entertain them fairly and properly.  The legislature has specifically provided for a Crown appeal against sentence.  It is the province of the Crown law authorities to determine whether in any given case to bring such an appeal.  It is the duty of the court to decide it.  If rights under a statute are used oppressively so as to amount in effect to a misuse, then it is both right and proper for a court to say so.  But the mere fact that the Crown exercises its right to appeal falls far short of justifying expressions of judicial disapprobation.

   [59]   R v Holder (1983) 3 NSWLR 245 at 255 (Street CJ); R v JW (2010) 77 NSWLR 7 at [103] (Spigelman CJ).

2. Spigelman CJ then addressed the High Court’s references to rarity in the context of Crown appeals.  Referring to Barwick CJ’s statement in Griffiths v The Queen that such appeals ‘should be a rarity’, Spigelman CJ suggested that this might have been intended as more advisory than obligatory, and, in any event, directed more to the executive which determines whether to bring the appeals than to the judiciary.[60]  Referring next to the passage from the joint reasons in Everett v The Queen set out earlier in these reasons, Spigelman CJ noted the support for intervention in cases involving errors of principle, including manifest inadequacy and inconsistency in sentencing standards.  Whilst consistent with restraint, his Honour considered that this description of the bases for intervention meant that ‘the frequency of appeals must be tied to the frequency of error’, with the frequency of error being ‘of significance in terms of determining whether or not Crown appeals are, as a matter of fact, ‘rare’.’[61]

   [60]   R v JW (2010) 77 NSWLR 7 at [106] (Spigelman CJ).

   [61]   R v JW (2010) 77 NSWLR 7 at [110]-[111] (Spigelman CJ).

3. Spigelman CJ set out a passage from the reasons of Charles JA in R v Clarke[62] summarising the circumstances in which there might be a proper basis for intervention on a Crown appeal.  The summary was in terms very similar to the authorities in this jurisdiction, and indeed expressly drew on King CJ’s description of those circumstances in R v Osenkowski.[63]  However, Spigelman CJ went on to observe that the ‘frequency and significance of these matters can change over time’.[64]  His Honour mentioned in this regard the greater number and diversity of judges, with the consequential potential for issues of consistency to arise more often.[65]  His Honour also mentioned the increase in statutory intervention and complexity in the sentencing process, which had also increased the scope for errors warranting correction or guidance.[66]  In his Honour’s view, the approximate doubling in the number of Crown appeals over the preceding 20 years was not unreasonable in the circumstances.[67]

   [62]   R v Clarke (1996) 2 VR 520 at 522 (Charles JA).

   [63]   R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).

   [64]   R v JW (2010) 77 NSWLR 7 at [113] (Spigelman CJ).

   [65]   R v JW (2010) 77 NSWLR 7 at [114] (Spigelman CJ).

   [66]   R v JW (2010) 77 NSWLR 7 at [115]-[116] (Spigelman CJ).

   [67]   R v JW (2010) 77 NSWLR 7 at [117] (Spigelman CJ).

4. Noting a statement, during the course of Parliament’s consideration of the legislative amendment to abolish the relevance of double jeopardy, to the effect that Crown appeals are, and should continue to be, ‘rare’, Spigelman CJ said:[68]

   In part, this could be understood to reflect an aspiration that sentencing error and manifestly inadequate sentences are not expected to occur often.  However, primarily it should be treated as an indication about the approach to be taken on the part of the Director of Public Prosecutions in the exercise of his or her discretion to institute such appeals.  In this respect it is a statement directed to the executive, not to the judiciary.  Whatever the expectation or intention, the words cannot bind the Court when determining the scope of the ‘double jeopardy’ principle which was, after all, created by the judiciary, not by Parliament.

   [68]   R v JW (2010) 77 NSWLR 7 at [120] (Spigelman CJ).

5. Spigelman CJ noted the reluctance of courts to interfere with the prosecutorial discretion, other than to prevent an abuse of process or to ensure a fair trial, and indeed the difficulties associated with any attempt to interfere on any broader basis.[69]  Whilst accepting that restraint by courts in their consideration of Crown appeals was appropriate, and that successful appeals should be rare, his Honour considered that this was merely a reflection of the weight to be attached to the concern to avoid double jeopardy:[70]

   Insofar as ‘rarity’ was intended to apply as a sentencing principle by way of guidance to courts of criminal appeal, it should be understood as reflecting the double jeopardy principle, now abolished [in New South Wales].  Other reasons for the frequency or otherwise of such appeals are not matters that are generally of concern to a court of criminal appeal.  They are directed to the prosecuting authorities.

   [69]   R v JW (2010) 77 NSWLR 7 at [121]-[123] (Spigelman CJ), referring by way of example to Barton v The Queen (1980) 147 CLR 75 at 94-95; R v Apostilides (1984) 154 CLR 563 at 571-575; and Maxwell v The Queen (1996) 184 CLR 501 at 512-514, 534.

   [70]   R v JW (2010) 77 NSWLR 7 at [129] (Spigelman CJ).

6. In our view, there is force in Spigelman CJ’s articulation of the difficulties in treating ‘rarity’ as a free-standing principle to be applied in determining whether to grant permission to appeal in a proposed Crown appeal against sentence.  It is difficult to see how it could be meaningfully and appropriately applied as a basis for refusing permission to appeal in an individual case.  It is not clear how this Court could determine whether or when Crown appeals have ceased to become rare.  If it involves some numerical assessment of the permissible frequency of such appeals, it is unclear whether the assessment should be carried out on an absolute or proportionate basis, and, if the latter, whether the assessment should be by reference to the overall volume of sentences handed down, the overall volume of sentencing appeals, or perhaps some subset referable to a particular type of offence or sentencing principle.  Even if the point at which such appeals cease to be rare could be determined, refusing a particular application for permission to appeal on that basis would surely involve an unacceptable appearance, indeed reality, of arbitrariness.

7. In our view, ‘rare and exceptional’ is better seen not as a test or criterion, or even principle, to be applied or satisfied in a particular case, but rather as a compendious reference to, or reflection of, the importance of restraint in exercising the Court’s jurisdiction to entertain Crown appeals against sentence.  It is a reference to, or reflection of, the need to give separate and distinct consideration to whether there is not only error in the sentencing discretion, but also a public interest in intervention that outweighs the hardship to the respondent in exposing him or her to the double jeopardy associated with being resentenced.  As such, the phrase directs attention to the nature of the error and hardship, by reference to considerations such as those listed earlier in these reasons.

8. In R v Yaroslavceff, this Court was concerned with an application by the Director for permission to appeal on the grounds of manifest inadequacy.  After setting out the principles governing such an application, Doyle JA added the following by way of explanation of the phrase ‘rare and exceptional’:[71]

   The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director.  Rather, it requires a qualitative assessment.  It directs attention to the nature of the error that is required to justify intervention.  In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.

   The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one.  It involves questions of degree,[72] and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed.[73]

   [71]   R v Yaroslavceff [2022] SASCA 123 at [71]-[72] (Doyle JA).

   [72]   R v Nemer (2003) 87 SASR 168 at [27] (Doyle CJ)

   [73]   R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ).

9. This passage has been referred to with approval in a number of subsequent decisions of this Court.[74]

   [74]   R v Kelly [2023] SASCA 22 at [43] (Lovell JA), [96] (Bleby and David JJA); R v Jensen-Coulson [2023] SASCA 76 at [53] (Bleby and David JJA); and R v Toft [2024] SASCA 13 at [74] (Lovell, Bleby and David JJA); see also R v Schulz [2023] QCA 150 at [74] (Dalton JA).

10. In R v Kelly, Lovell JA agreed that the phrase ‘rare and exceptional’ directed attention to the nature of the error required to justify intervention.  His Honour added:[75]

    The application of the ‘rare and exceptional’ principle reflects the operation of the double jeopardy principle when a court considers the question of whether the prosecution should be granted permission to appeal.

    While it is well established that on a prosecution appeal against sentence the ‘rare and exceptional’ principle must be rigorously applied, there has been little judicial discussion about how the rarity aspect can be deployed as a sentencing principle. The legislature has specifically provided for a prosecution appeal against sentence. It is the Director of Public Prosecutions who determines whether to bring an appeal in any particular case; the court’s obligation is to decide it. The expression ‘rare’ cannot be relevant to, nor interfere with, the prosecutorial discretion as to when an appeal against sentence should be pursued. ‘Rare’, in the context of a prosecution appeal against sentence, refers to the exceptional nature of granting permission on a prosecution appeal.[76]

    [75]   R v Kelly [2023] SASCA 22 at [41]-[42] (Lovell JA).

    [76]   R v JW [2010] NSWCCA 49.

11. The above passages from R v Yaroslavceff and R v Kelly are both consistent with the explanation offered above for the High Court’s references to Crown appeals being ‘rare and exceptional’.  They are appropriate summaries of the approach to be taken to Crown appeals.

12. Subsequently, in R v Henderson, Livesey P and David JA addressed the issue in the following terms:[77]

    Whilst it may be accepted that determining whether a case is ‘exceptional’ requires a qualitative analysis, the determination of what is ‘rare’ involves an analysis that is comparative, though not merely arithmetic.  A case cannot properly be said to be rare if it is common or frequent.[78]  In important respects the analysis is evaluative.  Having said that, the number of cases in which the prosecution is granted permission to appeal against sentence will depend on a range of considerations, including the number of cases in which material errors were made by sentencing courts which have in turn been made the subject of applications for permission to appeal.  Certainly, to say that the prosecution will only be granted permission to appeal against sentence in ‘rare and exceptional’ cases does not suggest that most applications made by the prosecution should fail. 

    The requirement that permission to appeal sentence will only be granted to the prosecution in ‘rare and exceptional’ cases reinforces both the public policy features which must be observed as well as the exceptional nature of the course the appeal court is being invited to take.[79]  Indeed, it identifies whether in a particular case there exist strong reasons of public policy which require that permission to appeal be granted notwithstanding the public interest in ensuring that a defendant is not twice vexed by the State.

    [77]   R v Henderson (2023) 142 SASR 507 at [42]-[43] (Livesey P and David JA); see also R v Harris [2023] SASCA 129 at [49] (Livesey P, Lovell and Bleby JJA).

    [78]   Police (SA) v Cadd (1997) 69 SASR 150 at 159 (Doyle CJ) these restrictions “may make it difficult for a Court of Criminal Appeal of a State to perform its supervisory function … [and] do not apply … to an appeal against a non-custodial sentence”. Compare, R v Yaroslavceff [2022] SASCA 123 at [71] (Doyle JA).

    [79]   Everett v The Queen (1994) 181 CLR 295 at 305 (McHugh J).

13. In our view, this is consistent with what has been said above, and in R v Yaroslavceff and R v Kelly.  Whilst their Honours observed that ‘rare’ invites some form of comparative analysis, and that a case is not rare if it is common or frequent, we do not understand their Honours to have suggested that ‘rarity’ is a test or principle capable of direct application in an individual case, or that it provides a basis in and of itself for refusing permission to appeal in an individual case.  Read as a whole, their Honours’ remarks support an approach that requires restraint, with a focus upon the type of error and the existence of a public interest in intervention that outweighs the concern to avoid twice vexing an offender.

14. For completeness, we note the statement in R v Buttigieg[80] that the ‘rare and exceptional’ test should be rigorously applied.  However, read in context this was not a suggestion that this phrase was a test or criterion to be applied in its own terms, and as a quantitative limit upon Crown appeals.  To the contrary, the passage which follows makes it plain that it was intended merely to emphasise the need to identify both error and ‘strong reasons of public policy’ to justify intervention, which is consistent with the approach indicated in these reasons.

    [80]   R v Buttigieg (2020) 352 FLR 170 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing).

15. For the reasons set out above, the frequency with which Crown appeals have been brought and succeeded in recent years does not of itself provide a basis for refusing the Director’s application for permission to appeal.  Whilst the frequency underscores the need to identify a proper basis for intervention, we have explained why the public interest in maintaining consistency in sentencing standards amply justifies intervention in the present case.  In the circumstances, it is appropriate to grant permission to appeal, allow the appeal and resentence the respondent.

    Resentence

16. In resentencing the respondent, we have had close regard to the circumstances of the respondent and his offending, as set out earlier in these reasons.

17. Commencing with the most serious of his offences, the aggravated robbery, a starting point of 6 years is appropriate.  As addressed in more detail when explaining why a starting point of 3 years and 6 months was manifestly inadequate, the limited sophistication and premeditation, and context of drug addiction, are relevant considerations.  But they do not provide a basis for any significant departure from the numerical guidance provided by the standard in R v Place.  And there are other features of the offending (the brandishing of the knife, the express threat to use it, and the attempt to climb the counter between the respondent and the attendant) which underscore its seriousness.  Similarly, whilst there are some aspects of the respondent’s background deserving of sympathy, and he is still a relatively young man, nevertheless his history of offending, and the fact that he was subject to a partially suspended sentence bond at the time of the present offending, leave very little scope for leniency.

18. A reduction of 25 per cent in the head sentence for the respondent’s plea of guilty results in a notional sentence for Count 5 of imprisonment for 4 years and 6 months.

19. There being no challenge to the other aspects of the sentence imposed by the sentencing judge, it is appropriate to take an equivalent approach.

20. Accordingly, we would impose sentences of 6 months imprisonment for each of Counts 1 to 3 which, after a 30 per cent reduction for the respondent’s pleas of guilty, results in a sentence of 4 months and 6 days imprisonment for each.  For Count 4, we would impose a sentence of 9 months imprisonment, reduced by 30 per cent for the respondent’s plea of guilty, to 6 months and 9 days imprisonment.

21. As the sentencing judge recognised, there was significant scope for concurrency given the relatively short period of time over which the offending occurred, the similar nature of the offences, and their common link to the respondent’s drug addiction.  The imposition of a significant penalty in respect of the aggravated robbery offence has the potential to achieve a significant proportion of the work otherwise to be done by the penalties for the other offences in achieving the usual range of sentencing objectives.

22. In order to give effect to this concurrency, we would utilise s 26 of the Sentencing Act and impose a single sentence of 5 years and 3 months imprisonment for Counts 1 to 5.  We would order that this sentence be served cumulatively upon the 4 months, 1 week and 5 days imprisonment called into effect by reason of the breach and revocation of the respondent’s partially suspended sentence bond, giving an overall sentence of imprisonment for 5 years, 7 months, 1 week and 5 days.  In our view, this sentence would be adequate and appropriate to achieve the objectives of the sentencing exercise, and to ensure that the ultimate sentence is proportionate to the overall criminality of the respondent’s offending and his personal circumstances.

23. Turning to the non-parole period, the respondent’s history of offending leaves little room for leniency.  However, having regard to the respondent’s relatively young age, and the matters that the sentencing judge considered left room for some guarded optimism as to his prospects for rehabilitation, we would fix a non-parole period of 3 years and 6 months.

    Conclusion and orders

24. For the reasons set out, we grant permission to appeal, allow the appeal, set aside the sentence below and in lieu thereof sentence the respondent to imprisonment for 5 years, 7 months, 1 week and 5 days, with a non-parole period of 3 years and 6 months.  The sentence will be backdated to commence from 6 September 2023.