R v Bartel

Case [2008] SASC 289

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BARTEL

[2008] SASC 289

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

31 October 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT

Appeal against sentence - defendant pleaded guilty in the District Court to three counts of aggravated armed robbery - sentencing Judge exercised his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence with respect to the three offences of 16 years' imprisonment with a non-parole period of 10 years - Director of Public Prosecutions conceded that the Judge erred in applying the totality principle and considering whether the sentence was too crushing at the wrong stage of the sentencing process - whether a different sentence should have been imposed.

Held: appeal allowed - sentence imposed was manifestly excessive - sentence imposed by District Court set aside - defendant sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years - observations on "instinctive synthesis" approach.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Randall-Smith and Davi (2008) 100 SASR 326; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395; R v Khim [2002] SASC 343; Markarian v The Queen (2005) 228 CLR 357; AB v The Queen (1999) 198 CLR 111; R v Young [1990] VR 951; Wong v The Queen (2001) 207 CLR 584; R v Nylander (2003) 228 LSJS 24, considered.

R v BARTEL
[2008] SASC 289

Court of Criminal Appeal         Gray, Sulan and David JJ

THE COURT

  1. This is an appeal against sentence.

  2. On 18 February 2008, Glenn James Bartel, the defendant and appellant, pleaded guilty in the District Court to three counts of aggravated armed robbery committed on 12, 22 and 24 January 2007.

  3. The sentencing Judge exercised his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence with respect to the three offences. The Judge imposed a total sentence of imprisonment of 16 years and fixed a non-parole period of 10 years. The Judge directed that the sentence commence on 7 March 2007, the date on which the defendant was taken into custody.

  4. The motive with respect to each of the offences was the need to obtain money to meet a debt owed to a drug dealer.  Apparently the defendant had developed a substantial amphetamine addiction over a lengthy period of time.  It was said that the drug dealer had a reputation for aggression and that the mounting pressure with respect to the repayment of the debt led to the present offending. 

  5. The first two robberies took place at Subway Restaurants and involved a demand for money associated with a…

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R v Bartel [2008] SASC 289
Case
[2008] SASC 289
Decision Date

CaseChat Overview and Summary

In the case of R v Bartel, the defendant appealed against his sentence following a guilty plea in the District Court to three counts of aggravated armed robbery. The District Court Judge imposed a sentence of 16 years' imprisonment with a non-parole period of 10 years, exercising his powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The Director of Public Prosecutions acknowledged that the Judge had erred in applying the totality principle and in considering whether the sentence was too crushing at the wrong stage of the sentencing process. The central legal issue was whether a different sentence should have been imposed given these errors.

The court found that the sentence imposed was manifestly excessive due to the failure to properly consider the application of the totality principle. The process of adding individual notional sentences to arrive at a starting point for a single sentence, followed by further discounts for totality, created an air of unreality about the sentencing process. The total notional sentence, which exceeded the defendant’s life expectancy by 25 years, rendered the discounting process irrelevant. This approach was criticised in previous cases such as Randall-Smith and Nylander. The Court concluded that the sentence was too crushing and failed to appropriately consider the overall criminality of the defendant, his contrition, and the need for an immediate custodial term.

Accordingly, the appeal was allowed, and the defendant was re-sentenced. The Court imposed a head sentence of 12 years with a non-parole period of nine years, exercising its powers under section 18A of the Criminal Law (Sentencing) Act to impose a single sentence for all offences. This sentence took into account the pleas of guilty, assistance given to the police, and the defendant’s contrition and remorse. The Court found that this sentence was appropriate given the seriousness of the offending and the defendant’s antecedents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We agree with and adopt the following observations of Gray and Layton JJ in Randall-Smith:[24]The subsequent addition by the Judge of the individual notional sentences to arrive at a starting point for a single sentence from which discounts for pleas, contrition and cooperation, and then further discounts for totality were made, created an air of unreality about the sentencing process. It was this type of process that led this Court, in Nylander,[25] to comment adversely on such an approach. Bleby J, with whom Prior and Sulan JJ agreed, having referred to the above observations in Symonds, commented: [26]There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. [24] R v Randall-Smith and Davi (2008) 100 SASR 326.[25] R v Nylander (2003) 228 LSJS 24.[26] R v Nylander (2003) 228 LSJS 24 at [81]-[85].Conclusion It is the view of this Court that the sentence imposed was manifestly excessive. The failure to properly consider the application of the totality principle contributed to the excessive sentence. This Court considers that a different and lesser sentence should be imposed. Accordingly, this appeal should be allowed and the defendant re-sentenced. There was no dispute about the circumstances of the offending, the defendant’s antecedents, the defendant’s contrition and remorse or the need for there to be an immediate custodial term of imprisonment. Having regard to all the relevant circumstances, this Court considers that a head sentence of 12 years with a non-parole period of nine years is an appropriate sentence having regard to the overall criminality of the defendant. In arriving at this sentence this Court considers it appropriate to exercise its powers under section 18A of the Criminal Law (Sentencing) Act to impose the one sentence for all offending. In arriving at the head sentence of 12 years, a reduction of two years has been made on account of the pleas of guilty, for assistance given to the police and the contrition and remorse displayed by the defendant. Having determined the head sentence of 12 years and a non-parole period of nine years the Court has stood back and considered, whether in all the circumstances, such a sentence is too crushing. The Court is of the view that the sentence is not too crushing having regard to the seriousness of the offending and the defendant’s antecedents.

Ratio Decidendi

Legal Principle Established

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