R v Betts - [2011] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BETTS
[2011] SASCFC 27
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
21 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Applicant sentenced for the aggravated robbery of a taxi driver - the Judge commenced with a starting point of imprisonment for six years with a resultant head sentence of four years and six months, reduced on account of the guilty plea and time in custody - the applicant sought permission to appeal against the sentence on the grounds that the starting point and resultant sentence were manifestly excessive.
Held: permission to appeal granted - appeal allowed - sentence set aside - the sentencing Judge's starting point was disproportionate to the seriousness of the offence - applicant re-sentenced.
Criminal Law Consolidation Act 1935 (SA) s 137, referred to.
R v Van Huizen Unreported, Supreme Court of South Australia, Judgment No 2132, 23 February 1990, discussed.

R v BETTS
[2011] SASCFC 27
Court of Criminal Appeal: Doyle CJ, White and Peek JJ

DOYLE CJ. I agree with the orders proposed by White J, and with his reasons. There is nothing that I wish to add.
WHITE J. At about 12.30 am on 27 March 2007, the applicant and two others robbed a taxi driver at Mansfield Park of about $200. As a result the applicant was charged with the offence of aggravated robbery[1] to which he pleaded guilty in the District Court.
[1] Contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The Judge commenced with a starting point of imprisonment for six years which he reduced by one year on account of the plea of guilty, and by a further six months on account of time in custody. This resulted in a head sentence of four years and six months. The Judge imposed a non‑parole period of three years.
The applicant seeks permission to appeal against that sentence, contending that the Judge’s starting point, and the resultant sentence, were manifestly excessive. A Judge of this Court refused the applicant permission to appeal. He has renewed his application before the Full Court.
The Circumstances of the Offending
Shortly after midnight on 27 March 2007, the applicant was waiting on North Terrace in the City for the Metropolitan Aboriginal Patrol bus. He was intoxicated and intended to go to Largs Bay. At the same time, two Aboriginal women were entering a taxi nearby. One was Donna Cooper and the other a youth. Ms Cooper invited the applicant to accompany them in the taxi and he did so, travelling in the rear seat.
The applicant and Ms Cooper directed the taxi to Ms Cooper’s sister’s home at Mansfield Park, where Ms Cooper and the youth intended to sleep for the night. None of the passengers had the money with which to pay the $26.50 fare. The taxi driver was led to believe that the youth would stay in the cab while the applicant and Ms Cooper went inside to get some money. The youth did wait for a few moments but then also alighted and opened the driver’s door, telling the taxi driver to get out. He refused. The youth then attempted to pull him from the taxi. While this was happening, the applicant commenced rummaging through the front passenger area, while at the same time speaking aggressively. The taxi driver was thoroughly frightened and he handed over the money which he had in his shirt and trouser pockets. In addition, the applicant took his coin wallet.
The taxi driver was then able to drive away. Altogether about $200 was taken from him. The three offenders shared the proceeds between themselves.
A short time later, police found the applicant in the front yard of a nearby house, almost asleep. At that stage they did not realise that he had been involved in a robbery. The police regarded him as being so intoxicated as to warrant apprehension under the Public Intoxication Act 1984 (SA). Accordingly they took him to a police station where he was released after a few hours.
The applicant became aware, a few days later, that the police were looking for him. On 4 April 2007 he voluntarily identified himself to the police and made admissions about his involvement in the robbery.
Quite apart from the loss of the money, the incident was very distressing for the victim. At the time he was a recent immigrant to Australia and had been driving taxis for only a few days. He had the frightening experience of being confronted and menaced, late and night and while alone, by three people, two of whom behaved in a threatening way.
The Applicant’s Circumstances
The applicant is now 31 years of age. The Judge described his unfortunate upbringing in the following passage:
You had an unsettled and dysfunctional upbringing. At the age of one you were fostered out because your parents were unfit to raise you. You endured a succession of placements. However, when you were seven your mother took over your care. She was an itinerant alcoholic. Consequently you lived with her a number of places. Your schooling was disrupted. You left school part way through Year 9.
The applicant has a poor criminal history, with his antecedent record exceeding four pages. He has numerous previous court appearances for offences of violence and dishonesty. Much of his adult life has been spent either in prison or on parole.
A letter from the Parole Board indicates that the applicant has been given numerous opportunities in the past to modify his behaviour. Despite repeated assurances to the Parole Board, he has almost routinely breached his parole conditions, on some occasions quite soon after a release. Many of the applicant’s parole breaches appear to be associated with his alcohol and drug abuse. Despite commitments to address that abuse, the Parole Board reports that the applicant has not done so. I note again that the offence committed on 27 March 2007 was committed while the applicant was intoxicated.
It seems, however, that the Parole Board has not had further involvement with the applicant since June 2007.
The Judge accepted that in recent years the applicant has attempted to address his underlying problems. While on bail for the present offence, he engaged in regular work and in a methadone program. It seems, however, that when last taken into custody, the applicant was still abusing alcohol.
Consideration
Counsel for the applicant did not submit that the Judge had made any error of fact or principle. His submission was simply that the Judge’s starting point of six years was manifestly excessive.
The Judge sentenced the applicant on the basis that he and the youth were participants in a joint enterprise to rob the taxi driver. He sentenced Ms Cooper for the lesser of offence of theft on the basis that she was not a participant in that enterprise but had been present and had shared in the proceeds. The youth was sentenced in the Youth Court.
The applicant’s offence was serious. It was the aggravated form of the offence of robbery because the applicant and the youth were acting in concert.[2] The seriousness with which the law views offences of this kind is reflected in the maximum penalty of life imprisonment.
[2] CLCA s 137(3).
Taxi drivers carry out an important function in the community. They are especially vulnerable to attacks of this kind. They are entitled to look to the law for protection. Considerations of personal and general deterrence should play a large part in sentences imposed for this kind of offending.
I note again the distressing effect of the offence on the victim. These considerations, together with the need for personal deterrence which the applicant’s record indicated was necessary, meant that a substantial sentence of imprisonment was appropriate.
Nevertheless, the seriousness of the applicant’s offence has to be kept in perspective. It was an unplanned opportunistic offence. The applicant was in that taxi only by reason of the last minute invitation of Ms Cooper and there is no suggestion that any plan to rob the taxi driver was formulated during the course of the journey to Mansfield Park. It seems that that intention was formed only after the applicant had alighted from the taxi. Neither the applicant nor the youth used any weapon and, although there was some physical violence to the taxi driver, this was, in relative terms, of a minor kind. Neither the applicant nor the youth engaged in excessive or gratuitous violence and, in the applicant’s case, in no violence at all apart from his menacing language. It could be said that the degree of force involved was close to the minimum necessary to effect the robbery.
Without wishing in any way to diminish the effect of the robbery on the taxi driver, it does seem that the applicant’s conduct had a fumbling or amateurish quality about it. I note again, that shortly after the robbery, the applicant was found in the front yard of a nearby house, nearly asleep and that the police regarded him as so intoxicated as to warrant apprehension on that account alone.
The applicant’s poor record meant that there was little scope for lenience. It is also pertinent that the applicant has previously been given numerous opportunities to rehabilitate himself and yet has not taken advantage of those opportunities.
As King CJ observed in R v Van Huizen,[3] it is important that the sentences imposed by courts bear a proper proportion to the degree of seriousness of the offending and, in particular, to that offending in relation to other types of offending of a more serious kind. The matters to which I have referred above indicate that the applicant’s offence, although serious, was not as grave as many, perhaps most, of the offences of aggravated robbery which come before the courts.
[3] Unreported, Supreme Court of South Australia, Judgment No 2132, 23 February 1990.
Counsel for the Director conceded that the Judge’s starting point was at the upper end of the appropriate range for the applicant’s offence. In my opinion, even allowing for the fact that a strong sentence was needed in this case, this Court should hold that a starting point of six years was out of proportion to the seriousness of the applicant’s offence.
I consider that the punishment of the applicant and the protection of the community in the circumstances of this case could be appropriately achieved by taking a starting point of four years imprisonment. I would reduce that starting point by six months on account of the plea of guilty and by a further six months on account of time in custody. That results in a sentence of imprisonment of three years. I would fix a non‑parole period of two years.
Summary
For the reasons given above, I would grant the applicant permission to appeal. I would allow the appeal and set aside the sentence imposed by the Judge. In its place I would impose a sentence of imprisonment of three years with a non‑parole period of two years. I would direct that that sentence be taken to have commenced on 24 March 2010 when the applicant was returned to custody.
PEEK J. I agree with the orders proposed by White J, and with his reasons.