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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Betts

Details

AGLC: R v Betts [2011] SASCFC 27
Case: [2011] SASCFC 27
Decision Date: 21 April 2011

CaseChat Overview and Summary

In *R v Betts*, the applicant appealed against a sentence imposed by a judge of the District Court. The applicant and another individual, a youth, were found to be participants in a joint enterprise to rob a taxi driver. A third person, Ms Cooper, was sentenced for the lesser offence of theft, having been present and shared in the proceeds but not being a participant in the robbery itself. The youth was sentenced in the Youth Court.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge’s starting point of six years imprisonment for the applicant was manifestly excessive. The applicant’s counsel did not challenge any errors of fact or principle by the sentencing judge, but rather argued that the severity of the starting point was disproportionate to the offending.

The Court acknowledged the seriousness of the aggravated robbery offence, particularly given the vulnerability of taxi drivers and the need for personal and general deterrence. The applicant’s prior record, which indicated a need for personal deterrence, and the distressing impact on the victim were also considered significant factors. However, the Court also noted that the offence was unplanned and opportunistic, with no weapon used and only minor physical violence. The applicant’s conduct was described as having a "fumbling or amateurish quality," and he was found to be heavily intoxicated shortly after the incident. Despite the applicant’s recent attempts at rehabilitation, including engaging in work and a methadone program while on bail, his poor record and previous unseized opportunities for rehabilitation meant there was limited scope for leniency. The Court ultimately found that while a substantial sentence was appropriate, the starting point of six years was manifestly excessive.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE CJ WHITE J PEEK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, WHITE J, PEEK J

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.