R v Blackmore - [2004] SASC 298

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BLACKMORE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
24 September 2004
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
DPP appeal against sentence - Respondent committed two robberies, stealing a total of $16,716.00 and one attempted robbery - In one robbery respondent made out that he was armed - Respondent 18 years of age at time of offending - Aboriginal - Mother gambling addict and father frequently incarcerated - Respondent left home at young age due to difficult relationship with stepfather - No prior convictions - Completed school and plannning for future study - Influenced to commit robberies by uncle who was addicted to amphetamines - Respondent pleaded guilty and showed contrition - District Court Judge imposed head sentence of three years with non-parole period of 18 months - Serious crimes - Need to provide general deterrence - Sentence manifestly inadequate - Discussion of principles applicable to DPP appeal - Appeal allowed - Respondent sentenced to six years imprisonment with non-parole period of 27 months.
Criminal Law Consolidation Act 1935 s155, s 270A; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v McMann (1997) 70 SASR 1; R v Place (2002) 81 SASR 395; Dinsdale v The Queen (2000) 202 CLR 321, applied.
Griffiths v The Queen (1977) 137 CLR 293, considered.

R v BLACKMORE
[2004] SASC 298
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ:I have read the reasons prepared by White J. I agree with the orders proposed by him. I agree also with his reasons for making those orders. There is nothing that I wish to add.
PERRY J: I have had the benefit of an opportunity to read the reasons prepared by White J. I agree with the orders which he proposes and his reasons.
WHITE J:
Introduction
This is an application by the Director of Public Prosecutions (“the DPP”) for leave to appeal against the sentence imposed upon the respondent following his plea of guilty in the District Court to two counts of robbery and one count of attempted robbery.
The sentencing judge imposed a sentence of 3 years imprisonment with a non-parole period of 18 months, both to commence from 8 May 2003.
It is from that sentence that the DPP seeks leave to appeal. Submissions on the application for leave to appeal and submissions on the substantive merits were heard at the same time.
Circumstances of the Offending
On 10 January 2003, the respondent robbed the branch of the Westpac Bank at Barmera of $5,598.97 in cash. On 5 March 2003, he attempted to commit a robbery at the same bank branch but was unsuccessful. The next day, on 6 March 2003, he robbed a branch of the National Australia Bank at Renmark of $11,118.00.
On each occasion, the respondent entered the bank during trading hours and proceeded to jump the counter and open drawers, looking for money. On the two occasions when he was successful in robbing the bank, he placed the money in a plastic bag, jumped back over the counter and ran out of the door.
On the occasion of the unsuccessful attempt, he jumped over the counter but then jumped back again, before fleeing.
Although on each occasion the respondent was unarmed, on the third occasion he did convey an impression of being armed. Having jumped the counter, the respondent tapped his right hand on a noticeable bulge in his shorts’ pocket, at the same time saying “nobody moves and nobody gets hurt”.
Not surprisingly, employees and customers present in the banks at the time of the robberies experienced very real fear. According to victim impact statements, a number of them remain anxious and apprehensive.
The total stolen was $16,716. Of that amount, about $1,600 was given to a relative. The remainder was applied by the respondent in acquiring amphetamine. No money has been recovered.
The maximum penalty for robbery is 14 years imprisonment (s 155 Criminal law Consolidation Act 1935). The maximum penalty for attempted robbery is nine years four months imprisonment (s 270A(3)(c) Criminal Law Consolidation Act).
The Ground of Appeal
The DPP seeks to raise one ground of appeal:
“The head sentence and on-parole period are manifestly inadequate in that:
(a)the sentence fails to reflect the criminality of the conduct;
(b)the sentence fails to give sufficient weight to general deterrence.”
Respondent’s Circumstances
At time he was sentenced the respondent was 19 years of age. His age at the time of the first offence was 18 years and five months. His age at the time of the second and third offences was eighteen years and seven months. The respondent’s antecedents are summarised in the following passage from the sentencing judge’s sentencing remarks:
“You are a young Aboriginal man and have spent your life growing up in an extremely dysfunctional family. Your mother and biological father were together for only a couple of years. Your mother was a gambling addict with an alcohol problem and your father was often incarcerated, having spent around 14 of the last 20 years in custody. Your father had nine brothers with only one avoiding drug use and gaol. You grew up in this environment living with your mother and stepfather. You ended up leaving home very early because your stepfather, with whom you do have a loving relationship, was nonetheless an extremely authoritarian man and would excessively and severely punish you on a regular basis. Remarkably, by the end of 2002 you had reached the age of 18 and had never been in trouble with the police. That in my limited experience is exceptional. It certainly reflects to your credit. Part of the reason for this is that you had extra support outside the family, particularly from the Baptist Church of Wollongong. You had just achieved the tertiary education score of 77 out of 100 for your matriculation and were planning to continue studying at either university or TAFE.”
As the sentencing judge remarks, the respondent suddenly suffered a complete “role reversal”. By March 2003 he had committed the two robberies and the attempted robbery.
The Approach of the Sentencing Judge
The sentencing judge attributed the sudden change in the respondent to the fact that in November 2002 he came to South Australia from Wollongong to look for work in the Riverland, where he came under the influence of an uncle living in Berri. The uncle was addicted to amphetamine and the respondent, who had previously only smoked cannabis and experimented with some other drugs, became addicted to the same drug.
The respondent’s uncle, who had a long-standing criminal history, not only led the respondent into his amphetamine addiction, but he described to the respondent features of various armed robberies which he had committed in the past. The sentencing judge described the respondent as having been enthralled by the criminal lifestyle which the uncle described.
The sentencing judge was obviously impressed by the respondent’s expressions of shame and remorse, and regarded him as having good prospects for rehabilitation. He observed:
“With the right support and guidance you have the potential to become a leader and a positive role model within the Aboriginal community.”
The sentencing Judge said that but for the respondent’s early pleas of guilty he would have imposed a single penalty of imprisonment for four years. Thus the sentencing Judge allowed a discount of 25 per cent on account of the respondent’s plea of guilty.
Submissions on Appeal
The principal submission made by Mr Kimber for the appellant was that the sentence imposed in this case did not reflect the need for general deterrence of offences of this kind, nor the seriousness of the offence, nor the fact that there had been three separate incursions into criminal conduct. For the respondent, Mr Gaite submitted that there were good reasons for the leniency of the sentencing Judge, including the respondent’s early guilty plea, his good record, his youth, his remorse and the good prospects of rehabilitation to which reference has been made above. The sentence was not so low, he submitted, that it should be regarded as manifestly inadequate.
Crown Appeal
The principles upon which leave is granted for a prosecution appeal against sentence are well established. In Everett v The Queen (1994) 181 CLR 295 at 299 – 230 it was held that leave to the prosecution to appeal against sentence should be granted only in the rare and exceptional case. The majority judgment in Everett went on to hold that in considering the grant of leave, the Court should be guided by the comments of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310. Those comments were to the effect that leave ought not to be granted simply because the appellate court considers the sentence inadequate. The inadequacy must be of such a kind as to indicate error or departure from principle, or a gross departure from the standards of sentence appropriate for offences of the kind in question.
In this Court, it has been held that the proper role for prosecution appeals is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual Judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: R v Osenkowski (1982) 30 SASR 212 per King CJ at 213. In R v Nemer (2003) 87 SASR 168 at 172 [24] Doyle CJ put it slightly differently in holding that the Court should not grant leave to appeal to the prosecution merely with a view to correcting a sentence which is too low. However, if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.
Disposition of the Appeal
The sentence imposed in this case was, in my opinion, lenient. There were good reasons for leniency. In addition to the respondent’s early pleas of guilty, these reasons included the respondent’s youth, his difficult upbringing, his good record, his contrition, the good prospects of rehabilitation, and the likelihood that upon his discharge from prison the respondent would return to his supportive family in Wollongong. Each of these matters was mentioned by the sentencing Judge.
However, the offences committed by the respondent are of a kind in which considerations of deterrence must generally predominate: R v McMann (1997) 70 SASR 1 at 3; R v Place (2002) 81 SASR 395 at 429 [100]. Those whose businesses and employments involve the handing of money are vulnerable to these types of offence. Such persons, and the community generally, are entitled to look to the Courts for protection and to expect that the sentences imposed will provide effective deterrents to future offending of the same kind. The community is also entitled to expect that the sentences imposed for offences of this type will reflect their gravity.
In my opinion, the head sentence of three years imprisonment imposed in this case cannot be regarded as an effective deterrent, nor does it reflect the gravity of the respondent’s offending. Each of the offences committed by the respondent was serious. The sentence imposed may have been appropriate if there had been only one incursion into offending, but that is not this case. The sentence is so low that it should, in my opinion, be concluded that it does not maintain an adequate standard of sentencing for the offence of robbery. Manifest inadequacy of sentence is an error of principle warranting the grant of leave to appeal to the DPP. Accordingly, I would grant leave.
In determining an appropriate sentence, I bear in mind the principle that a sentence substituted on appeal should generally be at the lower end of the range of available sentences: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 341 [62].
Although there are three separate counts and the offences to which they relate occurred on three separate days, I consider that the attempted robbery on 5 March 2003 and the robbery on 6 March 2003 can be regarded, for sentencing purposes, as the one incursion into offending. The respondent had determined on robbing a bank. His first attempt at giving effect to that intention was unsuccessful. The successful robbery on the following day can, I think, be regarded as a continuation of that same incursion into offending. I consider, therefore, that notional sentences, before the application of s 18A of the Criminal Law (Sentencing) Act 1988, can appropriately be determined by treating the offence on 10 January 2003 as the first incursion into offending, and the offences of 5 and 6 March 2003 as the second incursion into offending.
Even taking into account the considerations which inclined the sentencing Judge to leniency, and the restraint which should operate on an appellate court in substituting a sentence on a successful Crown appeal, I consider that the starting point for each of these two incursions into offending should be four years imprisonment. That is to say, a notional term of four years imprisonment should be imposed in respect of the offence committed on 10 January 2003, and a notional sentence of four years imprisonment should be imposed in respect of the offences committed on 5 and 6 March 2003. As there were two separate incursions into offending, it would appropriate, if separate sentences were being imposed, to order that they be served consecutively. Thus, the starting point for a single sentence would be eight years imprisonment.
This starting point should be reduced to six years on account of the respondent’s plea of guilty and his contrition. I would therefore fix, pursuant to s 18A of the Criminal Law (Sentencing) Act, a head sentence of six years imprisonment in lieu of the three years imprisonment imposed by the sentencing Judge. That head sentence should commence on the same day as that fixed by the sentencing Judge, viz., 8 May 2003.
I consider that the increase in the head sentence means that there should also be an increase in the non-parole period. However, a number of factors suggest that that increase should be moderate only. The non-parole period of 18 months fixed by the sentencing Judge will expire very soon, viz., on 8 November 2004. But for this appeal, the respondent could have expected to have been released from prison on, or very soon after, 8 November 2004. It would be crushing, at this advanced stage of the non-parole period, to extend significantly the time which he must spend in custody. That factor operates as an additional reason for restraint in the circumstance of this successful DPP appeal.
The respondent’s good prospects for successful rehabilitation, as found by the sentencing Judge, are also relevant here. Those prospects are likely to be enhanced if the respondent is permitted to serve a substantial portion of his sentence in the community.
In all these circumstances, I would fix a non-parole period of 27 months, an increase of nine months on that fixed by the sentencing Judge. That non-parole period is to commence on 8 May 2003.
Conclusion
I would grant the application for leave to appeal and would allow the appeal. I would set aside the sentence of three years imprisonment imposed by the sentencing Judge and the non-parole period of 18 months fixed by him. I would substitute a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act, of six years imprisonment. I would fix a non-parole period of 27 months. Both the head sentence and the non-parole period should commence from 8 May 2003.