R v Brant - [2018] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRANT
[2018] SASCFC 72
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
5 July 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Appeal against a single sentence of imprisonment imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in the District Court on the appellant’s convictions for the offences of serious criminal trespass (non-aggravated) and theft, and attempted robbery (non-aggravated).
The Judge imposed a sentence of one year, four months and one week for the trespass and theft offences, and two years, nine months and three weeks for the attempted robbery. The Judge ordered that six months be served concurrently.
Held, per Kourakis CJ (Kelly and Blue JJ agreeing), allowing the appeal:
1.     The Judge’s misapprehension that the robbery was attended by an aggravating feature is significant in this case because, properly characterised, the offending was a relatively less serious example of a simple robbery from a retail store (at [7]).
2.     The misdescription of the attempted robbery offence as an aggravated one is an error (at [33]).   The Judge mistakenly treated the offence as a graver offence of robbery than it in fact was (at [33]).
3.     The sentence for attempted robbery must be set aside and the appellant resentenced in accordance with the orders of this Court (at [35]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 134, s 137, referred to.
R v Delphin (2001) 79 SASR 429; R v Gannon (2012) 113 SASR 1, applied.
R v Horstmann [2010] SASC 103, not followed.
R v Blackmore [2004] SASC 298; R v Van Huizen Unreported, Court of Criminal Appeal SA, No 304 of 1989, 23 February 1990; R v Betts [2011] SASCFC 27; R v McGlynn [2011] SASCFC 74; R v Lutze (2014) 121 SASR 144, discussed.

R v BRANT
[2018] SASCFC 72
Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ

KOURAKIS CJ: This is an appeal against a single sentence of imprisonment imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) in the District Court on the appellant’s convictions for the offences of:
·serious criminal trespass (non-aggravated) on a Wynn Vale home and theft of property therefrom to the value of $4,979 on the evening of 25 January 2017; and
·attempted robbery of a gold bracelet (non-aggravated) valued at almost $18,000, committed against an employee of the Shiels Jewellers store in Regent Arcade on 27 January 2017.
The Judge imposed a sentence of one year, four months and one week for the trespass and theft offences, and two years, nine months and three weeks for the attempted robbery. He ordered that six months of the sentences be served concurrently. Therefore, the total head sentence was three years and eight months imprisonment, with a non-parole period of two years and five months, both to commence on 11 October 2017.
The appellant appeals on the following grounds:
1. the sentence is manifestly excessive;
2.the learned sentencing Judge erred in describing the attempted robbery as one which was ‘aggravated’ by the appellant’s use of force/violence;
3.the learned sentencing Judge erred in not specifying the sentence reductions he applied by reason of the appellant’s pleas of guilty; and
4.the learned sentencing Judge erred by starting the sentence on 11 October 2017.
Although ground 4 is contained in the amended notice of appeal, that ground was not pressed during the appeal proper.
In relation to ground 2, counsel for the Director of Public Prosecutions (the Director) accepts that the Judge erroneously described the robbery offence as an aggravated offence but contends that, because the Judge correctly referred to the maximum penalty for a non-aggravated offence, the misdescription is immaterial and not an error.
The issue therefore is whether the Judge’s sentencing remarks, read as a whole, reveal no more than an inadvertent, semantic error or whether they disclose a misapprehension of the gravity of the offending.
The dichotomy between aggravated and non-aggravated offences established by the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and the imposition of higher maximum penalties for the former, is not arbitrary. The dichotomy is based on the presence of a feature which, it is generally accepted, makes the offending more serious than other offending of its kind. Plainly enough, the Judge correctly identified the maximum penalty. However, the Judge’s repeated reference to the offence being an aggravated one must be taken at face value, demonstrating that the Judge proceeded on the basis that the offence was attended by an aggravating feature which called for a higher penalty than the offence of attempted robbery may have warranted. The Judge’s misapprehension that the robbery was attended by an aggravating feature is significant in this case because, properly characterised, the offending was a relatively less serious example of a simple robbery from a retail store. The Judge found that the appellant had initially intended to steal the bracelet after it had been handed to him but, only at the last moment, attempted to snatch it from the store attendant’s hand.
I would therefore allow the appeal on ground 2.
In relation to ground 1 of the appeal, the applicable reduction for the appellant’s guilty plea was not in issue. The Director did not contend or advance before the sentencing Judge any reason why anything substantially less than the maximum reduction should be applied. That circumstance, together with the circumstance that the sentences were ultimately imposed in the terms of years, months and days, shows that the Judge arrived at the sentence by applying the maximum reduction to his starting point.
In relation to ground 3 of the appeal, even though the sentence imposed by the Judge for the attempted robbery was not manifestly excessive, I would impose a lesser sentence for the reasons as elaborated upon below.
The offences
On the evening of 25 January 2017 the appellant broke into a residence at Wynn Vale and stole personal electronic equipment, jewellery and cash to the value of $3,979. The appellant caused damage to a window during the break in, estimated at $1,000. The appellant was identified as the offender some five months later after blood left on a pillow protector was tested for DNA. None of the stolen property was recovered.
On 27 January 2017, two days after the break-in at Wynn Vale, at about 1.00 pm, the appellant visited the Shiels jewellery store in Regent Arcade and asked to inspect a gold bracelet valued at almost $18,000. The store assistant smelt alcohol on his breath. Suspecting that the appellant was not genuine, she did not hand the bracelet to him over the counter. Instead she walked to a gap in the counter to allow for a closer inspection of the bracelet. The appellant, anxious to snatch the bracelet whilst he could, tried to prise it from her hands. The shop assistant pushed the appellant away with her free hand and managed to keep hold of the bracelet in her other hand as she fell backwards. Another staff member and customer also intervened. The appellant managed to escape from the store and ran into Rundle Mall, but was brought to the ground by a passer‑by and then arrested by police.
In sentencing submissions the appellant claimed that he was intoxicated at the time of breaking into the Wynn Vale premises. The Judge was informed that the appellant attempted to steal the bracelet to discharge a drug debt estimated to be about $5,000, owed by his niece, whom he helped raise and was particularly fond of.
The appellant was 38 years of age at the time of sentencing. He left school in year 10 at 15 years of age and has worked as a manual labourer and trades assistant since that time. The appellant has abused alcohol and has suffered depression since the age of 18. He has lost a number of jobs because of his alcoholism. His hope for the future is to procure an apprenticeship as an electrician. The appellant’s long criminal history commenced when he was 17 years of age and includes dishonesty, violence and public order offending. More recently, the appellant was sentenced to imprisonment for one year and five months with a non‑parole period of four months for the offence of aggravated robbery and other offences in 2012. The appellant has also recently been imprisoned for theft and on the revocation of a suspended sentence.
The sentencing remarks
The Judge, in the opening passages of his sentencing remarks, referred to the appellant having pleaded guilty to ‘aggravated attempted robbery and theft’ and said that ‘the robbery is aggravated by your use of force’.
As I have already observed, the appellant pleaded guilty and stood to be sentenced for a non-aggravated offence of attempted robbery. Moreover, the use of force is an element of the basic offence of robbery and is generally what distinguishes it from theft. Nonetheless, in those same passages the Judge correctly referred to the maximum penalty of ten years’ imprisonment for the basic offence of attempted robbery. Moreover, when describing the factual circumstances of the offence, the Judge referred to it as an attempted robbery, making no reference to any circumstance of aggravation.
The Judge then referred to the offence as ‘aggravated’ when noting the sentence reductions to which the appellant was entitled for his plea of guilty. His Honour made the reference as follows:
Upon turning to sentence I note that you are entitled to a discount of up to 30% for the aggravated robbery offence and up to 40% for the offences of serious criminal trespass and theft. …
The Judge then accepted that the appellant had initially intended to steal the bracelet without using force. The Judge also accepted that the offence ‘was at the lower end of the scale for offences of this type’. Unfortunately that observation is ambiguous and may still be a reference to aggravated offences.
When finally announcing the sentence for the attempted robbery offence, the Judge again described it as an offence of aggravated robbery and explained that the term of two years, nine months and three weeks was imposed ‘after the application of the discount’.
In turning to sentencing for the serious criminal trespass and theft offences, the Judge referred to the ‘tariff’ of between 20 to 24 months for a first offence of the offence of serious criminal trespass, as identified by this Court in R v Delphin.[1] After noting that the appellant was not ‘a first offender’, the Judge continued:
As for the offences of serious criminal trespass and theft I propose to use s.18A of the Sentencing Act and impose a single a sentence. The sentence imposed for these offences is a term of imprisonment of one year, four months and one week after the entitled reduction and discount.
…
[1] R v Delphin (2001) 79 SASR 429.
However the Judge took the view that there should be partial concurrency, to the extent of six months, between the sentence imposed for the attempted robbery and the single sentence imposed for the serious criminal trespass and theft. Accordingly, the total term of the two head sentences was three years and eight months imprisonment. The Judge fixed a non-parole period of two years and five months commencing on 11 October 2017.
The Judge declined to exercise his discretion to suspend the sentence or to order that the sentence be served on home detention. There is no complaint about the latter aspects of the Judge’s sentence.
Failure to specify guilty plea reductions (Ground 3)
If the maximum discount to which the appellant was entitled is applied to the sentence imposed by the Judge for the attempted robbery offence, it is apparent that the Judge commenced with a starting point of about four years. Theoretically it is possible that the Judge commenced with a much lower starting point and, for reasons which he did not explain, reduced it by less than 30 per cent. However, that is unlikely in this case because the prosecutor did not advance any reason to reduce the sentence by less than 30 per cent.
Working on the basis of a 40 per cent reduction of the sentence imposed for serious criminal trespass and theft, the Judge’s apparent starting point is about 27 months. Having regard to the tariff in Delphin, being 20-24 months, that starting point is generous. Again, the Judge may, without good reason, have reduced the sentences by less than 30 per cent for the guilty plea. However, it is most unlikely, as that starting point would be so substantially below the Delphin tariff to which the judge referred.
I acknowledge the often repeated observations of this Court that it is desirable for sentencing judges to expressly identify the starting point and the percentage reduction applied when imposing a sentence following a plea of guilty. However, in the particular circumstances of this case, there is no reason to apprehend any error in the reductions applied by the Judge.
I would therefore dismiss the appeal on ground 3.
Manifestly excessive (Ground 1)
The sentence imposed on the appellant, who has a sizeable criminal record, for the serious criminal trespass and theft offences, is only marginally higher than the tariff, or general sentencing regime, as identified in Delphin. It is not manifestly excessive.
In R v Gannon[2] I considered the rationalisation of the common law in respect of robbery by s 137 of the CLCA. Simple robbery is the taking of property from the person which may be effected with or without violence. It is most common that violence is used at some point in the course of a robbery. Historically, s 155 of the CLCA provided for a maximum penalty of 14 years imprisonment for the offence of simple robbery. On the other hand, s 158 of the CLCA provided for a maximum penalty of life imprisonment for any person who, being armed:
·robs, or assaults with intent to rob (armed robbery); or
·who together with others robs, or assaults with intent to rob (robbery in company); or
·who robs any person and at the time of or immediately before or immediately after wounds, beats, strikes or uses any other personal violence (robbery with violence).
[2] (2012) 113 SASR 1.
Section 137 of the CLCA, in its currently applicable form, delineates between basic and aggravated offences. It fixes a maximum penalty of 15 years for simple robbery and robbery with violence offences, but retains a maximum of life imprisonment for armed robbery and robbery in company.
In Gannon, after reviewing the cases of R v Blackmore,[3] R v Van Huizen,[4] R v Betts[5] and R v McGlynn,[6] I concluded that the starting point for robberies from retail premises, or from individuals, either without violence or with some violence, but not involving a weapon, was generally four years.
[3] [2004] SASC 298.
[4] Unreported, Court of Criminal Appeal, SA, per King CJ, Prior and Duggan JJ, No 304 of 1989, 23 February 1990.
[5] [2011] SASCFC 27.
[6] [2011] SASCFC 74.
With respect to distinctions between completed offences and attempted offences and the value of the property, I observed:[7]
In my view the lower maximum penalty for an attempt is not particularly significant in the case of attempted robbery. The essential culpability of the offence of robbery lies in the use of violence for the purpose of theft. Whether or not the offending results in the taking of property may to some extent be fortuitous. Certainly, the maximum penalty for an attempted offence of basic robbery cannot exceed 10 years but it would, in my view, be appropriate in fixing a sentence for attempted robbery to have regard to both the maximum penalty for the attempt and the maximum penalty which would have governed the offence if it had been completed. In some cases there will be little reason to differentiate significantly between robberies depending on whether any property was taken, or by reference to the value of the property which was taken. Nonetheless, offences in which property of great value is, or could potentially have been, taken will generally demand higher sentences.
[7] R v Gannon (2012) 113 SASR 1 at [26].
It is difficult therefore to characterise the starting point of four years selected by the Judge as manifestly excessive. Certainly, the single sentence imposed for both offences pursuant to s 18A of the Sentencing Act is not manifestly excessive, having regard to the relatively lenient component attributed to the serious criminal trespass offence and to the degree of concurrency allowed by the Judge, the length being six months.
Misdescription of the offence (Ground 2)
I have found this complaint more difficult to resolve. Notwithstanding the Judge’s reference to the correct maximum penalty, I am satisfied that the misdescription of the attempted robbery offence as an aggravated one is an error.

The repeated description of the offence as an aggravated one can only be understood as stating a sentencing premise that the force used in attempting to prise the bracelet from the hand of the store attendant was an aggravating feature which made this offence a more serious instance of offences of its kind. However, the force used in pulling at the bracelet is at the very lower end of the scale of violence against the person, which might ordinarily be used to effect a robbery, contrary to s 137 of the CLCA, or historically, as discussed it [28]. Moreover the appellant had, until the last moment, intended to commit no more than a theft by running off with the bracelet after the shop assistant handed it to him. A theft committed in that way, for example, by simply snatching a bracelet from a retail assistant’s open hand, or from a jewellery box presented to a customer, was, historically, treated as larceny from the person, but is now a simple theft contrary to s 134 of the CLCA. In those circumstances, I am persuaded that the Judge has mistakenly treated the offence as a graver offence of robbery than it in fact was. I would therefore allow the appeal on ground 2.
Counsel for the Director submitted that even if the mischaracterisation was an error, this Court should not interfere with the sentence unless it was also manifestly excessive or was otherwise a miscarriage of justice. In making this submission, counsel for the Director relied on a passage in the judgment of Gray J in R v Horstmann.[8]Insofar as that passage suggest that a failure to have regard to a relevant consideration, or having regard to an irrelevant consideration, are not errors which vitiate the sentencing discretion, it is plainly wrong. [9] It is difficult to understand what is meant by a miscarriage of justice in the context of an appeal against sentence. If it means a failure to attend only to relevant sentencing matters, then the passage is no more than a repetition of the well-established principles of appellant intervention in sentencing appeals. It should be so understood.
[8] [2010] SASC 103 at [16].
[9] R v Lutze (2014) 121 SASR 144.
Resentencing and conclusion
For the reasons just given, the sentence for the attempted robbery must be set aside and the appellant resentenced. The offence was conceived by an alcoholic as a theft, but in its botched execution became a robbery. The attempt to wrest control of the bracelet is at the very low end of the scale of violence by which robberies are commonly effected. I would commence with a starting point of three years and four months. I would reduce the sentence by 40 per cent for the appellant’s early guilty plea. I would sentence the appellant to imprisonment for two years. There is insufficient reason to make any part of that sentence concurrent with the sentences imposed for the serious criminal trespass and theft offences. The attempted robbery was quite different in nature and committed several days later. I would therefore order that the sentence for the attempted robbery be served cumulatively. I would fix a non-parole period of two years and two months to commence on 11 October 2017.
Orders
1.Appeal allowed on ground 2.
2.Set aside the head sentence of two years nine months and three weeks imprisonment imposed on the conviction for attempted robbery and set aside the non-parole period of two years and five months.
3.Order instead that the appellant be resentenced on his conviction for attempted robbery to a term of 24 months imprisonment to be served cumulatively on the sentence of one year four months and one week for the serious criminal trespass and theft offences and fix a non-parole period of two years and two months, to commence on 11 October 2017.

KELLY J: I agree with the reasons of the Chief Justice.
BLUE J: I agree with the Chief Justice and his reasons.