R v Burns - [2013] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BURNS
[2013] SASCFC 20
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice Peek and The Honourable Justice Nicholson)
3 April 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
The appellant was charged with one count of aggravated robbery pursuant to s 137 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of aggravated intentionally causing serious harm pursuant to s 23 of the CLCA - the appellant pleaded guilty to the former charge and as a consequence the Director of Public Prosecutions discontinued the latter charge - the sentencing judge imposed a period of 9 years imprisonment with a non-parole period of 6 years - the appellant appeals against his sentence - whether there was a miscarriage of justice because of the appellant's suggested inadequate representation - whether the head sentence and non-parole period are manifestly excessive in all the circumstances.
Held: Appeal allowed - the sentencing judge sentenced on a version of events submitted by defence counsel - counsel did not adequately put the appellant's position to the sentencing judge - sentence manifestly excessive - sentence set aside - the appellant is re-sentenced to a head sentence of 6 years and 9 months and a non-parole period of 4 years and 6 months.
Criminal Law Consolidation Act 1935 (SA) s 23 and s 137, referred to.
R v Place (2002) 81 SASR 395; R v Schultz [2010] SASCFC 47; R v Harradine [2012] SASCFC 103, considered.

R v BURNS
[2013] SASCFC 20
Court of Criminal Appeal: Anderson, Peek and Nicholson JJ
ANDERSON J.
Introduction

The appellant was charged with two offences, namely one count of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act, 1935 (SA) and one count of aggravated intentionally causing serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935. On 17 June 2011 the appellant pleaded guilty to the aggravated robbery charge in the Adelaide Magistrates Court. As a consequence of the appellant’s plea, the Director of Public Prosecutions discontinued the proceedings relating to the aggravated intentionally causing serious harm charge.
The appellant was sentenced in the District Court on 23 September 2011. He was sentenced to a period of 9 years imprisonment, reduced from 12 years on account of the plea of guilty, with a non-parole period of 6 years commencing from 6 February 2011 when he was taken into custody in New South Wales for extradition to South Australia.
The appellant appeals against his sentence. His grounds of appeal relate to a suggested inadequate representation at the time of the sentencing submissions and whether this caused a miscarriage of justice and secondly, whether the head sentence and non-parole period is manifestly excessive in all the circumstances.
Mr Boucaut SC for the appellant sought leave of the Court during the appeal to amend a ground of appeal. The proposed amended ground of appeal was as follows:
The head sentence and non-parole period fixed was manifestly excessive in all the circumstances.
The Court allowed the amendment for the purposes of the appeal hearing and proceeded to hear the matter as if permission had been granted. I will deal with this later in my reasons.
Background
On 6 January 2011, the appellant entered the Willunga Post Office armed with a hammer which was concealed. He told the manager of the post office that he was waiting for a money order. The manager conveyed to the appellant that the money order may not have been transmitted. Consequently, the appellant produced a gyprock fixer’s hammer from a bag. It was described by Mr Boucaut as a hammer with a sharp edge on one side. The appellant then jumped on the front counter, demanding money. The appellant then reached into the till and stole a handful of $10 notes from the till. The manager attempted to push the appellant off the front counter but was hit by the appellant on the side of his head with the hammer. The appellant then fled the scene.
This blow to the victim’s head caused a fractured skull and underlying injuries to his brain which needed surgery. The sentencing judge said in his sentencing remarks:
Your victim suffered profound physical, neurological and psychological after effects as a result of what you did. His quality of life has been significantly diminished and his immediate family have also suffered significant psychological fall-out as a result of what you did.
The parties have exchanged information and have agreed on the current condition of the victim as follows:
·    Mr Rumbelow is no longer taking medication.
·    He received a clearance from his medical practitioner and is now able to drive again.
·    Physically he has made a full recovery. However there remains the possibility that he could suffer from seizures in the future as a consequence of sustaining a head injury.
·    The post office business he operates is now on the market for sale and one of the reasons for the sale is this offence and fears of being a victim of another robbery.
The appellant is 40 years old and has led a dysfunctional life which resulted in him having difficulties with alcohol and drugs from a young age. At the time of this offending the appellant had been on drugs including ice, amphetamines and heroin for a number of weeks and decided to rob the post office to fund his drug addiction.
The appellant was interviewed by South Australian Police on 11 February 2011. In this interview he stated that he did not intend to hit the victim as he was only trying to get him to back off. I outline the following extracts from the interview outlining the appellant’s version of what he did:
The gentleman approached me tried to force me off the counter where I had the hammer in my hand and swung the hammer not knowing that I actually have hurt the person then I jumped off the counter and ran out of the post office.
….
Once I was on the counter and … when he approached me that’s when I raised the hammer and I reached out and grabbed a handful of notes he tried to grab my legs and I sought of lunged forward with the hammer not knowing that I had actually connected with the post office worker.
…
Just to wave him back basically just to say back off.
The appellant appeared unrepresented before a judge for permission to appeal on 5 November 2012. He told the court on that occasion that:
There was no intention of hurting anyone. I’m not that sort of person. It was an accident. Mr Rumbelow, I think I swung the hammer and said “back away” whilst trying to pull some money out of the cash register and at the same time Mr Rumbelow tried to push me, and as I swung to say “Go away” he has come forward and it hit him on the head, your Honour.
Mr Balfour, a specialist psychologist, described the appellant’s lifestyle shortly before the offences as follows:
At the time of the current offences, Mr Burns was leading a transient lifestyle in the community. He had been living in a tent at the McLaren Vale Caravan Park for three weeks. Six weeks earlier, he had moved from Sydney to Adelaide. His father had given him $500. He had squandered his Newstart Allowance and his father’s money on gambling and drugs. He said that at the time of the current offences, he had a heavy addiction to ice, amphetamine, and heroin. He said that due to using ice, he had not slept for three weeks prior to the current offences. He has a fragmented memory of what happened. He also had a gambling problem at the time of the current offences.
Mr Balfour described the appellant as a ‘man with an intellectual disability who has an entrenched history of alcohol and poly-drug abuse problems and has become socially dislocated”.
The appellant’s criminal history commenced when he was 22 years of age. In 1994 he was convicted of break, enter and steal when he robbed a pizza delivery driver using a club lock as a weapon and entered a bond of $250 to be of good behaviour for two years. In 1997 the appellant was convicted of aggravated robbery for snatching money from a person withdrawing money from an ATM. He was sentenced to 500 hours of community service. The offence was aggravated because during the course of the scuffle the victim fell down and suffered a knee injury. In 1998 he was convicted of robbery. He was sentenced to 6 months imprisonment. In 2001 the appellant was sentenced to 12 months imprisonment with a non-parole period of 8 months for numerous robbery offences. In 2002 he was convicted of larceny and taking a vehicle without the owner’s consent. He received a suspended sentence on this occasion and entered into a bond to be of good behaviour for 6 months on each count. The offences described above were committed and dealt with in New South Wales.
In 2008 the appellant was convicted in South Australia for providing false or misleading information. He entered into a bond of $1,000 to be of good behaviour for 12 months with conditions and supervision. In 2009 the appellant head-butted a co-worker and was placed on a bond of $500 to be of good behaviour for 12 months. The appellant was found guilty of this assault but no conviction was recorded.
Arguments on Appeal
Mr Boucaut submitted that the appellant’s position was not adequately put before the sentencing judge in the course of the sentencing submissions. He said that counsel for the appellant, although acknowledging the seriousness of the offence, did not address the issue of how the blow to the victim’s head with the hammer came to be struck and whether it was intentional. He submitted that what occurred when the appellant swung the hammer was unintentional and that was not made clear to the sentencing judge.
Mr Boucaut submitted that counsel during the sentencing submissions was put on notice by the sentencing judge of his attitude towards the offending when the judge described the offence as being violent and vicious. Mr Boucaut submitted that it is obvious from the sentencing remarks that he was sentencing on the basis of a deliberate hit to the head with the hammer. Mr Boucaut maintained that this was never and is not now the appellant’s position.
Although Mr Boucaut concedes that the sentencing judge had the appellant’s record of interview and also stated in his sentencing remarks that he had taken into account everything that has been said and written on behalf of the appellant, he submitted that there is nothing to indicate that the sentencing judge read the interview.
Mr Boucaut further argued that counsel did not adequately explain to the sentencing judge the previous convictions of the appellant that are set out in Mr Balfour’s report. The appellant’s previous convictions for robbery were in 1997 and 1998 when the appellant was 25 and 26 years old respectively. These were aggravated robberies. I have already described these above. Mr Boucaut submitted that the appellant’s previous offences were committed when he was deeply in the throes of a drug addiction and his behaviour was simply to gain money to feed his drug habit.
Mr Boucaut submitted that counsel made no reference to the nature of this prior offending. He submitted that counsel’s omission to make submissions as to the appellant’s intentions has led to the sentencing judge sentencing on an incorrect premise. He also emphasised counsel’s failure to adequately explain to the sentencing judge the context and the circumstances of the previous offences appearing in the antecedent history.
Mr Boucaut submitted that the sentence in any event is manifestly excessive. He argued that the starting point for “soft target” robberies, by reference to R v Place (2002) 81 SASR 395, is between 6 and 8 years. Mr Boucaut submitted that a starting point of 12 years is excessive.
Mr Boucaut pointed to two cases, namely R v Schultz [2010] SASCFC 47 and R v Harradine [2012] SASCFC 103, where he submitted that the court went below 6 to 8 years as a starting point.
Mr Boucaut argued that even with the action of waving the hammer and unintentionally injuring the victim, one would have expected a starting point less than or, at the very least, at the lower end of the scale discussed in Place.
Mr Boucaut emphasised that notwithstanding the appellant’s drug addiction, his alcoholism, his past history and taking into consideration Mr Balfour’s report, the appellant is a person who can stay on the straight and narrow for periods of time and can lead a productive life and there is no reason why this could not occur in the future.
Mr Boucaut, whilst accepting that each individual case must be decided on its own facts and that it is not always useful to compare cases, referred to R v Randall-Smith (2008) 100 SASR 326 where there were multiple well planned robberies. In that case the head sentence was 16 years imprisonment. Mr Boucaut argued that when one compares this to the case at bar where the appellant is a “desperate, borderline intellectually retarded, drug addicted person” using his words, the starting point of 12 years “is just too high”. Mr Boucaut submitted that if the sentencing judge started at a higher point, possibly around the 15 year mark, and then gave a discount for the appellant’s difficulties and problems it would be excessive.
Ms Ingleton for the DPP conceded that the starting point of 12 years was certainly at the top end of the range of penalties for this type of offence. However, she argued that this Court should only intervene if an error can be identified in the sentencing judge’s sentencing process. She submitted that, although she makes the concession concerning the penalty being at the top end of the range, the offence involved not only the threat and the production of a weapon but an injury sustained by the victim. Ms Ingleton argued that this must be weighed appropriately when arriving at the head sentence, taking into consideration the discount for the guilty plea. She further emphasised that there were a number of serious aspects to the appellant’s offending, namely the pre-planning, waiting in the post office for a false purpose and the production of the hammer.
Although Ms Ingleton agrees that the submissions of counsel during the sentencing submissions were extremely brief, she submitted that the sentencing judge is a very experienced judge who had all the relevant material before him namely, the declarations including the transcript of the record of interview and a comprehensive report from Mr Balfour. She submitted that in His Honour’s sentencing remarks he makes it plain that he took into account everything that has been written and said about the appellant. She pointed to the sentencing remarks where His Honour says:
You cooperated with the investigating police officers. You are remorseful and you have a reasonable degree of insight into your conduct.
Ms Ingleton submitted that this demonstrated that His Honour had regard to all the information provided and took into account the record of interview where the appellant made full admissions and explained his conduct. She noted that His Honour would not have made such a remark if he had not properly considered the material.
Mr Boucaut submitted in reply that these sentencing remarks by His Honour are merely a repetition of what counsel said during sentencing submissions and do not indicate that His Honour appropriately took into account all the material provided to him. He pointed to the transcript of the sentencing submissions where counsel said:
In his record of interview, he shows remorse, sorrow and insight.
Ms Ingleton submitted that the standard in R v Place is a starting point for the “standard” aggravated robbery on a “soft target”. She argued that this is not an inflexible standard. She pointed out that that court emphasised the need to not only consider the individual circumstances of each offence but also the individual circumstances of each offender. Ms Ingleton submitted that there is no error demonstrated by the sentencing judge in exceeding the 8 years as a starting point. She said it was appropriate for the sentencing judge not only to take into account the aggravated robbery but also the impact upon which it had on the victim, which in this case, was a serious injury. Ms Ingleton submitted that it was of little importance whether or not the appellant intended to cause that injury because he clearly intended to swing the hammer at the victim.
Consideration
In my view there is merit in Mr Boucaut’s submission that the judge has sentenced on the basis of the view expressed by him during submissions, namely, that the offending was violent and vicious. The appellant’s contention is that the appellant’s statements that the blow with the hammer was not intentional and were not put to the judge is an important omission. It may have characterised the offending differently in the mind of the judge if submissions had been made to that effect. Counsel should have put that submission to the judge based on his instructions assuming they were consistent with the version given by the appellant to the police.
It is also the case in my view that the starting point of 12 years for the head sentence is too high. R v Place is relevant in setting a benchmark for this type of offending, although each case must be considered on its own individual merits. This was a very serious example of the offence of aggravated robbery with very serious consequences for the victim. Nevertheless, given the circumstances of the offending and the manner in which the injury came about, the offence was not such as to warrant a 50% uplift to the higher end of the range discussed in Place. The resultant head sentence of 9 years after discount for the plea of guilty was manifestly excessive.
There is no criticism of the proportion which the non-parole period bears to the head sentence. In my view the appeal should be allowed and the appellant re-sentenced.
Conclusion
I would start with 9 years for the head sentence. Reducing that, for the plea of guilty, in the same proportion as used by the judge brings the head sentence down to 6 years and 9 months. Then further reducing that by one-third, again using the same proportion as the judge, I would fix the non-parole period at 4 years and 6 months.
PEEK J. I agree with the orders proposed by Anderson J and with his reasons.
NICHOLSON J: I agree that the appeal should be allowed for the reasons given by Anderson J.