R v Burns

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. Mr…

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AGLC
R v Burns [2013] SASCFC 20
Case
[2013] SASCFC 20
Decision Date

CaseChat Overview and Summary

The appeal in *R v Burns* concerned a challenge to the sentence imposed on the appellant for aggravated robbery. The appellant had pleaded guilty to this charge, and a further charge of aggravated intentionally causing serious harm was discontinued. The sentencing judge imposed a head sentence of nine years imprisonment with a non-parole period of six years. The appellant appealed against this sentence, arguing that his representation had been inadequate and that the sentence was manifestly excessive.

The primary legal issues before the court were whether there had been a miscarriage of justice due to inadequate legal representation and whether the head sentence and non-parole period were manifestly excessive in the circumstances of the offending. The court was required to consider the appellant's version of events, particularly regarding the intent behind the injury caused to the victim, and to assess whether this had been adequately put before the sentencing judge.

The Court of Appeal found merit in the appellant's submissions. It was held that the sentencing judge had proceeded on a version of events that did not adequately reflect the appellant's position, specifically that the blow with the hammer was not intentional. The court determined that counsel had failed to adequately put the appellant's instructions to the sentencing judge, which may have characterised the offending differently. Furthermore, the court considered the starting point of 12 years for the head sentence to be too high, even acknowledging the seriousness of the offence and its consequences for the victim. Applying the principles from *R v Place*, which provides a benchmark for aggravated robbery, the court concluded that the resultant head sentence of nine years, even after a discount for the guilty plea, was manifestly excessive.

Consequently, the appeal was allowed. The original sentence was set aside, and the appellant was re-sentenced. The court imposed a new head sentence of six years and nine months imprisonment, with a non-parole period of four years and six months. The court found no criticism of the proportion between the head sentence and the non-parole period.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J PEEK J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, PEEK J

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. 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.