R v C, LM - [2008] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, LM
[2008] SASC 101
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
23 April 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
Appeal against sentence - appellant sentenced after pleading guilty to two counts of aggravated robbery and wounding with intent to do grievous bodily harm - appellant was 17 years old at the time of the offences - at time of sentence appellant had recently finished serving a period of detention for offences committed within days of the current offences - whether sentencing judge considered the totality principle - whether appropriate weight given to appellant's subservient role in the offences and rehabilitation prospects.
Held: appeal allowed - sentence set aside and fresh sentence imposed.
Young Offenders Act 1993 (SA), s 3, s 41; Criminal Law (Sentencing) Act 1988 (SA), s 10, referred to.
Mill v The Queen (1988) 166 CLR 59; R v QTV (2003) 87 SASR 378; R v Suckling (1983) 33 SASR 144; R v Todd [1982] 2 NSWLR 517, applied.
Postiglione v The Queen (1996) 189 CLR 295, discussed.

R v C, LM
[2008] SASC 101

DOYLE CJ: I agree with the orders proposed by Vanstone J and with her reasons. There is nothing that I wish to add.
DUGGAN J. I would allow the appeal. I agree with the orders proposed by Vanstone J and the reasons prepared by her.
VANSTONE J: On 12 May 2006 the appellant committed two crimes of aggravated robbery and another of wounding with intent to do grievous bodily harm. He was then aged 17 years and 8 months. He was arrested on the same date and has been in custody ever since. The appellant pleaded guilty to the charges in the District Court and was sentenced, as an adult, to one penalty, being six years imprisonment with a non-parole period of four years.
The sentence was “backdated” so that it commenced at the expiration of a period of detention imposed in the Youth Court for three aggravated robberies in company, committed earlier in May 2006. That offending also resulted in estreatment of a bond associated with a suspended two-month detention order imposed for serious criminal trespass and thefts. The accumulation of the three penalties will mean that the effective head sentence becomes seven years five months, and at the expiration of his non-parole period, the appellant will have served five years and five months in custody.
He appeals to this Court, with permission, on grounds alleging that the sentence and non-parole period are manifestly excessive. In particular it is put that insufficient regard was had to his subservient role in the offences – as a principal in the second degree only – to his contrition and progress towards rehabilitation and to the totality principle, as applied to the total period to be served.
Background
The offences committed by the appellant were grave indeed. Each was committed in company with a 19 year old man whom I shall call “G”. The first offence took place in Grote Street, Adelaide, in the early hours of the morning. The victim was a young Japanese student. He had spent the evening studying at the University of Adelaide and was returning home. The appellant and G approached him in a dark stretch of Grote Street, the appellant blocking his way and G pushing a knife against his neck. He was made to walk behind a building where his wallet, bag, telephone, ipod and other items were taken from him. The value of the property approached $2,000. During the incident the victim was stabbed and kicked by G. Both the appellant and G were convicted of aggravated robbery, but the prosecution also proceeded with a charge of wounding with intent to do grievous bodily harm against G. The victim was seriously injured. He required surgery in relation to multiple stab wounds. Not surprisingly the victim’s life in Australia has been severely disrupted. His family came from Japan to be with him. He has suffered ongoing effects from his experience.
About half an hour later the appellant and G robbed a man who was sleeping in his car on War Memorial Drive, Adelaide. Again G inflicted serious wounds upon the victim, including two to the chest and one to the abdomen. Again the victim required emergency surgery. The sentencing judge described the stabbing as “savage”. It occurred notwithstanding the victim’s co-operation in handing over his wallet. The incident has had profound effects upon the victim, both physical and psychological. His victim impact statement records that he no longer feels safe in his home or outdoors and he has suffered high levels of depression, as well as lethargy. He feels he no longer lives a normal life.
While the appellant’s involvement in the offences was secondary to that of G, his role was still an important one. In each case his presence meant that the victims were outnumbered and he took charge of the stolen property.
The three offences of aggravated robbery in company, which the appellant had committed several days earlier, were also in the company of G, as well as others. Those offences occurred on two separate occasions. One involved lying in wait at a railway station late at night for a lone passenger to leave the train and the other two offences were committed on two young men who were walking in a street in Warradale in the evening. As I mentioned, those offences were in breach of a suspended detention order of two months imposed in respect of a serious criminal trespass offence committed in August 2005. The appellant’s only other appearance before the Youth Court was earlier in 2005 and did not result in a conviction.
The arguments on appeal
Counsel for the appellant, Mr Muscat, pointed to the fact that the six serious offences for which the appellant had been convicted occurred over a very short period of time, being a matter of days, and in the company of G, to whom the sentencing judge referred as “the ringleader”. Mr Muscat submitted that this fact, combined with a social background report recording very positive progress made by the appellant whilst in custody at the Cavan Training Centre, indicated that the prospects of the appellant’s rehabilitation were very good. Although Mr Balfour, psychologist, furnished the opinion that the appellant’s prognosis in terms of re-offending was “fair to poor”, he also pointed to a number of factors which were in the appellant’s favour. They included his youth, the steps already taken towards rehabilitation and the enforced withdrawal from drugs during his time in custody. Mr Muscat submitted that the head sentence and non-parole period imposed in respect of the three offences dealt with in the District Court were, of themselves, manifestly excessive, having regard to the various factors I have mentioned.
However, Mr Muscat’s principal argument upon the appeal was that no, or insufficient, regard was had to the fact that the appellant had already served a substantial period in custody. Counsel observed that the judge had made no reference to having considered the principle of totality. He also pointed to two particular features of the history of the appellant’s incarceration. The first was that because the Youth Court judge had chosen to take a period of six months on remand into account in his sentence, as opposed to “backdating” the sentence, the date at which the appellant would have become eligible for conditional release had been delayed. Under s 41 Young Offenders Act 1993 a youth becomes eligible for consideration for conditional release after having served two-thirds of his sentence of detention in a training centre. In addition, when the two-thirds mark was reached (on 26 June 2007), release was not considered because the appellant did not have bail on the current offences. When the District Court judge “backdated” his sentence, he nominated not the conditional release date, but the date at which the period of detention for the aggravated robberies had been served in full (15 October 2007). In theory, at least, this resulted in the appellant serving an additional period. Counsel suggested that the remedy lay in backdating further the sentence under appeal and also taking into account, in a general way, the result of the earlier failure to backdate.
Counsel also focussed on the relationship between the non-parole period and head sentence. He suggested that the non-parole period was an unusually high proportion of the head sentence, and all the more so when account was taken of the appellant’s age and the principles and considerations regulating the sentencing of young offenders in s 3 Young Offenders Act. The sentencing judge did not explain in his remarks why the non-parole period was fixed at two-thirds of the head sentence.
In response, counsel for the Director of Public Prosecutions, Mr Heffernan, submitted that no error had been demonstrated. The offences were extremely serious and called for a severe penalty. The sentence did not indicate a disregard of the principles embodied in s 3 Young Offenders Act or any error of fact. The long total period to be served and the substantial non-parole period were functions of the number of serious offences committed.
Analysis
The maximum penalty for both aggravated robbery and wounding with intent to do grievous bodily harm is life imprisonment. The judge acknowledged in his remarks on sentence that even though he had determined that the appellant should be sentenced as an adult (a decision about which no complaint is now made) the sentence needed to be informed primarily by the objects and factors set out in s 3 Young Offenders Act. (See the discussion of the relationship of s 3 Young Offenders Act with s 10 Criminal Law (Sentencing) Act 1988 in R v QTV (2003) 87 SASR 378.)
In his remarks, the judge referred to each of the matters of mitigation. Because the offences were, as he put it, “closely connected in time and nature”, the judge determined to impose a single sentence to cover all three. He said that but for the pleas of guilty the head sentence would have been one of eight years. He reduced it to six years in recognition of the pleas. Leaving to one side the time in custody which the appellant had already served, I do not think it could be said that the head sentence of six years imprisonment (as distinct from the non-parole period) was outside the discretion of the sentencing judge, even having regard to the appellant’s age and the provisions of the Young Offenders Act.
However, the sentence for these offences could not be viewed in isolation. Whilst the traditional formulation of the totality principle contemplates a single sentencing court imposing a series of sentences for multiple offences, it has long been recognised that the principle can also apply where an offender is sentenced in different states for offences committed within a confined period: R v Todd [1982] 2 NSWLR 517; R v Suckling (1983) 33 SASR 133; Mill v The Queen (1988) 166 CLR 59, 62.
In Mill the High Court considered the sentence of a man who had, within a matter of weeks, committed armed robberies in Victoria and Queensland. He was sentenced for the Victorian offences. Upon his release on parole he was extradited to Queensland and there sentenced for the offence committed in that jurisdiction. Having observed that the totality principle had been recognised as applying to such a situation, the Court set out (at 66) what approach should have been taken by the sentencing judge. The judge should have considered what head sentence would likely have been imposed had the offences been committed in the one jurisdiction and sentences imposed for all of them at the same time. Because the Queensland sentencing judge was unable to order that the term for the Queensland offence run concurrently with any part of the earlier sentence, the only means of preventing what would otherwise be injustice was for the later sentence to be reduced to reflect the “long deferment that has taken place during which the offender has been in custody” (at 67).
In Postiglione v The Queen (1996) 189 CLR 295 at 308, McHugh J referred to the recent extension of the totality principle to encompass a consideration of the criminality involved, not only in the offences for which sentence was being imposed, but also in offences for which the defendant was currently serving a sentence.
In my view there is force in certain of the submissions made by Mr Muscat. I do not think that the learned sentencing judge erred in any sense in his analysis of the offending. However, it appears he did not specifically consider the application of the totality principle, in its extended form. Such a consideration must have led to a reduction of the new sentence.
I do not underestimate the seriousness of the total course of the appellant’s offending. Plainly each offence was extremely serious and had a significant and long-lasting effect on the victims. Nonetheless, in relation to the three offences before the District Court, the appellant did not play the leading role and in particular, did not wield the knife. The offences occurred within an hour of one another. For a 17 year old, who had not previously been incarcerated, to face a period of five years and five months in custody is, I think, in all the circumstances, crushing.
Conclusion
Since the sentencing judge erred in failing to consider the totality principle and to reflect its operation in his sentence, it falls to this court to sentence afresh. I consider the judge was correct to sentence the appellant as an adult and to order that after his eighteenth birthday the sentence should be served in a prison, as opposed to in a training centre.
In my opinion, taking into account all the factors to which reference has been made, a single sentence of five years imprisonment should be imposed. In view of the appellant’s age and the hope that further progress towards rehabilitation can be made, and to ensure a substantial period of supervision after release, I would set a non-parole period of two years in relation to that head sentence.
The head sentence and the non-parole period should commence from 15 October 2007, the day when the previous period of detention expired. There is nothing to show that the appellant would have been released sooner than that, although one must recognise the possibility of an earlier release. In any event, I consider that a further reduction in the non-parole period would not be justified.
I would make the following orders:
1. that the appeal be allowed;
2. that the sentence imposed by the District Court be set aside;
3.that in its place there be substituted a single sentence of imprisonment for five years, and that in relation to that head sentence a non-parole period of two years be fixed;
4.that the sentence of imprisonment and the non-parole commence on 15 October 2007;
5.that the sentence be served in a training centre until the appellant reaches 18 years of age and that the balance of the sentence be served in a prison.