R v Carlon - [2010] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARLON
[2010] SADC 164
Reasons for Decision of Her Honour Judge McIntyre
20 December 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The defendant pleaded guilty to theft, aggravated robbery, aggravated dangerous driving to escape police pursuit and driving whilst disqualified. Prior to sentence the prosecution sought a declaration that the defendant be declared a serious repeat offender under section 20B of the Criminal Law (Sentencing) Act 1988 (SA).
Held:
(1) The defendant is liable to be declared a serious repeat offender in light of his antecedent history having committed on at least three separate occasions a serious offence.
(2) In this matter a severe sentence of imprisonment that gives proper emphasis to deterrence, punishment and protection of the community but which remains proportionate to the gravity of the crimes will afford society a sufficient level of protection. This is not one of the rare cases where the protection of the public warrants the imposition of a sentence disproportionate to the gravity of the offences.
Criminal Law Sentencing Act 1988 (SA), referred to.
R v Williams (2008) 96 SASR 226; R v Curtis (No 2) (2009) 105 SASR 411 , applied.

R v CARLON
[2010] SADC 164
Background

The defendant is before the Court for sentence in relation to four offences committed on 27 April 2010; theft, aggravated robbery, aggravated dangerous driving to escape a police pursuit and driving whilst disqualified. The defendant has an extensive list of prior convictions. Because of the fact that the defendant is to be sentenced for a serious offence and because his history of offending includes other serious offences the prosecutor has applied for an order declaring the defendant a “serious repeat offender” within the meaning of s.20B of the Criminal Law (Sentencing) Act 1988.
The consequences of a declaration under section 20B are very significant. A defendant is exposed to a particularly severe sentence in which proportionality plays no part and which further requires a higher than usual non-parole period of at least four-fifths the length of the sentence.[1] Such orders should be made with care and in rare cases where it is necessary to protect the community.[2]
[1] R v Curtis (2) (2009) 105 SASR 411 per Gray J at p418
[2] R v Curtis (2) per Gray J at p426 & R v Williams (2006) 96 SASR 226 Sulan J at p239
The Legislation
Section 20B relevantly provides:
(1)     A person is liable to be declared a serious repeat offender if the following      conditions apply:
(a)     the person (whether as an adult or a youth) –
(i)    has committed on at least three separate occasions an offence to which                  this division applies (whether or not the same offence on each   occasion); and
(ii)     has been convicted of those offences; or
(b)     …….
(3)     If a court convicts a person of a serious offence, and the person is liable or      becomes liable as a result of the conviction, to a declaration that he or she is a       serious repeat offender, the court –
(a)     must consider whether to make such a declaration; and
(b)     if of the opinion that the person’s history of offending warrants a particularly         severe sentence in order to protect the community – should make such a              declaration.
(4)     If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender –
(a)     the court is not bound to ensure that the sentence it imposes for the offence is         proportional to the offence; and
(b)     any non-parole period fixed in relation to the sentence must be at lest four-             fifths the length of the sentence.
Serious offence is defined in section 20A as including an offence of robbery or aggravated robbery or an attempt to commit robbery or aggravated robbery. It also includes an offence committed in circumstances in which an offender uses violence or a threat of violence in the course of committing the offence.
Is section 20B enlivened?
The prosecutor says that the section is enlivened because the defendant has committed and been convicted of a serious offence on at least three separate occasions in addition to the matters for which he is to be sentenced. The relevant offences are:
·In the District Court of Queensland sitting at Southport on 28 October 1999 the defendant was convicted inter alia of attempted armed robbery and ordered to serve two years of probation with conditions and 200 hours of community service.
·In the County Court of Victoria sitting at Melbourne on 4 August 2006 the defendant was convicted of armed robbery and sentenced to 33 months imprisonment and convicted of attempted armed robbery for which he received 30 months imprisonment with 27 months of the sentence to be served concurrently with the prior sentence.
·In the County Court of Victoria sitting in Geelong on 13 July 2007 defendant was convicted of two counts of armed robbery and one count of attempted armed robbery for which he received a total of 3 years and 6 months imprisonment with a non-parole period of 12 months.
In my view, these convictions in addition to the current matters plainly enliven the discretion. I must therefore consider making a declaration. .
Should the discretion be exercised?
The declaration should only be made if the protection of the community warrants a longer than proportionate sentence.[3]
[3] R v Curtis (2) at p426 & R v Williams at p239
Several potentially relevant factors were outlined by Sulan, J in Williams[4]:
Factors to be considered include the number of prior offences, the seriousness of the offences, the age of the defendant and his or her prospects of rehabilitation, the time which has elapsed between the repeat offences, the likelihood of further reoffending and the nature of offending, having regard to the protection of the community.
[4] R v Williams at p239
In this case the defendant has been previously been convicted of three attempted armed robberies and three armed robberies committed over an 8 year period. They are not the only offences committed by the defendant during this period of time. He has numerous convictions for dishonesty, misuse of motor vehicles and drug offences. The offences for which I must sentence the defendant include a further robbery aggravated by the use of a weapon committed less than three years after the last conviction for armed robbery in Victoria.
I have no information about the circumstances of the prior armed robberies but the current offences are very serious. The defendant had been released from prison on parole on 6 April 2010 under a sentence imposed in the Port Adelaide Magistrates Court on 7 October 2009 for, inter alia, theft and serious criminal trespass. Less than a month after his release on parole the defendant went to the North Adelaide aquatic centre where he stole a van. He then went to his place of residence and collected items including a firearm and clothing with which he attempted to disguise his appearance. He then went to the Bombay Bicycle Club where he approached a female staff member. He pointed the firearm at her and demanded money from the safe. She gave him the sum of $5,500. The firearm did not work but she was not to know this. A customer was present at the time of the offending and described being scared on observing the weapon and its use. The defendant then drove the stolen vehicle back to his residence where he remained for a period before again driving the stolen van. The police saw him and a car chase ensued through the streets of Brompton and Ridleyton. During the course of the pursuit the defendant drove in a dangerous manner including driving at high speed and on the wrong side of the road. He subsequently lost control of the vehicle and hit a stobie pole. He was at the time disqualified from driving.
The defendant is a relatively young man of 28. I have had regard to the contents of the reports of Dr Cayley a forensic psychologist dated 13 September 2010 and a pre-sentence report dated 14 December 2010. The views of both report writers are well summarised in the pre-sentence report as follows:
Shane Carlon is a 28 year old man whose subject offending appears precipitated by both his drug and gambling addictions. That in turn seems partly underpinned by his experience of depression and significant anxiety. In fact, he appears trapped in a cycle of anxiety, drug use, gambling, criminal behaviour and imprisonment. It would also seem that successive episodes of imprisonment are contributing to an increasing institutionalisation process whereby the defendant’s capacity for functioning in the community is being eroded by the anxiety generated by his release. This scenario in turn, is likely to increase the prospect of him self medicating his symptoms with depressant drugs such as heroin and benzodiazepines.
Both Ms Cayley and the pre-sentence report writer consider that the defendant will require a very structured and systematic program to assist him to develop the skills that he needs to successfully return to the community including treatment and counselling to address both his anxiety and depression and his drug use. The pre-sentence report writer has also identified that the defendant has a gambling addiction which must also be addressed to prevent re-offending. Both report writers have provided detailed recommendations concerning his treatment. Plainly this should to occur in a custodial sentence prior to his being released into the community. On release he will also need considerable assistance to avoid relapsing into drug taking, gambling and further offending.
The defendant accepts that it is important for him to abstain from heroin use and gambling if he is to avoid offending in the future. He told the pre-sentence report writer that he was not sure which of his addictions, gambling or drugs, took precedence suggesting that his funds are divided equally between the two. He has expressed to both the report writers a desire to address his abuse of opiates. He suggested, amongst other things, that he would consider using a naltrexone implant, counselling and other medical treatment. In the past he has only had limited drug treatment in gaol and on release. It appears from the pre-sentence report that his pre-release drug treatment was less than optimal potentially causing him to relapse very promptly on his release on parole. It is not clear that his gambling addiction has been previously identified or been the subject of treatment.
This is a very difficult matter. The defendant has a dreadful record of prior offending associated with drug use and possibly also gambling addiction. He seems to have no thought for the consequences of his actions. I must consider whether a particularly severe penalty is required in order to protect the community in light of the defendant’s antecedents and the nature of offences committed on 27 April 2010.
The defendant is a young man who functions at the low-average intelligence range. He recognises the cause of his offending and has expressed a desire for rehabilitation. He has not received much support or assistance in the past. In my view, in light of the prospect that the defendant will receive further and more intensive treatment for drug abuse and gambling addiction whilst in jail and the concerns expressed about his increasing institutionalisation, a severe sentence of imprisonment that gives proper emphasis to deterrence, punishment and protection of the community but which remains proportionate to the gravity of the crimes will afford society a sufficient level of protection. In my view this is not one of the rare cases where the protection of the public warrants the imposition of a sentence disproportionate to the gravity of the offences.
The application by the Director of Public Prosecutions is refused.