R v Christiansen

[2006] SASC 274

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CHRISTIANSEN

[2006] SASC 274

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)

8 September 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence - appellant sentenced for the offences of armed robbery, robbery, failing to comply with a restraining order, two counts of larceny, stating false name and address, breach of bail, assaulting police, deceiving to obtain a benefit, attempting to deceive to obtain a benefit, theft, forging a prescription and breach of bond - appellant sentenced to six years, five months imprisonment with a non-parole period of 18 months - appellant spent two years and eight months on home detention bail - sentencing judge deducted one month from head sentence for factors including period spent on home detention bail - whether allowance was adequate - whether sentencing judge gave adequate consideration to the mental health issues of the appellant - held, allowance for period on home detention bail is a matter of discretion - sentencing judge did not err in discretion - appeal dismissed.

Criminal Law Sentencing Act 1988 s 18A, referred to.
R v Nguyen [2004] SASC 405, applied.
R v Allen [1999] SASC 346, distinguished.

R v CHRISTIANSEN
[2006] SASC 274

Court of Criminal Appeal:  Duggan, Sulan and David JJ

1. DUGGAN J.         I would dismiss the appeal for the reasons prepared by David J.

2. SULAN J. I would dismiss the appeal.  I agree with the reasons of David J.

3. DAVID J.               The appellant appeals against a sentence imposed upon her in the District Court on 25 May 2006.  Initially the appellant pleaded guilty to one count of armed robbery which was committed on 14 May 2003 and one count of robbery which was committed on 2 October 2003.  As well, the sentencing judge was also asked to deal with eleven Magistrates Court offences which were committed between July 2002 and March 2005.  Therefore, the sentencing judge was called upon to deal with the following matters:

   1.     District Court Information dated 12 January 2004

   -       Armed robbery

   -       Robbery

   2.     Complaint dated 2 July 2004

   -       Fail to comply with a restraining order

   3.     Complaint dated 24 December 2002

   -       Larceny

   4.     Complaint dated 9 January 2003

   -       Larceny

   -       State false name and address

   5.     Complaint and Summons dated 1 June 2005

   -       Fail to wear safety helmet

   6.     Complaint dated 2 October 2003

   -       Breach bail

   7.     Complaint dated 31 May 2004

   -       Assault police

   8.     Information dated 9 February 2004

   -       Deceiving to obtain a benefit

   -       Attempting to deceive to obtain a benefit

   9.     Information dated 4 May 2005

   -       Theft

   -       Forging a prescription

   10.Application for Enforcement of Breach of Bond dated 19 December 2005

4. On 25 May 2006 the appellant was sentenced to a head sentence of six years and five months imprisonment with a non‑parole period of eighteen months imprisonment, to commence from the day of sentence. The sentencing judge arrived at that sentence by imposing a sentence of three years imprisonment for the offence of armed robbery and a sentence of two years and six calendar months imprisonment for the offence of robbery, cumulative upon the sentence for armed robbery. Understandably, he convicted without imposing a penalty for the bicycle helmet offence. For the remaining ten Magistrates Court offences, he imposed a penalty of twelve months imprisonment, pursuant to s 18A of the Criminal Law Sentencing Act 1988, cumulative upon the previous two sentences.  He deducted one month for time spent in custody and for an allowance for time spent on home detention bail.  In his sentencing remarks he made it clear that when fixing the non‑parole period he took into account the part played in the offending by the parlous mental health of the appellant, the steps the appellant had taken to address her drug and alcohol abuse, and her pleas of guilty showing contrition.  He declined the appellant’s counsel’s plea for suspension.

   Circumstances of the Offending

5. The offence of armed robbery occurred on 14 May 2003 when the appellant entered the Liberty Service Station at Camden Park.  She approached the console operator and threatened him with a blood‑filled syringe, robbing him of 23 packets of cigarettes and $533.  She fled the scene on a bicycle, but was detained by police shortly thereafter.

6. Whilst on bail for that offence she committed the offence of robbery on 2 October 2003 when she entered the Woolworths Plus petrol station at Camden Park and, having purchased a mobile telephone recharge card, demanded $100 from the attendant by threatening to use a gun.

7. The circumstances of the Magistrates Court offending are as follows: The first larceny offence involved the appellant stealing two DVDs valued at $53.20 from the Kmart Store at Kurralta Park on 17 May 2002.  The second larceny offence also involved the theft of DVDs this time from the Edwardstown Target store on 19 December 2002.  On the second occasion, the appellant gave police a false name and address, giving rise to an additional offence.

8. The domestic violence restraining order breach involved the appellant making a series of three phone calls on 14 March 2003 in contravention of a domestic violence restraining order.

9. The deception and attempted deception charges arose from two incidents in February 2004.  On 2 February 2004, the appellant attended the Toorak Gardens branch of Bank SA and used a forged signature to withdraw $2000 from her parents’ joint pensioner savings account. On 6 February 2004, she again attended the bank branch and attempted, this time unsuccessfully, to withdraw $1500.

10. The details of the assaulting police charge are that on 7 May 2004, police attended an IGA supermarket at Novar Gardens where the appellant had been reported for shoplifting.  When the police were escorting her from the premises she threw a plastic bucket at one of the police officers, hitting him in the upper body; the officer was not injured.

11. The theft and forging convictions arose when the appellant stole 12 blank prescription forms on 28 March 2005 from the Morphettville Medical Centre.  Later that day she forged a prescription with a view to obtaining Valium.

12. There were also two charges of breach of bail.

    Personal Circumstances

13. At the time of sentencing the appellant was 38 years of age.  After she had left school she became an elite bodybuilder.  However, over a period of time she suffered severe mental problems, details of which were set out in a number of psychological and psychiatric reports tendered to the sentencing judge.  The reports referred to sexual abuse, destructive alcohol abuse and drug dependency.  Over the period of time that the offences were committed she suffered from psychotic symptoms and a borderline personality disorder.  She is a single mother.  She lost custody of her daughter in September 2003.  Her parents now have custody of the child.  The sentencing judge also noted that the appellant at the time of sentencing had desisted from taking illicit drugs and alcohol for many months, and was seeking to place herself in a position to regain custody of her child.

    Grounds of Appeal

14. There are three grounds of appeal against sentence:

    1.The learned sentencing judge failed to give adequate account to the 2 years and 8 months the appellant had spent in home detention bail in fixing both the head sentence and the non‑parole period.

    2.The learned sentencing judge failed to give adequate account to the mental health issues of the appellant in fixing the head sentence, apparently limiting the relevance of mental health issues to the setting of the non‑parole period (refer third last paragraph sentencing remarks).

    3.In the circumstances the court has failed to give adequate account to relevant circumstances in the exercise of its discretion to not suspend the term of imprisonment faced by the appellant namely

    (a)     the time spent in home detention;

    (b)    the appellant’s mental health as affecting the gravity of the offences, and the place of deterrence both general and specific in sentencing the mentally unwell.

15. Mr Richards, counsel for the appellant, conceded that the main thrust of his argument related to the first ground, and if that was not made out, the other two grounds of themselves were barely arguable.  I therefore turn to a consideration of ground 1.

16. Throughout the period from arrest to sentence the appellant had spent a period of two years and eight months on home detention bail.  She had also spent a number of days in custody.  During sentencing submissions there was some uncertainty as to whether it was thirteen days or seventeen days, or perhaps even a little more.  To allow for that uncertainty the sentencing judge allowed an overall deduction of one month for time spent in custody.  In his sentencing remarks he said:

    Your counsel put to me that you have had 17 days in custody in respect of these matters.  Inquiries with the Correctional Services undertaken by the Crown indicate now 13 days.  You have had a long stint of home detention bail.  Out of an abundance of caution I will make a deduction of one month to allow for the time in custody and the long stint of home detention bail.

    The appellant now argues that a specific period of time should have been deducted from the sentence by the judge for the time spent on home detention bail.  As I understand Mr Richards’ argument, such a specific period should have been deducted from both the head sentence and non‑parole period to make allowance for the two years and eight calendar months spent on home detention.  There is no authority that a specific period of time should be deducted from either the head sentence or the non‑parole period, or both, to allow for home detention bail, rather the length of time that is spent on home detention bail in certain circumstances may be one of the matters a court will have regard to in the exercise of its sentencing discretion.  In R v Allen [1999] SASC 346 at [16] Duggan J said:

    The latter consideration [time spent on home detention bail] is a factor which can sometimes be taken into account for sentencing purposes … I think it is a relevant factor in the present case in view of the withdrawal of the charge, the existence of which led to such stringent conditions of bail which would not have been imposed if the appellant had faced nothing more than the charge of simple larceny.  It should not have been taken into account as equivalent to a period of nine months spent in custody, but it is nevertheless a relevant consideration to the sentencing of the appellant in this case.

    Also in R v Nguyen [2004] SASC 405, in commenting on R v Allen, Duggan J said at [4]:

    Complaint was made of the fact that the learned sentencing judge did not allow any reduction for the period of 15 months on home detention bail.  This is a factor which can sometimes be taken into account for sentencing purposes: Rv Allen (1999) SASC 321[sic] at [16]. However, the court is not obliged to make a reduction on account of this consideration: Allen at [23]. Allen was a unique case in which the appellant was falsely accused of armed robbery.  He pleaded guilty to larceny but, in the meantime, he was subjected to bail with home detention conditions for a period of nine months.  This would not have been the case if he had not been charged with armed robbery.  In the present case, the home detention conditions were imposed in different circumstances.  The appellant continued to offend whilst on bail which had been granted after she had been charged following the first search of her house.  Although granted bail again, it was considered necessary to make the conditions of bail more stringent.  In the circumstances I do not think that a reduction was appropriate for the time spent on home detention bail.

17. The sentencing judge in allowing a deduction of one month to cater for the uncertainty of time spent in custody and, therefore, leaving very little deduction for home detention bail, approached the matter appropriately.  The reason the appellant was placed on home detention bail was because she had breached bail conditions by committing other offences.  Her position is to be contrasted with the position in Allen’s case in which the defendant was placed on stringent conditions of bail because of allegations that were never sustained.  In my view, the sentencing judge did not incorrectly exercise his discretion.

    The Sentence Imposed

18. The head sentence of six years imprisonment, consisting of cumulative sentences for armed robbery and robbery, plus a cumulative sentence for the remainder of the Magistrates Court matters was appropriate.  Both the offences of armed robbery and robbery are serious offences.  The terms of imprisonment of three years and two and a half years were well within the sentencing range.  The learned sentencing judge carefully considered all mitigating factors, including the appellant’s mental health problems and drug abuse, and in my view, gave a very merciful non‑parole period of eighteen months.

19. Because of the seriousness of the offending, with the aggravating fact that the charge of robbery was committed whilst the appellant was on bail, the sentencing judge did not err in refusing to suspend the sentence he imposed.

20. I would dismiss the appeal.