R v Copeland (No 2)

Case [2010] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COPELAND (No 2)

[2010] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)

25 November 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against sentence - defendant and appellant found guilty by jury verdict of using a motor vehicle without consent, attempted armed robbery and three counts of aggravated armed robbery - defendant sentenced to the one term of imprisonment of 16 years pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - a non-parole period of 10 years fixed - whether sentence and non-parole period manifestly excessive - whether error of approach identified in application of section 18A - whether Judge required to have specific regard to sentence appropriate for each offence when utilising section 18A to fix the one sentence.

Held:   appeal dismissed.

(Gray J): no error of approach identified - the use of section 18A to fix the one sentence of imprisonment was appropriate - section 18A does not require the identification of separate notional sentences for each offence - sentencing remarks adequately explain how the ultimate sentence was determined - sentence and non-parole period within the Judge's discretion.

(White J):  when s 18A of the CLSA is invoked it is necessary for the sentencing court to provide an adequate explanation for the sentence imposed – it is usually desirable for the Court to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent, and then to determine the aggregate sentence – in those cases in which that approach is impracticable, the sentencing court should, by other means, give an adequate explanation of the sentence – the failure of the Judge to give an explanation of the means by which the starting point of 16 years and 4 months was derived was an error – neither the Judge’s head sentence nor the non-parole period are manifestly excessive.

(Kourakis J): no error in approach identified - a failure to disclose individual sentences when fixing a single sentence pursuant to section 18A is not an error of law - it is good practice to identify sentences and issues of concurrency when utilising section 18A - sentence imposed not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 86A, s 137(1), s 270A and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10 and s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; Attorney-General v Tichy (1982) 30 SASR 84; R v Simpson (2004) 89 SASR 515; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v Van der Horst [2006] SASC 243; R v Jason [2002] SASC 201;

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AGLC
R v Copeland (No 2) [2010] SASCFC 61
Case
[2010] SASCFC 61
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence brought by the appellant, who had been found guilty by a jury of using a motor vehicle without consent, attempted armed robbery, and three counts of aggravated armed robbery. The sentencing judge imposed a single term of imprisonment of 16 years, with a non-parole period of 10 years, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The appellant argued that the sentence and non-parole period were manifestly excessive and that the sentencing judge had erred in their application of section 18A.

The primary legal issue before the court was whether the sentencing judge had correctly applied section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in fixing a single aggregate sentence for multiple offences, and whether the resulting sentence was manifestly excessive. Specifically, the court considered whether the judge was required to determine notional individual sentences for each offence before imposing the single sentence under section 18A, and whether the totality principle had been appropriately applied.

The Full Court of the Supreme Court of South Australia, comprising Gray, White, and Kourakis JJ, held that the sentencing judge had made no error of principle. The court noted that while it is generally desirable to determine notional individual sentences and consider their concurrency or cumulation before imposing an aggregate sentence under section 18A, this approach may be unnecessary in certain circumstances, such as when the totality principle clearly operates to reduce the otherwise appropriate sentence. The court found that the sentencing judge had considered all material matters, including the appellant's extensive criminal record and the nature of the offending, and that no extraneous or irrelevant matters had influenced the sentencing process.

Ultimately, the Full Court dismissed the appeal. It concluded that, given the course of criminal conduct and the appellant's prior record, the single sentence of 16 years imprisonment with a non-parole period of 10 years was within the sentencing discretion of the judge and was not manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J WHITE J (dissent)
In my view, the sentencing Judge has made no error of principle. No extraneous or irrelevant matters have affected the sentencing process. No mistake of fact has been made. All material matters have been considered. Given the course of criminal conduct, the one sentence of imprisonment for 16 years with a non-parole period of 10 years for all offending was within the Judge’s sentencing discretion.Conclusion I would dismiss the appeal. A jury found the appellant guilty of five offences: three offences of aggravated robbery,[45] one offence of attempted aggravated robbery,[46] and one offence of using a motor vehicle without the owner’s consent.[47][45] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[46] Contrary to s 137(1) and s 270A of the CLCA.[47] Contrary to s 86A of the CLCA. The appellant, who is now aged 47, has an appalling criminal record. His list of prior offences comprises some 11 pages. A Judge of the District Court declined to make a declaration under s 20B of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) that the appellant is a “serious repeat offender”. Instead, acting under s 18A of the CLSA, the Judge imposed a single sentence of imprisonment for a period of 16 years and fixed a non-parole period of 10 years. The Judge ordered that the head sentence and the non-parole period commence on 3 July 2009, the date upon which the appellant commenced time in custody in respect of the subject offences. As the sentence of 16 years was in addition to a period of four months which the appellant had spent in custody before 3 July 2009 which was attributable to these offences, it was in effect a sentence of 16 years and four months. The appellant now appeals against that sentence. There is a single ground of appeal, namely, that the sentence is manifestly excessive. Although the sentence imposed by the Judge is undoubtedly severe, the appellant’s offending called for such a sentence. I consider that the appeal should be dismissed. My reasons follow.Circumstances of the Offending This is the appellant’s second appeal to this Court in relation to the offences which are the subject of this appeal. On 2 August 2010, this Court dismissed an appeal against the convictions.[48] The circumstances of the offences are set out in some detail in the reasons of Duggan J, with whom Doyle CJ and David J agreed. That makes it unnecessary in these reasons to include all the same detail.[48] R v Copeland [2010] SASCFC 11. On 10 October 2007, the appellant stole a Mitsubishi sedan from business premises in Kent Town. The car was not recovered until 18 October 2007. The appellant used the car in the armed robberies on 12 October 2007. His taking of the car constituted the offence of using a motor vehicle without the owner’s consent. The three aggravated robbery offences and the attempted aggravated robbery offence occurred within the space of about one hour on 12 October 2007. At about 2.45 pm, the appellant entered a veterinary clinic at Payneham and, using a sawn-off shotgun, demanded the money in the cash register. When the employee refused to comply with this demand, he fled the clinic but travelled immediately to another veterinary clinic at Burnside. He entered this clinic at about 3.05 pm, pointed the sawn-off shotgun at the attendant and demanded the contents of the cash register. The appellant then went immediately to another veterinary clinic at Tusmore where, again, he used the shotgun in his demand for money. From there, the appellant travelled to an eye clinic at Blackwood. Again he demanded money, backing up his demand with the sawn-off shotgun. This occurred at about 3.35 pm.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

The Judge referred to the matters which I have summarised above. She said:Your previous lack of response to leniency and parole would have meant that the inevitable term of imprisonment would involve the imposition of a very lengthy non‑parole period. However, because of the evidence of change I am able to extend some, albeit limited, mercy with respect to the non-parole period that I must impose.In fixing the penalty the Judge said:I do not agree that I should impose wholly concurrent sentences for these offences. Having said that, I have regard to the short time [span], if you like, of this offending and that will significantly affect the length of the sentence. The illegal use offence, the using of [the owner’s] car is not to be ignored either, because that was a serious offence. The damage caused to the vehicle was great and you also have many prior offences of that nature. In fixing the sentence that I will now impose I have also had regard to the totality principle.Consideration of Appeal The decision of this Court in R v Place[49] indicates that the starting point for a sentence for a single offence of armed robbery will usually be of the order of six to eight years imprisonment. Doyle CJ, Prior, Lander and Martin JJ said:This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.[50]Of course, this is not an immutable starting point. The circumstances of an individual case may indicate that a higher or lower starting point is appropriate.[49] [2002] SASC 101; (2002) 81 SASR 395.[50] Ibid at [100], 429. The appellant was to be sentenced for three offences of armed robbery in addition to the other offences. This made it inevitable that a sentence greater than the starting point for a single offence would be fixed. Beyond rejecting the appellant’s submission that the Court should impose separate but wholly concurrent sentences, the Judge did not give any explanation of the way in which the single sentence imposed under s 18A of the CLSA was constructed. It is unfortunate that the Judge did not do so. When s 18A of the CLSA is invoked, it is usually desirable for a sentencing judge or magistrate to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent, and then to determine the aggregate sentence.[51] Of course, there are some circumstances in which it is either unnecessary or inappropriate to determine notional individual sentences. Doyle CJ described such circumstances in R v Symonds[52] in the following terms:The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.[53](Emphasis added)[51] R v Major (1998) 70 SASR 488 at 490, 497; R v Gale [1999] SASC 309 at [18]-[19]; (1999) 74 SASR 235 at 238; R v Tu [2001] SASC 395; (2001) 216 LSJS 297 at [16]; R v Waugh [2005] SASC 470 at [42]; (2005) 93 SASR 274 at 284.[52] [1999] SASC 217.[53] Ibid at [22].