R v DEVRIES - [2019] SASCFC 8

Supreme Court of South Australia
(Court of Criminal Appeal)
R v DEVRIES
[2019] SASCFC 8
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Auxiliary Justice David)
4 February 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY
The appellant was sentenced for several different offences and appeals against the sentence imposed on five separate grounds.
The appellant pleaded “not guilty” to a charge of aggravated robbery in February 2017. Subsequently, in May 2017, the appellant entered a plea of guilty to the alternative charge of basic robbery. The sentencing Judge characterised the “not guilty” plea in February 2017 as the appellant’s “first court appearance” for the purposes of s 10C(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA) and allowed a statutory discount of 20 percent for the appellant’s plea of guilty.
It was argued that the appellant’s first court appearance was in May 2017 for the purposes of s 10C(2)(a) and the appropriate statutory discount was accordingly 40 percent.
Whether the sentence imposed in relation to the charge of robbery was manifestly excessive having regard to the appellant’s personal circumstances. Where the Judge erred in treating the second driving under disqualification offence as a subsequent offence for the purposes of setting the maximum penalty. Whether the Judge erred in accumulating the sentences attracting a term of imprisonment. Whether the head sentence overall was manifestly excessive.
Held, per David AJ (Kourakis CJ and Nicholson J agreeing) refusing permission to appeal on grounds 1, 4 and 5, granting permission to appeal on ground 3 and dismissing all grounds of appeal:
1. Because it was open to the appellant to enter a plea of guilty to the basic offence of robbery in February 2017 as it was an alternative to the aggravated offence as charged, that was the first court appearance for the purposes of s 10C(2)(a).
2. The sentencing Judge did not err in accumulating the sentences. Each offending was quite separate from the others and involved a separate breach of the law.
3. There is no dispute that the Judge erred in treating the second driving under disqualification as a subsequent offence for the purposes of setting the maximum penalty, however the starting sentence of 30 days’ imprisonment is not manifestly excessive or indeed inappropriate.
4. It could not be reasonably argued that either the penalty imposed for robbery nor the overall penalty is manifestly excessive.
Magistrates Act 1983 (SA) s 22; Criminal Law (Sentencing) Act 1988 (SA) s 10C, referred to.
R v Muldoon (2015) 123 SASR 1; R v Ballam (2016) 126 SASR 189, considered.

R v DEVRIES
[2019] SASCFC 8
Court of Criminal Appeal: Kourakis CJ, Nicholson J and David AJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by David AJ.
I would add that I see no reason why the appellant could not have pleaded guilty when he appeared in the Magistrates Court. Legal practitioners should take time to understand the full implications of the legal principle set out in [26] of the judgment of David AJ.
The circumstances in R v Ballam[1] are peculiar and unlikely to be commonly encountered. The pleading of a circumstance of aggravation is a particular of the charged offence. It is not obvious to me why a defendant could not plead guilty to an aggravated offence in which no circumstance of aggravation is particularised, or to an aggravated offence on the basis of a circumstance of aggravation other than one which is particularised. Be that as it may, the circumstances of this case are plainly distinguishable.
[1] (2016) 126 SASR 189.
NICHOLSON J: I would dismiss the appeal for the reasons given by David AJ.
DAVID AJ:
Introduction
This is an appeal against a sentence imposed upon the appellant by a District Court Judge for a number of offences, namely, one count of basic robbery, one count of affray, three counts of failing to comply with a bail agreement, one count of hindering police, one count of using a mobile phone whilst driving, two counts of driving under disqualification or suspension, and one count of damaging a building or motor vehicle. The offending also breached a good behaviour bond.
By a process of accumulating a number of the sentences imposed, the sentencing Judge imposed a total head sentence of three years, one month and 23 days’ imprisonment with a non-parole period of 14 months and 10 days.
This appeal mainly focusses on the question of whether the sentencing Judge erred in allowing a statutory discount of 20 percent for the appellant’s plea on the charge of armed robbery as distinct from a maximum reduction of 40 percent, which the appellant argues was the appropriate amount. The appellant also argues that the total head sentence was manifestly excessive, that all sentences should not have been accumulated, and that the sentencing Judge erred in regarding a second count of driving under disqualification as a subsequent offence. This will be discussed later in these reasons.
The charges
I set out in full the charges to which the appellant pleaded guilty. As can be seen, a number of these were transferred from the Magistrates Court pursuant to s 22 of the Magistrates Act 1983 (SA).
1One count of robbery committed on 6 June 2017;
2One count of affray;
3Two counts of driving whilst disqualified;
4Three counts of failing to comply with a bail agreement;
5One count of hindering police;
6Using a mobile phone whilst driving;
7Three counts of failing to comply with a bail agreement;
8One count of property damage committed on 23 February 2017; and
9One count of breach of a good behaviour bond which was given to the appellant following a conviction for affray that occurred on 20 June 2015. The appellant was sentenced for that on 17 June 2016 and the subsequent convictions to which he has pleaded activated an application for breach of that bond, to which he has now pleaded guilty.
The sentences
The sentencing Judge imposed the following penalties:
1For the offence of robbery, his Honour imposed two years’ imprisonment reduced by 20 percent for the appellant’s plea of guilty to 19 months and six days. It is to be noted that the maximum penalty is 15 years’ imprisonment.
2For the first offence of driving under disqualification, his Honour imposed 10 days’ imprisonment reduced to seven days because of the appellant’s plea of guilty. The maximum penalty is six months’ imprisonment.
3For the second charge of driving under disqualification, the sentencing Judge treated it as a subsequent offence where the maximum penalty is two years. He imposed a sentence of 30 days’ imprisonment reduced to 21 days for the appellant’s plea of guilty.
4For the charge of affray, he imposed a term of imprisonment of 12 months but reduced it to eight months and 12 days in the light of his plea of guilty. That offence attracts a maximum of three years’ imprisonment.
5For the count of using a mobile phone whilst driving, the appellant was convicted without further penalty.
6For the offences of hinder police and three offences of breach of bail which involved not adhering to reporting conditions, the appellant was convicted without further penalty.
7For the breach of bond which was imposed because of a previous offence of affray, the sentencing Judge imposed a penalty of 12 months’ imprisonment and reduced it to eight months and 12 days also because of his plea of guilty.
The sentencing Judge then ordered that the sentences should be served cumulatively and this amounted to a total period of three years and three months. However, he reduced it for time spent in custody, making a total head sentence of three years, one month and 23 days. He set a non-parole period of 14 months and 10 days.
The appellant’s offending
The first offence of affray, which resulted in the breach of bond mentioned above, occurred on 20 June 2015 at the Angle Vale Tavern where the appellant was one of about 15 people involved in a fight in the dining area. Barstools, glasses, and chairs were thrown by various participants and the appellant was captured on CCTV throwing a number of punches which struck other people.
The offence of property damage was committed on 23 February 2017 and involved a “road rage” incident in which the appellant stopped his car in front of the female victim’s car in the middle of the road on which they were travelling and threw something at her windscreen. He then emerged from his vehicle, approached the victim’s vehicle, and kicked the front passenger door as the victim tried to reverse, causing $628.77 worth of damage.
The most serious offence, namely the robbery offence, was committed on 6 June 2017. The appellant was driving with his brother and side-swiped the vehicle of his female victim and threw a bottle of water at her as she was driving. As a result, the appellant was followed by the victim’s vehicle and was of the belief that the victim had taken out her mobile phone in order to photograph the registration number of his vehicle, presumably to make a report to the police. The appellant’s brother approached the victim’s car door and opened it in a threatening manner (he pleaded guilty to assault). The offence of robbery was committed by the appellant when he reached into the vehicle and forcibly took the mobile phone from the victim, in the course of which she was struck in the area of the head and upper body.
At this time, the appellant had been disqualified from driving since 5 April 2017. This was the first offence of driving whilst under disqualification or suspension.
On 19 September 2017, the appellant once again was apprehended by the police, this time for using a mobile phone whilst driving and he was also under disqualification. That driving makes up the offences of using a mobile phone and the second count of driving whilst disqualified.
On 17 February 2018, the appellant, with three other males, became involved in a fight at the Adelaide Casino. This involved punching two male victims, who left the casino and, while outside, were violently assaulted by the appellant and others. A number of kicks and punches were inflicted upon the victims’ heads and bodies and the appellant was caught on CCTV and arrested on 1 March 2018. That behaviour constitutes the offence of affray.
The three counts of failing to comply with a bail agreement arise out of the appellant’s failure to report at the Elizabeth police station. Those breaches occurred between 15 September 2017 and 26 February 2018.
Appeal
There are five grounds of appeal which I set out:
1.The sentence imposed by the Learned Sentencing Judge in respect of the offence of robbery was manifestly excessive, having regard to:
(a)     The plea of guilty entered by the Applicant and the timing of the same;
(b)     The antecedents of the Applicant including the Report of Dr Jack White;
(c)     The age of the Applicant;
(d)     The role of the Applicant in the commission of the offence;
(e)     The Applicant’s remorse;
(h)     The age of the Applicant, lack of significant offending history, his personal circumstances including his relationship status.
2.The Learned Sentencing Judge erred in only allocating a reduction of 20% discount for the Applicant’s plea when the circumstances of the plea being entered after negotiations with the prosecution indicated that the offender should have received at least a 30% discount in respect of his plea in regards to the robbery matter.
3.The Learned Sentencing Judge when sentencing the Applicant on the second Drive Disqualified offence sentenced on the basis of it being a subsequent offence when the sentence should have been one of a first offence in line with the first Drive Disqualified offence.
4.The Learned Sentencing Judge erred in the application of the cumulation of each individual sentence upon one another when the circumstances of the offending and warranted partial cumulation and partial concurrency applicability.
5.The total head sentence of 3 years 1 month and 23 days imposed was manifestly excessive.
It is to be noted that ground 3 was conceded by the respondent before this Court in that the subsequent offence for driving whilst disqualified should not have attracted the higher penalty of a maximum of two years’ imprisonment because it was not a subsequent offence. It is clear law that a subsequent offence is one committed after a conviction for an earlier offence. That was not the case here. However, despite that concession, the respondent argues that the penalty of 30 days was an appropriate penalty, bearing in mind that the appellant had been apprehended for driving whilst disqualified on 19 July 2017 and was therefore clearly warned.
Permission to appeal was granted by a single Judge of this Court in relation to ground 2. Permission was refused on all other grounds and they were referred to this Court for argument.
I turn to ground 2.
Ground 2
The sentencing Judge from a starting point of two years’ imprisonment, reduced it by 20 percent to 19 months and six days. The appellant argues that the appropriate reduction should have been up to 40 percent. The legislation affecting that question was s 10C(2) of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”). The parties did not dispute that this was the applicable legislation. I set out in full s 10C(2) of the CLSA:
(2)If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e)     within 7 days immediately following—
(i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or
(ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,
determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(f)    in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
In order to understand the appellant’s argument, it is necessary to set out a chronology of the history leading to the appellant’s plea of guilty to the charge of robbery.
The offence of robbery was committed by the appellant on 6 June 2017. He was, however, charged with aggravated robbery in company in relation to this offence and on 13 December 2017 was committed to the District Court for trial. He appeared in the District Court in relation to that charge of aggravated robbery in company on 2 February 2018 and pleaded not guilty at arraignment. On 27 April 2018, other matters having been dealt with, following negotiations with the Director of Public Prosecutions, the appellant indicated his intention to plead guilty to the common law alternate offence of robbery in relation to the 6 June 2017 offence. On 2 May 2018, the Director of Public Prosecutions filed a replacement Information in the District Court charging both the appellant and his co-defendant with aggravated robbery in company in relation to the 6 June 2017 offending, but laid an alternative charge in relation to the co-accused of assault to which he pleaded guilty. On that day, the appellant pleaded not guilty to aggravated robbery in company but guilty to robbery simpliciter and, as indicated, the co‑defendant pleaded guilty to assault. Other than adding the alternative charge of assault in relation to the co-defendant, that Information was in the same terms as the original Information of aggravated robbery in company.
The appellant argues that the time for determining when the appellant first appears in court in relation to the relevant offence was on 2 May 2018, because it was then that he pleaded guilty to the basic offence of robbery. Consequently, the maximum by which the sentence could be reduced was 40 percent pursuant to s 10C(2)(a) of the CLSA. The respondent argues that when the appellant was arraigned in the District Court on 2 February 2018, he could have pleaded guilty to the alternate charge of robbery having pleaded not guilty to the charge as laid, which is what he in fact did on 2 May 2018. Therefore, it is argued that he first appeared in relation to the relevant offence on 2 February 2018 and the reduction according to s 10C(2)(a) of the CLSA was not applicable.
There is no dispute that robbery is an automatic alternative to the offence of aggravated robbery at common law. It is also undisputed that a defendant can plead guilty to robbery having pleaded not guilty to aggravated robbery when arraigned. Whether that is accepted by the prosecution or not is another matter. In my view, the law of this State is clearly settled in establishing that a defendant who appears in answer to an Information charging an offence also appears in relation to any alternative offence to which he or she could plead guilty. A defendant can do so without the Information in fact being amended or changed, and it is to be noted that in this sense that is what was done as the terms of the charge in relation to the appellant were the same. This principle is clearly established by the case of R v Muldoon,[2] where his Honour the Chief Justice said, “I would hold that a defendant who appears in answer to an Information charging an offence or offences also appears in relation to those alternative offences to which he or she could plead guilty”.
[2] (2015) 123 SASR 1 at 6.
Mr Moen, of counsel, referred to the authority of R v Ballam,[3] where this Court held that where circumstances of aggravation changed in relation to a charge of attempted aggravated serious criminal trespass in a place of residence and in those circumstances when the defendant pleaded after those changes were made to the details of aggravation, it was then that the defendant’s position is restored so that he got a maximum of 40 percent for the purposes of s 10C of the CLSA. It is to be noted that the case of Muldoon was not referred to either in argument or in the judgment of the Court. However, the circumstances are different in that at an earlier stage in Ballam it would have been impossible to plead to the behaviour which the defendant in that case ultimately pleaded to because it was not available until the amendment was made. In the present case, such a plea was available because the basic offence was an alternative to the aggravated offence as charged.
[3] (2016) 126 SASR 189.

In my view, the sentencing Judge has not erred in the amount of reduction he gave for that count.
I can deal briefly with the remaining grounds for which permission was not given. As I have indicated, there is no dispute that the Judge erred in treating the second driving under disqualification as a subsequent offence for the purposes of setting the maximum penalty. However, I agree with the respondent’s argument that even with the maximum penalty of six months, to brazenly commit the offence of driving whilst disqualified shortly after being warned and charged on a previous occasion for the same offence, places that offence in a serious category of its type. In my view, the starting sentence of 30 days’ imprisonment is not manifestly excessive or indeed inappropriate.
In my view, it could not be argued that the sentence either for the charge of robbery or the total head sentence is manifestly excessive. Like the sentencing Judge who considered in his reasons those matters personal to the appellant very carefully, I have taken those into account. Especially, his age (21 years) and his relatively small criminal history. Also, those matters set out by Dr Jack White. However, I cannot agree that the charge of robbery is less than very serious. In this case, a terrified woman, alone, was accosted in her car and at least physically handled and her phone was taken. Although the offence was not committed in company, she would have been clearly aware that there was another person in the background. In my view, it could not be reasonably argued that either the penalty imposed for robbery nor the overall penalty is manifestly excessive.
I am also of the view that the sentencing Judge has not erred in accumulating the sentences. Each offending was quite separate from the others and involved a separate breach of the law.
Conclusion
On grounds 1, 4 and 5, I would refuse permission to appeal and dismiss the appeal.
On ground 2, I would dismiss the appeal.
On ground 3, I would grant permission to appeal but dismiss the appeal.