R v Dunk

[2008] SASC 290

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DUNK

[2008] SASC 290

Judgment of The Court of Criminal Appeal

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

31 October 2008

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

Appeal against sentence - appellant jointly charged on information with another defendant with three offences of committing theft using force - both accused pleaded guilty to the offences and were sentenced in the District Court to the same penalty with respect to the offending: a term of imprisonment of two years and six months with a non-parole period of 10 months - appellant and his co-accused who was aged 21 years had materially different antecedents: appellant was aged 18 years, had good rehabilitation prospects, and his co-accused had committed these offences in breach of a good behaviour bond - whether the appellant's sentence should have been suspended.

Held:  appeal allowed - sentencing Judge’s discretion, in determining not to suspend the appellant’s sentence, miscarried - Judge did not recognise that the other defendant's breach of bond was an aggravating circumstance - not appropriate to impose the same sentence - Judge did not have proper regard to the age, unblemished record, and rehabilitation prospects of the appellant - appellant's sentence suspended on his entering into a three year supervised good behaviour bond with conditions - appellant to undertake 100 hours of community service.

Criminal Law Consolidation Act 1935 (SA) s 137, s 270B and s 353, referred to.
Readman (1990) 47 ACrimR 181; R v Flentjar [2003] SASC 361, considered.

R v DUNK
[2008] SASC 290

Court of Criminal Appeal         Gray, Sulan and David JJ

THE COURT

1. This is an appeal against sentence. 

   Background

2. The defendant and appellant, Mason Hamilton Dunk, was jointly charged on information with Stephen John McKee with three offences of committing theft using force contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).[1] Each was said to be an aggravated offence within the meaning of the section. There was a further charge of assault with intent to commit an offence contrary to section 270B(1) of the Criminal Law Consolidation Act.[2] 

   [1] Section 137(1) of the Criminal Law Consolidation Act 1935 (SA) provides:

   “A person who commits theft is guilty of robbery if—

   (a)     the person—

   (i)uses force, or threatens to use force, against another in order to commit the theft; or

   (ii)uses force, or threatens to use force, against another in order to escape from the scene of the offence; and

   (b)the force is used, or the threat is made, at the time of, or immediately before or after, the theft.

   Maximum penalty:

   (a)     for a basic offence—imprisonment for 15 years;

   (b)     for an aggravated offence—imprisonment for life.”

   [2] Section 270B(1) of the Criminal Law Consolidation Act 1935 (SA) provides:

   “Subject to subsection (2), a person who assaults another with intent to commit an offence to which this section applies is guilty of an offence.”

3. The appellant and Mr McKee pleaded guilty to the offences and were both sentenced in the District Court to the same penalty with respect to the offending.  In each case a head sentence was imposed of two years and six months and a non-parole period fixed of 10 months.  Neither sentence was suspended. 

4. Mr McKee’s conduct breached an earlier suspended sentence good behaviour bond.  The sentencing Judge revoked the suspension of that six week sentence and directed that the sentence of two years and eight months be cumulative on that revoked suspended sentence.  We will return to discuss the implications that flow from the way in which the Judge sentenced the appellant and Mr McKee later in these reasons.

5. The circumstances of the offending were not disputed.  Mr McKee, then aged 21 years, and the appellant, then aged 18 years, had engaged in heavy drinking during the night of 13 September 2007 and the early morning of 14 September 2007.  They had run out of money and wanted to obtain further funds to purchase more alcohol.  It was against this background that the offending occurred.  The appellant’s behaviour was materially affected by alcohol.

6. The four offences occurred in the morning of 14 September 2007.  At about 7.40am the appellant and Mr McKee approached a schoolboy who was leaving his vehicle to walk to his school.  The appellant and Mr McKee threatened the boy, which led to the boy handing over $5.00.  Mr McKee then seized the boy’s bag, searched it and seized his mobile phone.  The boy was threatened that if he tried to identify their vehicle they would “beat him up”. 

7. Shortly thereafter, at about 7.45am, another boy, a boarder at the same school, was walking to the boarding house to have breakfast.  The appellant and Mr McKee approached the boy and demanded money.  The boy had no money with him, and in emptying his pockets revealed his mobile phone.  Mr McKee seized the mobile phone and then the appellant and Mr McKee threatened the boy and left. 

8. At about 8.30am, the appellant and Mr McKee approached a young man walking in the Botanic Gardens park.  They demanded money and the young man replied that he would not give them any.  Mr McKee threatened him with violence, and as the young man was about to flee, the appellant punched him in the mouth.  The young man then fled.  The appellant and Mr McKee followed, but after a short while gave up the chase. 

9. The final offence occurred about 8.45am when the appellant and Mr McKee approached two schoolboys in their school grounds.  They followed the boys onto an oval.  Mr McKee threatened one of the boys with violence and the appellant then grabbed the boy’s bag, pulling it off his back, and then left with the bag.  The boys were told not to follow them or take their car registration or he would be subjected to violence.

10. At about 9.00am the police apprehended the appellant and Mr McKee.  The appellant and Mr McKee admitted their criminal conduct and were then charged with the offences to which they later pleaded guilty. 

11. The sentencing Judge reviewed the appellant’s antecedents.  He was a first offender and, as earlier observed, was aged, as the Judge put it, “only 18 years old at the time”.  He was inebriated and had consumed two ecstasy tablets.  He did not have a clear memory of the events.  Once he had sobered up he acknowledged that his behaviour was stupid and thoughtless.

12. A psychological report was tendered which indicated that the appellant had a history of an attention deficit disorder that required treatment in his early teenage years.  He was expelled from school because of graffiti.  He apparently developed an intense dislike for school and felt that he did not fit in.  He then attended another school in Year 10 and an adult college in Year 11.  However, he effectively dropped out of Year 11 and failed. 

13. The appellant had a long history of alcohol abuse and experimented with a wide range of drugs.  However, with the exception of alcohol, he has ceased to use drugs.  In the psychologist’s opinion, he met the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mode and alcohol abuse.  It was the opinion of the psychologist that if the appellant could take advantage of a suitable assessment and treatment program as an adult, his risk of recidivism was likely to be significantly reduced. 

14. Prior to the offending the appellant had lived away from home but following the offending he had returned to live with his parents.  He has a deep regret for his actions, has provided a written apology to his victims, feels sick from guilt for what he did and is determined to take positive steps to rectify his life.  He has support from his parents.  Employment as a trade assistant is available to him.  Pending sentence he had impressed his employer.

15. The Judge then proceeded to sentence the appellant and in doing so said:

    The maximum penalty for your three aggravated robberies is imprisonment for life.  For your offence of aggravated assault with intend to commit an offence the maximum penalty is imprisonment not exceeding 12 years.

    I have no doubt that a sentence of imprisonment is warranted for both of you, for your offending on 14 September 2007.  I do not consider that I should differentiate between each of you in the sentence I shall impose.  You Mr McKee will be dealt with separately on the application to enforce your breached bond.

    I start with a single sentence of imprisonment for each of you for four years.  This is intended to reflect your youth and those circumstances of your offending which put each of your offences towards the lower end of offences of this type.  Those matters have to be balanced against the fact that three of your victims were school boys and the fourth was a young man who was punched in the mouth when he tried to escape from you.

    I reduce that sentence to a head sentence of imprisonment for two years and six months to reflect your very early pleas of guilty and your contrition and remorse.

    On that head sentence I fix a non-parole period of imprisonment for 10 months.  That is also intended to reflect those matters which are favourable to you.

    Whilst recognising that much has been said in favour of both of you to support the suspension of those sentences of imprisonment, I consider that in the circumstances of your offending insufficiently good reason exists to do so.  The fact that you each committed these offences over a period of about an hour, the fact that you targeted school children and another young man, and the fact that you threatened them with violence, either expressly or by your conduct, make your offending too serious to suspend your sentences of imprisonment.

    In your case Mr McKee, in addition to the sentence of imprisonment I have just imposed I revoke the suspension of your sentence of imprisonment for six weeks which was imposed upon you on 23 May 2007.  That sentence of imprisonment will be served cumulatively and will be in addition to your non-parole period of imprisonment for 10 months for the offences you committed with Mr Dunk.

    It is inappropriate to make any order for compensation.

    The Appeal

16. The complaint on appeal related to the failure of the sentencing Judge to exercise his discretion to suspend the sentence.  No complaint was advanced that the head sentence and non-parole period were not appropriate.  Counsel for the appellant submitted that errors of principle occurred in the process followed by the sentencing Judge.  It was further contended that in any event, having regard to the age and antecedents of the appellant, the exercise of the discretion not to suspend the sentence miscarried. 

17. As earlier observed, the sentencing Judge considered that he should not differentiate between the appellant and Mr McKee when sentencing.  The Judge made it clear that he was going to deal separately with the application against Mr McKee to revoke his suspended sentence of imprisonment.  Counsel for the appellant submitted that this approach involved error.  It was argued that when an offence is committed in breach of a good behaviour bond, that breach is a circumstance of aggravation with respect to the subject offending.  It was said that Mr McKee’s offending in the present proceedings was aggravated by the fact that his conduct breached his good behaviour bond.  Attention was drawn to the following observations of Maxwell J in Readman[3] – observations with which Gleeson CJ and Samuels JA agreed:

    [3]    Readman (1990) 47 ACrimR 181at 184-185.

    This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence. This Court has stated on many occasions that offences of armed robbery are very serious: see Valentini (1989) 46 ACrimR 23 in which the court approved of the statement of Lee CJ at CL in Murray (unreported, 11 September 1986), where he observed that “Robbery, whether with or without arms, would be regarded in virtually all circumstances as an offence of utmost gravity”.

    In Wells (unreported, Court of Criminal Appeal, NSW, 19 April 1989) Yeldham J observed (at p 4):

    “The respondent was on parole for a number of similar offences at the time and this Court has stated time and again, ... that sentences which are weakly merciful must not be passed in the case of serious crime, especially where those involved have previously been convicted of such crimes. If the courts are to play their proper role in endeavouring to stamp out offences such as armed robbery, then lengthy custodial sentences must be imposed.”

    See also the observations of the Chief Justice in Begnall (unreported, 28 March 1985) (at p 4):

    “The objective circumstances include the very serious element that the credit union armed robbery was committed whilst the appellant was free on bail awaiting the hearing of the earlier robbery offence. The significance of this abuse of freedom on bail in order to commit further offences has many times been emphasised.”

    This authority was applied by this Court in Flentjar[4] where Vanstone J observed:

    It is well established that where an offence is committed in breach of a good behaviour bond, that is a circumstance of aggravation:  R v Readman (1990) 47 A Crim R 181, 184. That remains so irrespective of how many times the bond is breached and whether bond is ultimately estreated by reference to a different breaching offence. In my view the judge correctly had regard to that circumstance of aggravation.

    In these circumstances it was contended that a clear basis existed to differentiate between the appellant and Mr McKee.

    [4]    R v Flentjar [2003] SASC 361 at [12] (Vanstone J, with Doyle CJ and Prior J agreeing).

18. The Director of Public Prosecutions acknowledged the effect of the above authorities.  It was accepted that there was a need to differentiate between the appellant and Mr McKee, and in particular, an aggravating circumstance existed in the case of Mr McKee that did not exist in the case of the appellant.  The Director also accepted that the sentencing Judge was obliged to explain why, in this circumstance, there was no need to differentiate in the sentence to be imposed on the appellant and Mr McKee.  The Director then submitted that, in any event, because of the seriousness of the offending, the sentence imposed was the appropriate sentence and that the circumstances were too grave to allow for the sentence of imprisonment to be suspended.

19. It is the view of this Court that the sentencing Judge erred in his application of sentencing principle.  The sentences to be imposed on the appellant and Mr McKee required separate consideration of their individual circumstances.  It was open to the Judge to take the view that their criminal culpability was substantially the same.  Each was involved effectively as an equal participant in the four crimes.  The antecedents of the appellant, however, were very different to the antecedents of Mr McKee.  The appellant was only aged 18 years.  The psychological report, the reference from his employer, and his material changes in lifestyle since the offending all suggest that he has good prospects of rehabilitation.  Mr McKee was 21 years of age, and at the time of the offending, was subject to a suspended sentence good behaviour bond.  Although Mr McKee was dealt with separately with respect to the breach of bond, it did remain a relevantly distinguishing feature between his antecedents and those of the appellant. 

20. It is the view of this Court that the sentencing Judge’s discretion, in determining not to suspend the appellant’s sentence, miscarried.  The Judge failed to have proper regard to the age, unblemished record, and rehabilitation prospects of the appellant.  It was an error on the part of the Judge to proceed on the basis that there was no difference between the appellant and Mr McKee, in the circumstance of Mr McKee’s prior conviction and suspended sentence good behaviour bond.

21. Section 353(4) of the Criminal Law Consolidation Act, in so far as it relates to appeals against sentence, relevantly provides:

    [O]n an appeal against sentence, the Full Court must—

    (a)     if it thinks that a different sentence should have been passed—

    (i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

    (ii)     quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

    (b)     in any other case—dismiss the appeal.

    Accordingly, an appellate court must only interfere with a sentence if it thinks that a different sentence should have been passed.  Otherwise, the court must dismiss the appeal.  The decision concerning the suspension of the sentence forms part of the sentencing process.

22. In the present case, this Court is of the opinion that a different sentence should be passed on the appellant, having regard to the circumstances of the offending, the appellant’s age, his unblemished record, the contents of the psychological reports, his change of lifestyle, and his prospects for rehabilitation.  This Court considers that good reason exists to suspend the sentence of imprisonment imposed on the appellant.  As the Court has engaged in a reconsideration of the discretion, it is also appropriate to have regard to the fact that the appellant has spent some weeks in custody pending the decision on this appeal.

23. It is the view of this Court that the suspended sentence bond should be a three-year supervised good behaviour bond, that the appellant should undergo such courses as to drug and alcohol abuse, victim awareness, and otherwise, as his supervising correctional services officer may recommend.  It is to be a further condition of the bond that the appellant undertake 100 hours of community service in the 18 month period following his entry into the bond, as directed by his correctional services officer.

    Conclusion

24. This appeal is allowed.  The sentence imposed by the District Court Judge is suspended on the defendant entering into a supervised three-year good behaviour bond on the terms earlier referred to.