SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DWYER
[2015] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
16 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Appeal against sentence.
The appellant pleaded guilty at committal to four counts of aggravated robbery. Two counts were committed on 13 February 2014 and two counts were committed on 15 February 2014. At the time of the offending the appellant was on parole for earlier offences of aggravated robbery, serious criminal trespass and theft. The appellant was sentenced to a single term of imprisonment in respect of all offending. After a reduction of 25 per cent in respect of the guilty pleas, the sentencing judge fixed a sentence of 13 years and six months imprisonment. To this was added the unexpired balance of the sentence for which the appellant was on parole of three years, six months and nine days. This resulted in a head sentence of 17 years and nine days. A non-parole period of nine years was fixed.
Whether the head sentence and non-parole period imposed were manifestly excessive. Whether the Judge erred in failing to give adequate reasons for selecting a reduction of 25 per cent for the pleas of guilty.
Held per Stanley J (Kourakis CJ and Gray J agreeing) allowing the appeal:
1. No error demonstrated in the commencement point adopted by the Judge in sentencing the appellant (at [23]).
2. The Judge fell into error in the approach taken to fixing the discount for the pleas of guilty. The Judge erred in failing to afford the appellant the entire discount permitted by s10C(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA). The Judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum discount available (at [34]).
3. There was scope in this case for the Judge to adopt an approach of partial concurrence in sentencing the appellant on counts 1 and 2 (at [44]).
4. Appeal allowed. Appellant resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10C; Criminal Law Consolidation Act 1935 (SA) s 137, referred to.
Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; R v Place (2002) 81 SASR 395; R v Khim [2002] SASC 343; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103; R v Dorning
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- R v Dwyer [2015] SASCFC 12
- Case
- [2015] SASCFC 12
- Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal was required to determine whether the sentencing judge had erred in principle or imposed a sentence that was so disproportionate as to be manifestly unreasonable. This involved considering the appropriate sentencing range for armed robberies, particularly those involving threats of violence against vulnerable victims, and the relevance of the appellant's prior offending and parole status.
The Court applied the principles established in cases such as *R v Place*, which identified a standard sentencing range of six to eight years imprisonment for armed robberies of shops involving the use or appearance of weapons, particularly when committed by drug-addicted offenders to fund their addiction. The Court emphasised that general deterrence and public protection are paramount in such cases. While acknowledging that the standard range is not inflexible, the Court found that the circumstances of Dwyer's offending, including the use of a knife and machete and his recent relapse into serious crime while on parole, warranted a significant term of imprisonment. The Court also considered the sentencing judge's approach to calculating the head sentence, noting that while the judge did not identify separate notional sentences for each offence, the adopted starting point of 18 years was not demonstrably wrong and could be considered merciful.
The Court allowed the appeal, reducing the head sentence to 11 years, six months, and eighteen days. It also adjusted the non-parole period to eight years and ordered that the total sentence, including the unexpired balance of a previous sentence, be 15 years and twenty-seven days, commencing from 13 February 2014.
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
Ratio Decidendi
Legal Principle Established
Established by: GRAY J
This approach was further explained in Dinsdale v The Queen[3] by Kirby J, who said:[4]As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[Citations omitted].[3] [2000] HCA 54, (2000) 202 CLR 321.[4] [2000] HCA 54 at [59], (2000) 202 CLR 321 at 340.Consideration In R v Place[5] the Court of Criminal Appeal underlined that armed robberies of, inter alia, shops where weapons or objects that appear to be weapons are used to threaten victims are prevalent crimes committed against vulnerable persons. Such crimes are frequently committed by persons addicted to and affected by alcohol or other drugs, who commit these offences in order to obtain funds to satisfy their addictions. The Court said that in fixing sentences for such crimes, considerations of general deterrence and the protection of the public are of particular importance. The Court considered that the standard penalty appropriate for these types of armed robberies, committed by these types of offenders, is in the order of six to eight years of imprisonment.[6] The Court said further:[7]The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending. [5] [2002] SASC 101, (2002) 81 SASR 395.[6] [2002] SASC 101 at [100], (2002) 81 SASR 395 at 429.[7] [2002] SASC 101 at [101], (2002) 81 SASR 395 at 429. The approach in Place has been subsequently reaffirmed by the Court of Criminal Appeal.[8] Moreover, the approach in Place echoed a long line of authority to the same effect.[9][8] R v Khim [2002] SASC 343, R v Randall-Smith and Davi [2008] SASC 99, (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103.[9] R v Dorning (1981) 27 SASR 481 at 481 - 484; DPP v Fermaner (1994) 61 SASR 447; R v Drumgoon (Unreported, Court of Criminal Appeal of South Australia, delivered 13 December 1995). While the standard in Place is not to be applied inflexibly, there is nothing in the circumstances of this case that warranted any significant departure from the sentencing standards. In my view, this was serious offending. The use of a knife in count 1 and the use of a machete in counts 3 and 4 must have been terrifying for the victims. The fact the appellant was on parole for previous offending of a similar character is relevant. He had been on parole for only a little more than two weeks. This early relapse into serious offending warranted the imposition of a significant term of imprisonment for reasons of both specific and general deterrence. The need for specific deterrence is further emphasised by what the sentencing judge accurately described as the appellant’s appalling criminal record stretching back many years. The court is obliged to impose penalties that afford some protection to the community from addicts who are prepared to threaten serious injury to vulnerable victims to obtain money or other property for the purposes of funding their drug habit. The learned sentencing judge did not identify separate notional sentences for each offence in adopting a commencement point of 18 years of imprisonment. Utilising the bottom of the Place standard range, it would appear that the sentencing judge may have treated the offending in counts 3 and 4 on 15 February 2014 as being so closely related to each other as to fix a notional starting point by making the sentence for each of count 3 and 4 wholly concurrent so as to arrive at the overall starting point of 18 years for each of the four offences. Such an approach was open and can be considered merciful.