R v Flentjar

[2003] SASC 361

R v FLENTJAR
[2003] SASC 361

Court of Criminal Appeal:  Doyle CJ, Prior and Vanstone JJ

1. DOYLE CJ:          I grant leave to appeal and would allow the appeal.  I agree with the orders proposed by Vanstone J and with the reasons given by her for so deciding.

2. PRIOR J:              I agree with the reasons given by Justice Vanstone and with the orders proposed.

3. VANSTONE J:     This is an appeal against sentence.  A judge of this court granted leave to appeal on three grounds of appeal, but refused leave to appeal on the first two grounds of appeal in the appellant’s notice of appeal.  The application for leave to appeal on the first two grounds was renewed to this court.

4. The appellant was found guilty in the District Court of two counts of armed robbery, an offence attracting a maximum penalty of life imprisonment. The learned sentencing judge imposed a single sentence pursuant to section 18A Criminal Law (Sentencing) Act 1988 of eleven years and seven months imprisonment and fixed a non-parole period of eight years and seven months.  Credit was given for five months in custody prior to sentence.

5. The first armed robbery was committed at about 11.00 pm on 3 April 2000 at the BP service station at Mile End.  The appellant entered the store brandishing a .22 calibre sawn-off rifle and demanded money from the till.  The female console operator and several customers were threatened with the rifle.  Money totalling $295 was taken.  The appellant fled the scene in a car driven by another person. 

6. The second armed robbery occurred on 26 May 2000, soon after 9.00 pm.  Again armed with a .22 sawn-off rifle, the appellant, together with another person, approached the reception desk of the South Park Motor Inn.  The weapon was levelled at the female receptionist and money was demanded.  She handed over $200.  Both men then fled.  Such a weapon, loaded and cocked, was found later in a garden bed in the south parklands, not far from the robbery scene.  The learned sentencing judge found beyond reasonable doubt that this was the weapon used by the appellant in both robberies, and further, that on each occasion it was loaded.

7. At the time of the robberies the appellant was a little over 19 years of age.  By the time of sentence he was 21 years old.

8. The grounds of appeal assert that the sentencing process was attended by error and also that the sentence imposed was manifestly excessive.

9. I turn first to the grounds which attracted a grant of leave.  Ground 3 complains of the judge’s finding that the rifle used in the first robbery was loaded and cocked.  There was no complaint of the finding that the same weapon was used in both robberies.  That finding was supported by security videos taken during the robberies and which showed the firearm being brandished and evidence from a ballistics expert who viewed those videos and examined the weapon found in the parklands.  The ammunition within that rifle matched ammunition found at premises where the appellant was living. 

10. Evidence available to support the additional finding made by the judge was that of one of the customers at the Mile End scene, who described the rifle as “a .22 single shot with a sawn-off barrel and the firearm was pulled back in a ready to fire situation”.  That witness described himself, in cross examination, as a licensed gun owner who formerly owned a .22 rifle.  In addition, inasmuch as there were similarities in the way in which the two robberies were carried out, the fact that the weapon when used at South Terrace was loaded, could imply that when the same weapon was used at Mile End, it was similarly loaded.  In these circumstances the finding made by the judge was, in my view, well open to him.

11. The next ground was a complaint that the judge erred in taking into account as a circumstance of aggravation that at the time of the commission of the two robberies the appellant was subject to a bond associated with a three month suspended sentence.  That bond was entered into on 17 February 2000, some six weeks prior to the first armed robbery.  On 27 November 2001 the appellant was dealt with in the District Court by a different judge in relation to numerous offences, including attempting to escape from custody committed on 15 February 2001.  On the basis of conviction for that offence, the District Court judge estreated the Magistrates’ Court bond and ordered that the suspended sentence be carried into effect.  At that time a total sentence of just under two years imprisonment, with a non-parole period of fourteen months, was imposed, the judge having taken into account that the appellant had been in custody since 4 January 2001.  That sentence expired on 26 January 2003 after which time the appellant remained in custody on remand for the two robberies.

12. 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.

13. Allied with this complaint was ground 5 which was presented by way of an argument that by reason of being dealt with by different judges on two separate occasions, the appellant now faces a longer sentence than might have been imposed had all offences been before the court on 27 November 2001.  Of course the reason all offences were not collected before the one judge is that the appellant exercised his right to go to trial on the two robbery charges.  Had he pleaded guilty to those, then undoubtedly his sentence for them would have been less.  But in the final analysis this court can only consider the sentences imposed in the circumstances which in fact obtained.  No error of fact or approach has been disclosed in this regard.  This argument really amounts to an assertion that the sentences were manifestly excessive, being the complaint raised in grounds 1 and 2. 

14. I turn then to those grounds.  As mentioned, the appellant did not have leave to appeal on grounds 1 and 2.  When hearing submissions on the application for leave to appeal on those grounds, the court heard argument in full. Counsel for the appellant laid emphasis on the appellant’s age at the time of the commission of the offences, his long-standing addiction to amphetamine and heroin, and his attempts to further his education and overcome drug dependency whilst in custody.  All these matters were referred to at some length by the learned sentencing judge.  Against these matters had to be weighed a distressingly bad history of offending as a child, including convictions for armed robbery in 1996 and 1997 – both attracting detention orders – and various failures to respond to previous opportunities for rehabilitation.

15. The judge approached the matter by referring to the usual range for offences of this type as being six to eight years imprisonment.  That range has been accepted by this court over many years:  R v Dorning (1981) 27 SASR 481; R v Place (2002) 81 SASR 395. Having regard to the aggravating circumstances already mentioned, the judge determined that a starting point of eight years for each offence was appropriate, but he then had regard to the totality principle and decided on one sentence of twelve years, before reducing it for the months spent in custody. A non-parole period of nine years was similarly reduced by reference to that time on remand.

16. In the end, an examination of the method by which the judge arrived at the final sentence is very much secondary to the question of whether that sentence is manifestly excessive, having regard to the mitigating factors and to the fact that the appellant had been in custody in relation to the separate offences since January 2001.  Put bluntly, it is likely that by the time of his release the appellant will have spent as much as eleven years – taking in all his twenties – in gaol.  On any view that is a very heavy sentence for such a young man.

17. In my view there can be no valid complaint though in relation to the head sentence.  These were grave crimes and the appellant could not claim credit for previous good character nor for pleas of guilty. 

18. However the question of the non-parole period stands rather differently.  It is necessary for the non-parole period to serve the punitive and deterrent aspects of punishment.  Whilst his conduct up to the time of going into custody does not engender confidence as to his future, it is to be hoped that as he matures the appellant will achieve some insight into his behaviour and the futility of continuing in it once released.  I think the sentence should have allowed the appellant a substantial time on parole while still a relatively young man to enable him to make a fresh start.  For that reason I have concluded that the non-parole period is excessive.  I think that the learned sentencing judge must have attached too little weight to the time the appellant had already spent in custody and to his youth and the prospects of rehabilitation.

19. I would therefore grant leave to appeal on grounds 1 and 2, allow the appeal and set aside the sentence.  I would impose the same head sentence as fixed by the sentencing judge, being eleven years and seven months imprisonment, but I would fix a non-parole period of six years.  As before, the sentence should date from 25 June 2003.