R v Gannon - [2012] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GANNON
[2012] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
22 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to attempted robbery contrary to s 137 and s 270A of the Criminal Law Consolidation Act 1935 (SA) - appellant sentenced to five years imprisonment with a non-parole period of three years - whether sentence was manifestly excessive.
Held (by majority): appeal dismissed - final sentence imposed, though severe, was within the available range of sentences given the serious nature of the offending.
Criminal Law Consolidation Act 1935 (SA) s 137, s 155, s 158, s 270A, s 285BA(6); Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA), referred to.
R v Van Huizen (unreported, Supreme Court of South Australia, Court of Criminal Appeal, 23 February 1990); R v Betts [2011] SASCFC 27; R v McGlynn [2011] SASCFC 74; R v Blackmore [2004] SASC 298, discussed.
Wong v The Queen (2001) 207 CLR 584; R v Drumgoon [1995] SASC 5382; R v Payne (1994) 177 LSJS 345, considered.

R v GANNON
[2012] SASCFC 56
Court of Criminal Appeal: Doyle CJ, Vanstone and Kourakis JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Vanstone J for so ordering. There is nothing that I wish to add.
VANSTONE J: The appellant pleaded guilty in the District Court to attempted robbery, contrary to s 137 and s 270A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He attempted to steal a cash register in a restaurant in Sturt. The maximum penalty for attempted robbery is 10 years imprisonment; for a completed offence it is 15 years.
At the time of the offending the appellant was 25 years old. He had an extensive criminal history. The judge imposed a head sentence of five years imprisonment, having given the appellant one year’s credit for his plea of guilty. He fixed a non-parole period of three years.
The appellant argues that the sentence was manifestly excessive.
Background
The incident the subject of the offending occurred on the evening of 9 February 2010. The appellant entered a takeaway restaurant wearing a rubber “Freddy Krueger” mask. He jumped over the counter and tried to remove the cash register. He failed, as the register was fastened by a number of cables precluding its easy removal. The appellant was then confronted by the proprietor, Mr Lam, who refused to hand over any money. The appellant swung the register at Mr Lam in an attempt to hit him, but missed. Mr Lam then hit the appellant on the head with a stick, prompting him to jump back over the counter and flee. The incident was captured on the store’s closed-circuit television footage; it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gannon

Details

AGLC: R v Gannon [2012] SASCFC 56
Case: [2012] SASCFC 56
Decision Date: 22 May 2012

CaseChat Overview and Summary

The appeal in *R v Gannon* concerned a sentence imposed on the appellant for an attempted robbery. The incident involved the appellant entering a takeaway restaurant wearing a mask, attempting to steal the cash register, and then swinging the register at the proprietor when confronted. The appellant was subject to a good behaviour bond and suspended sentence at the time of the offence. The appeal was brought before the Supreme Court of South Australia, constituted by Doyle CJ, Vanstone and Kourakis JJ.

The primary legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. The appellant argued that the sentencing judge's starting point of six years imprisonment was disproportionate to the offence, suggesting it was more akin to a completed armed robbery. Further arguments included a submission that the prosecutor had incorrectly referred to the maximum penalty for an aggravated offence, and that insufficient weight had been given to the appellant's personal circumstances and signs of rehabilitation.

The court dismissed the appeal, finding no force in the appellant's arguments. Doyle CJ noted that the offence was serious and frightening, committed by an individual with prior convictions for violence and who was already under a suspended sentence and good behaviour bond. While acknowledging that a starting point of six years was at the upper end of the available range, the court emphasised that the final sentence was within the permissible range. The court considered the discount given for the appellant's guilty plea, entered on the day of trial, to be extremely generous, particularly given the strength of the evidence and the appellant's failure to respond to a notice to admit facts. Kourakis J elaborated on sentencing principles, highlighting the importance of the statutory maximum penalty as a yardstick and the principle of consistency in treating like cases alike, while also acknowledging the inherent subjectivity and diversity of circumstances in sentencing.

Orders

Orders of the court

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Background

Background to the litigation

The appellant argues that the sentence was manifestly excessive. Background The incident the subject of the offending occurred on the evening of 9 February 2010. The appellant entered a takeaway restaurant wearing a rubber “Freddy Krueger” mask. He jumped over the counter and tried to remove the cash register. He failed, as the register was fastened by a number of cables precluding its easy removal. The appellant was then confronted by the proprietor, Mr Lam, who refused to hand over any money. The appellant swung the register at Mr Lam in an attempt to hit him, but missed. Mr Lam then hit the appellant on the head with a stick, prompting him to jump back over the counter and flee. The incident was captured on the store’s closed-circuit television footage; it lasted less than a minute. The appellant was arrested later that evening in Glenelg. At the time of the offending the appellant was subject to an 18 month good behaviour bond associated with a suspended sentence of two months imprisonment. That sentence was imposed in the Magistrates Court in June 2009 for carrying an offensive weapon, assault and recklessly causing harm. The sentencing judge revoked the suspension of that sentence.Arguments on appeal On the appeal, Mr Mancini, for the appellant, argued that the sentence was out of step with other sentences for like offences. It was submitted that the starting point indicated by the judge, of six years, was what might have been expected for a completed armed robbery. As an aspect of that argument, it was noted that during submissions on sentence the prosecutor, in advising the judge as to the maximum penalty, referred to the penalty for an aggravated offence; whereas this was a basic offence. He told the judge that the maximum for this offence was 15 years imprisonment, whereas it was 10 years. It was also put that there was much to be said in favour of the appellant on a personal level; that there were positive signs of rehabilitation which should have been reflected in the sentence.Analysis I do not think that there is any force in the appellant’s arguments. This was a serious and frightening attempt to steal money from business premises which were not protected by security and where it would be expected that resistance might be encountered. The attempt was only frustrated by the determination of the proprietor to prevent the robbery. The offence was committed by a man who had had the benefit of a suspended sentence and who was then subject to a bond to be of good behaviour in relation to that sentence. He was also a man who had previously committed robberies and offences of violence. While I agree that a starting point of six years was at the upper end of the range available for this offence, it is the final sentence which is to be considered for the purposes of the appeal. In this regard the Court is entitled to note that the discount given for the appellant’s plea of guilty was extremely generous. A discount of one year in six where the evidence against the offender was extremely strong and where the plea was entered on the day of trial – and indeed in circumstances where a trial date had previously been set and the trial unable to proceed – is generous to a fault. It is also relevant in this connection that a notice to admit facts issued by the Director of Public Prosecutions with a view to narrowing the issues at trial was simply not answered by the appellant. Section 285BA(6) of the CLCA provides that the failure to make an admission in response to such a notice can be taken into account in these circumstances.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Sentencing is not a science. In every case there is a penalty range available to the court. In my opinion the final sentence imposed was within the available range.Conclusion For the reasons given, I would dismiss the appeal. KOURAKIS J: Even though sentencing is a discretionary exercise, the results of which are not uniform, even in similar cases, the process is not predominantly, or even largely, subjective. Despite the obvious difficulties in achieving a high degree of certainty in sentencing there are two fundamental and objective considerations which, by and large, determine the range within which the sentence in any particular case must fall. The first is the statutory maximum penalty. The maximum penalty serves a much more important purpose than merely delineating the outer boundary of the sentencing power. The maximum is a yardstick which invites comparison between the worst possible case and the case before the court. It is meaningless to speak of fixing a sentence that is proportionate to the gravity of the crime in the absence of a maximum penalty. The next reference point is the principle of consistency which demands that like cases should be treated in a like manner. In Wong v The Queen[1] Gleeson CJ explained:“All discretionary decision–making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”[2][1] (2001) 207 CLR 584.[2] Wong v the Queen (2001) 207 CLR 584, 591[6]. The diversity of circumstances in which offences are committed means that precision in the hierarchical rating of offences is not possible. The relative importance of general deterrence and the scope for rehabilitation may vary over time and from case to case. Additionally, it is the very point of a discretion that there is room for a reasonable difference of opinion as to how those circumstances should be balanced. Even though absolute certainty is elusive the principle of consistency demands that consideration be given to comparable cases. Turning to a review of the exercise of the discretion in this case, I first observe that the maximum penalty for the offence of attempted robbery is 10 years imprisonment. The maximum penalty for the offence of robbery itself, for a basic offence, is 15 years, and for an aggravated offence imprisonment for life. Circumstances of aggravation relevant to the offence of robbery include the use, or threatened use, of an offensive weapon, that the victim of the offence is a child under 12 years or a person over the age of 60 and that the offence was committed in the company of one or more other persons.

Ratio Decidendi

Legal Principle Established

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