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 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.
Mr Mancini referred to other cases in which this Court has examined a sentence for robbery or attempted robbery. I shall mention several of them, but I did not, in the end, find them particularly instructive. As this Court has often said, each case is different, both in terms of the crime committed and the offender’s background and circumstances.
In R v Van Huizen (unreported, Supreme Court of South Australia, Court of Criminal Appeal, 23 February 1990) an ex tempore decision, the Court considered the sentence imposed for robbery with violence. Van Huizen, with a female companion, robbed a man who had just withdrawn $200 from an automatic teller machine in the city. Van Huizen brought the man to the ground and delivered a punch to his face and the woman took the $200. Both were intoxicated. Van Huizen’s age is not mentioned in the reasons. However, although he had prior convictions, they were described as street and nuisance offences and there were said to be indications that he might be a good subject for rehabilitation. The sentence was reduced to three years with a non-parole period of two years.
In R v Betts [2011] SASCFC 27 the Court considered a sentence imposed on a 31 year old Aboriginal man for a robbery, aggravated by its being committed in company. In reducing the head sentence from four and a half years to three years, and the non-parole period from three to two years the Court noted that the offence was unplanned and opportunistic and there was a fumbling or amateurish quality about it. Soon after the offence Betts was found asleep (and intoxicated) in a nearby garden. The Court held that the judge’s starting point of six years was out of proportion to the seriousness of the offence.
In R v McGlynn [2011] SASCFC 74 the Court set aside a sentence of six years and imposed one of three years and nine months for a robbery committed upon a young woman who emerged from a bank. The victim fell to the ground and McGlynn rifled through her pockets and stole $500. McGlynn suffered from schizophrenia and was severely intellectually challenged. Indeed, at the time of the offence he was on licence, having been found not fit to stand trial for some earlier offences. There was extensive psychiatric material before the judge which tended to explain the relapse and to which the judge did not appear to have given much weight.
There is no doubt that the offence committed by the appellant was a serious one. It was only thwarted by the actions of the victim and I do not consider that it is any less serious than it would have been if completed. This was a planned offence committed on a vulnerable shopkeeper. The effects upon the victim, Mr Lam, are serious and enduring. As I have said, the appellant breached a suspended sentence bond in committing it and he has prior convictions for serious offences including robberies. Although a head sentence of five years is a severe sentence, I do not consider it shows error.
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.
Section 137 of the Criminal Law Consolidation Act (1935) (the Act) rationalised the common law of robbery which had been given statutory force by s 155 and s 158 of the Act before the amendments effected by the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act (2002) (No 26)[3]. I will refer to those sections respectively as the repealed s 155 and s 158.
[3] The amendments did not come into effect until 5 July 2003.
Repealed s 155 provided a maximum penalty of 14 years for the offence of simple robbery. Repealed s 158 provided for a maximum penalty of life imprisonment for any person who, being armed, robs or assaults with intent to rob (armed robbery), or who together with others robs, or assaults with intent to rob (robbery in company), or who robs any person and at the time of or immediately before or immediately after wounds, beats, strikes or uses any other personal violence (robbery with violence).
Even though repealed s 158 imposed a maximum of life imprisonment for both armed robbery and robbery with violence, sentences for the latter were generally significantly less than sentences imposed for the former and were generally closer to sentences imposed for simple robbery. This Court has always maintained a marked distinction between sentences imposed for robbery, and those imposed for robbery with violence.[4]
[4] R v Drumgoon [1995] SASC 5382, [22]; R v Payne (1994) 177 LSJS 345.
The 2002 legislative amendments preserved that distinction. Section 137 of the Act delineates between basic and aggravated offence in a way which exposes offences of simple robbery and robbery with violence to a maximum penalty of 15 years imprisonment, but retains a maximum of life imprisonment for armed robbery and robbery in company, by treating the use of weapons, and offending with others, as circumstances of aggravation.
In my view the lower maximum penalty for an attempt is not particularly significant in the case of attempted robbery. The essential culpability of the offence of robbery lies in the use of violence for the purpose of theft. Whether or not the offending results in the taking of property may to some extent be fortuitous. Certainly, the maximum penalty for an attempted offence of basic robbery cannot exceed 10 years but it would, in my view, be appropriate in fixing a sentence for attempted robbery to have regard to both the maximum penalty for the attempt and the maximum penalty which would have governed the offence if it had been completed. In some cases there will be little reason to differentiate significantly between robberies depending on whether any property was taken, or by reference to the value of the property which was taken. Nonetheless, offences in which property of great value is, or could potentially have been, taken will generally demand higher sentences.
In R v Blackmore[5], on a prosecution appeal, this Court considered the appropriate range of penalty for simple offences of robbery contrary to repealed s 155. The offender had stolen amounts of about $5,000 and $11,000 on two different occasions from different banks by jumping over the counter and taking money from the drawers of the counter. On the day before the commission of the second offence the appellant had unsuccessfully attempted to commit a similar robbery. On each occasion he was not armed but on the occasion of the attempt he had pretended to have a gun in his pocket. The offender was an 18 year old Aboriginal youth and had no prior convictions. The sentence of three years was set aside. The attempt and the second robbery, committed on the day after the attempt, were dealt with as one incursion into crime (the last offence). A starting point of four years was fixed for each of the first offence and the last offence but was reduced to three years on account of the offender’s guilty pleas. The sentences were made cumulative.
[5] [2004] SASC 298.
In R v Van Huizen (Van Huizen)[6] an effective sentence of about five years for robbery with violence was reduced on appeal to three years. The offender, in the company of another, had mugged a person who had just withdrawn cash from an ATM on a city street late at night. The victim was held around the neck, forced to the gutter and punched in the face. Two hundred dollars was taken. The offender had a history of minor offending. King CJ said:
The appellant has prior convictions but none of them are for a particularly serious crime and he has never been sent to prison. His offending has been rather in the nature of what might be described as street and nuisance offences, although there are two convictions for stealing, neither of which, however, attracted a sentence of imprisonment.
The crime to which the appellant pleaded guilty is unquestionably a serious crime. The waylaying of a person in the street at night and the use of violence towards him to steal his money is unquestionably serious and it is necessary for sentences to be imposed which deter that type of offending. It is also important, however, that the sentences which the court imposes bear a proper proportion to the degree of seriousness of the offending and, in particular, to that offending in relation to other types of offending of a more serious kind.
The sentence which was imposed for this crime was at, or very near to, the top of the range of penalties commonly imposed for robbery with violence. That is not to say, of course, that there may not be very serious cases of robbery with violence involving in particular a great deal of violence which might attract sentences in excess of five years. But for the general run of robbery with violence cases a sentence of five years is very near if not at the top of the appropriate range.
[6] (Unreported, Supreme Court of South Australia, King CJ, Prior and Duggan JJ, 23 February 1990).
In R v Betts[7] this Court considered the appropriate starting point for an offence of robbery contrary to s 137 of the Act, which was aggravated by reason of it being committed in company. Betts had accepted a ride in a taxi from an acquaintance shortly after midnight. The taxi travelled from the city to Mansfield Park. The appellant with his companion, who was a youth, robbed the driver. The youth pulled the driver out of the car while Betts rummaged through the front passenger area, speaking aggressively as he did so. The driver was very frightened and handed over money which he had in his shirt and trouser pockets. Betts was 37 years of age and had a bad criminal history. The sentencing Judge started with a notional sentence of six years but reduced it by one year on account of Betts’ plea of guilty and by a further six months for time spent in custody.
[7] [2011] SASCFC 27.
White J, with whom Doyle CJ and Peek J agreed, held that a starting point of six years was out of proportion to the seriousness of the offences. White J took as his starting point four years which he then reduced by six months for the plea of guilty and six months for the time spent in custody. True it is that the offence in Betts was opportunistic, but I would not place much significance on that distinction. Obtaining a mask for a form of disguise does not need a great deal of planning. It is much more significant that Betts was charged with the aggravated form of the offence and was therefore subject to a maximum penalty of life imprisonment. Moreover, the robbery of a taxi driver who is alone in a dark suburban street is more frightening and potentially dangerous than an unarmed robbery in a place open to the public and staffed by a number of workers by a single offender who had hoped to steal and escape without a confrontation.

In R v McGlynn (McGlynn)[8] the appellant was sentenced to six years imprisonment with a non-parole period of five years for the offence of basic robbery contrary to s 137 of the Act. The appellant approached and pushed the victim as she came out of a bank. The victim fell to the ground where she hit her head. As she was on the ground the offender twisted her arm, rifled through her pockets and took $500. The appellant suffered from an intellectual disability and schizophrenia. Sulan J with whom Vanstone and White JJ agreed, after referring to Van Huizen and Betts,[9] held that a starting point of six years was disproportionately high for offences of the kind committed by appellant in that case. The sentence of six years was set aside and a sentence of three years and nine months imprisonment was imposed.
[8] [2011] SASCFC 74.
[9] [2011] SASCFC 27.
In my view there is a significant disparity, which is incapable of explanation, between the starting point selected by this Court in Betts and the starting point chosen by the Judge in this case. In my respectful opinion the disparity shows that the Judge failed to have proper regard to the relative seriousness of the appellant’s offending in comparison to the aggravated kinds of offending encompassed by s 137 of the Act.
In my view it continues to be important to maintain a substantial difference between sentences for armed robberies[10] and other forms of robbery. The risk of serious harm, and the fear instilled in the victim, is many times greater when a weapon is used. In my view the starting point of six years selected by the sentencing Judge in this case fails to maintain that important distinction. I accept that there are some forms of robbery with violence which are as serious, or almost as serious, as armed robbery. A “mugging” of a lone victim in an isolated place at night, or the use of violence to inflict serious harm may well attract penalties which start to approach or fall within the armed robbery range. That is not this case.
[10] The adequacy of current sentencing standards for armed robbery is not in issue on this appeal.
I have concluded for the above reasons that the selection of a starting point of five years is in itself an error which justifies intervention. The error can be described as a failure to have regard to the distinction between basic offences of robbery and offences of armed robbery. If I am wrong to identify, as an appealable error in itself, the selection of an excessively high starting point, I am also of the view that the sentence of five years, even accepting that the appellant’s very late plea deserves little if any reduction, is manifestly excessive.
In the ordinary course it would be appropriate to set aside the sentence and to substitute a sentence fixed by this Court. However, counsel for the Director of Public Prosecutions informed the Court that it has come to his attention that some of the material before the sentencing court was factually mistaken and that there is other relevant material which the Director would put on the resentencing of the appellant. It is not practical for this Court to undertake the task of resentencing on the basis of that further material which may be disputed. I would therefore remit the matter to the District Court for that purpose