R v Greenwood

R v GREENWOOD
[2000] SASC 204

Court of Criminal Appeal: Olsson, Wicks & Gray JJ

OLSSON J I agree with the reasons expressed by Wicks J and the orders which he proposes.
WICKS J This is an appeal against sentence. The appellant, along with Cory Matthew Dettman, Mark Andrew Sandery and Timothy Michael Taylor, was found guilty on his own confession of conspiracy to break and enter premises unknown and to steal property therein. Dettman was also found guilty on his own confession of two counts of possessing firearms without holding a firearms licence authorising their possession contrary to s 11 of the Firearms Act 1935. He was also convicted of one count of carrying an offensive weapon namely a replica .45 calibre pistol without lawful excuse contrary to s 15(1)(a) of the Summary Offences Act 1953. Conspiracy is an offence of common law. No maximum penalty has been prescribed.
The substantive offence of breaking, entering and stealing carries a maximum penalty of eight years and it would be unlikely that the penalty for conspiracy to commit such an offence would be any greater.
On 26 February 1999 a motor car carrying the appellant and his co-conspirators was under surveillance by the police. It was stopped and the contents were found to include balaclavas, changes of clothes, police scanners, loaded firearms, spare ammunition, gloves, beanies and other potential items of disguise, tools such as screwdrivers, pliers, a block splitter and a hammer.
The conspiracy was to break into a shed in the garden of the dwelling house occupied by what was described as a motorbike gang at a time when the occupants were absent and to steal cannabis plants thought to be growing in the shed.
It appears that it was agreed at the outset that firearms would not be used but that Dettman, unknown to Taylor and the appellant, took firearms with him contrary to the plan agreed upon.
The learned sentencing judge took as a standard for a simple breaking, entering and larceny in respect of an offender with a bad record (applicable in the case of each defendant in this case) a sentence of imprisonment in the range of two years and six months to two years and nine months. Such a term would be liable to reduction in the case of a plea of guilty or other mitigating circumstances.
At the time of the offence, Dettman was 26 years of age. He has been in custody since his arrest on 26 February 1999.
Dettman was convicted of armed robbery (not associated in any way with the present proceedings) on 17 November 1999 and sentenced to imprisonment for eight years and four months with a non-parole period of five years and four months. He has a bad criminal record extending from offences committed while a juvenile as far back as 1987. He pleaded guilty to the charge of conspiracy the subject of this appeal at the earliest opportunity.
The learned sentencing judge indicated that but for the timely plea of guilty, he would have imposed a sentence of two years and six months. In view of the timely plea of guilty, he imposed a sentence of two years.
The learned sentencing judge also took into account the additional counts so far as Dettman was concerned of unauthorised possession of firearms and carrying an offensive weapon. In relation to all of these, including the conspiracy, he imposed a single sentence of two years and six months to be served cumulatively upon a sentence of eight years and four months imposed on 17 November 1999, thus making a new head sentence of ten years and ten months. Also, under s 32 of the Sentencing Act, the learned judge reviewed the non-parole period and increased it from five years and four months to six years and seven months.
At the time of the offence, Sandery was 27 years of age. Like Dettman he too has a formidable record of offending. In this case he was the instigator of the conspiracy. He did not appear to be contrite for what he had done.
The learned sentencing judge gave credit for a plea of guilty at the earliest opportunity. He indicated that were it not for that plea, he would have sentenced Sandery for a term of imprisonment of two years and nine months. In the circumstances, he fixed a head sentence of two years and three months. He fixed a non-parole period of one year and six months. Both sentence and non-parole period were to commence from 26 February 1999 when Sandery was first taken into custody.
Taylor too had a formidable criminal record extending back to the time when he was a juvenile. At the time of the offence he was 39 years of age.
A mitigating factor so far as Taylor was concerned was that he joined the conspiracy at the last moment. Also, an allowance was made for cognitive impairment suffered by him stemming from a subdural haematoma caused by injuries to the head when he was hit on the back of the head with a brick in August 1997. The learned sentencing judge was of the view that this incident was a factor which “dulled your ability to appreciate the enormity of the offence with which you are about to participate”.
Taylor knew nothing about the firearms being taken by Dettman. It was Taylor’s role in the affair to drive the getaway car. The learned sentencing judge was satisfied that Taylor played a much lesser role than that played by the other three.
The learned sentencing judge took into account an early plea of guilty and ordered that Taylor be imprisoned for 18 months with a non-parole period of nine months, both the sentence of imprisonment and the non-parole period to date from 24 March 2000 when bail was revoked and Taylor was remanded in custody.
The learned sentencing judge then dealt with the appellant. At the time of the commission of the offence he was 32 years of age. While his past record was not as bad as that of the other three conspirators the record does show the commission of some serious offences including larceny, shop-breaking and larceny and armed robbery.
As with Taylor, the appellant’s involvement commenced on the day on which the crime was committed. He had no knowledge of the firearms that Dettman was carrying. The learned sentencing judge accepted that the appellant’s participation on this occasion was made on the spur of the moment in accepting the invitation on the part of Dettman and Sandery in a plan to steal cannabis. As with Dettman, the appellant was on parole when the offence was committed. The learned sentencing judge took into account the fact that there had been a plea of guilty at the first possible moment.
It was a ground of appeal that the learned sentencing judge erred in failing to set a non-parole period for the appellant.
In this matter at the date of sentencing the appellant had been in custody for a period of one year and 28 days. The learned sentencing judge said, “[a]fter ... giving you the credit for the time that you have spent in custody the sentence of the Court is that you be imprisoned for a term of 11 months cumulative on 42 days of unexpired period of parole which you now have to serve”.
The total sentence to be served was more than one year. Under s 32(1)(a) of the Criminal Law (Sentencing) Act, if a person is not subject to an existing non-parole period, the court on sentencing must fix one. The appellant was not then subject to a non-parole period by virtue of the operation of subs 75(1) of the Correctional Services Act 1982.
Under s 32(7)(a) of the Criminal Law (Sentencing) Act, in fixing a non-parole period, the court must, if the person in respect of whom the non-parole period is to be fixed is in prison serving a sentence of imprisonment, take into account the period already served.
It is my opinion that the learned sentencing judge was in error in failing to fix a non-parole period in this case, particularly in view of the period in custody that the appellant is liable to serve.
In this matter having regard to the period already spent in custody I would fix a non-parole period in relation to the appellant commencing on the date the sentence was passed, namely 7 April 2000, and expiring on 4 August 2000.
It was also a ground of appeal that the sentence imposed by the learned sentencing judge on the appellant was manifestly disproportionate in relation to the sentence imposed on the co-accused such as to give rise to a justifiable sense of grievance. This ground was not dealt with in the submissions either written or oral on behalf of the appellant. Indeed counsel for the appellant indicated that any downward adjustment of the head sentence imposed on his client might well work to his disadvantage due to the need to give credit for the time already spent in custody. As a practical matter, it seems to me that the principal residual difficulty in this case lies in the failure to set a non-parole period and that once that has been overcome the appellant ceases to have a justifiable complaint.
In the circumstances, I would:

(a) allow the appeal; and

(b)fix a non-parole period commencing on 7 April 2000 and expiring on 4 August 2000.

GRAY J I agree.

[2000] SASC 204

30 June 2000