R v Harradine - [2012] SASCFC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARRADINE & HARRADINE
[2012] SASCFC 103
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Nicholson)
30 August 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
Crown appeals against sentence - the defendants were charged and pleaded guilty to aggravated robbery - offending involved robbing a hotel whilst armed, and threatening to use offensive weapons.
Sentencing Judge sentenced each defendant to two years and three months' imprisonment with a non-parole period of 12 months' imprisonment.
Whether the sentences were manifestly inadequate - whether the sentencing Judge erred in commencing with a starting point of three years.
Principles of Crown appeals, discussed - principles relating to sentencing for crimes of armed robbery, discussed.
Held: Appeals allowed - sentencing Judge gave no explanation for departing from the sentencing standard discussed in R v Place - the sentences were manifestly unreasonable and ought to be addressed to maintain adequate sentencing standards for aggravated robbery - defendants sentenced to four years and six months' imprisonment with a non-parole period of two years and three months' imprisonment.
Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Jones (2010) 108 SASR 479; R v Siozios (2004) 236 LSJS 88; R v Nemer (2003) 87 SASR 168; R v Place (2002) 81 SASR 395, applied.

R v HARRADINE & HARRADINE
[2012] SASCFC 103
Court of Criminal Appeal: Sulan, White and Nicholson JJ

SULAN J: The Director of Public Prosecutions (‘the Director’) seeks permission to appeal against sentences imposed upon the defendants and respondents to these appeals, George Stanley Harradine and Anthony Neil Harradine.
The defendants pleaded guilty when first arraigned to aggravated robbery. They, together with a third man, robbed a hotel manager when they were armed with screwdrivers, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for the offence is life imprisonment.
On 12 July 2012, a Judge of the District Court sentenced each defendant to two years and three months’ imprisonment, and fixed a non-parole period of 12 months’ imprisonment, the sentences to commence on 5 November 2011.
Background
The conduct giving rise to the offence occurred on 5 November 2011 at the Rosewater Hotel. George Harradine and another man entered the hotel at about 11.30 am. They confronted an employee who was standing at the rear bar situated in the dining room. One of the men demanded money. The other man was holding a yellow-handled screwdriver. The employee pressed the duress alarm. She then ran from the dining room into a bar where she warned others that there was a holdup. She locked the rear door which connected the bar from the rear dining room. Soon after, the two men left the area.
The defendant, Anthony Harradine, was in a getaway car in the hotel carpark. When the two men came out of the hotel, they jumped into the getaway car. At that time, one of the hotel employees attempted to stop the driver from proceeding. Another employee had run into the street and hailed a police car. In the panic and confusion, Anthony Harradine manoeuvred the getaway car into a position from which escape could easily be blocked. The police approached the offenders’ car and arrested Anthony Harradine and George Harradine. The third member of the group escaped. A person was later arrested and charged.
Sentencing remarks
In sentencing the defendants, the Judge stated that he must have regard to the need for general deterrence, and acknowledged the need to protect persons, such as hotel workers, from this type of offending. He then dealt with the personal circumstances of the defendants.
The defendant, Anthony Harradine, is 24 years of age. He has a number of previous convictions, commencing in November 2004. He had appeared before the court charged with driving a motor vehicle without consent, and other driving offences for which he received a bond without conviction. In 2006, he was convicted of offences of dishonesty, including unlawful possession and driving a motor vehicle without consent. No custodial penalty was imposed.
Between January 2006 and July 2010 he appeared before magistrates courts on six occasions charged with various offences of dishonesty and driving offences. On each occasion, he received a good behaviour bond or a fine.
The sentencing Judge accepted that Anthony Harradine is a proud aboriginal man who is very attached to his aboriginal culture. He is very close to his community. He had a good school record. When he was aged 11, his 16‑year-old brother died in a car accident. He was severely affected by the loss of his brother.
It was accepted by the Judge that Anthony Harradine was contrite. He had written a letter of apology to the victims. Whilst awaiting sentence, he has been of immaculate behaviour. It was put to the Judge that the period that Anthony Harradine had spent in custody awaiting sentence had had a salutary effect upon him, and that he had strong family support.
At the time of the offence, he was grossly affected by alcohol and drugs. Although the offending was premeditated, the attempted aggravated robbery was poorly executed, and there was a very good prospect that the offenders would be apprehended soon after the offending.
As to George Harradine, his antecedents are more serious than those of Anthony Harradine. George Harradine first appeared in the Adelaide Children’s Court in January 2006 charged with aggravated serious criminal trespass and other offences, including driving offences. He was discharged on a bond, without conviction. In January 2007, he was convicted of six counts of aggravated serious criminal trespass and other dishonesty offences. He received eight months’ detention, but was released on a bond to be of good behaviour for six months after serving two months in detention.
Between January 2010 and December 2011, he was before the Adelaide Magistrates Court on five occasions. None of the offences was for dishonesty. On two occasions he received suspended sentences of six weeks and eight weeks respectively for driving under disqualification and for common assault. He was 23 years of age at the time of sentence.
George Harradine grew up in Ceduna. At the time of sentence, he was in a permanent relationship with a woman. They have a three-year-old child. He has qualifications to drive a forklift, and has obtained other certificates to enable him to be employed in the hospitality industry. He has strong family ties. Matters deteriorated after his father died unexpectedly. He had very little recall of the offence because he had been binge drinking.
Since he has been incarcerated he has undertaken educational programs. He had also written a letter of apology to the proprietor of the hotel. He has strong family support.
The Judge considered that an immediate custodial sentence was appropriate. He said:
Aggravated robbery is a serious offence, too serious for the sentence of imprisonment to be suspended.
I propose to treat the two of you in the same way. In each case but for your plea of guilty I would have sentenced you to imprisonment for three years. After taking your plea into account, there will be a sentence of imprisonment for 27 months.
I fix a non-parole period of 12 months from 5 November 2011.
Crown appeals
It is accepted that the Court should grant leave to the Director to appeal against a sentence “only in the rare and exceptional case”.[1] In order to succeed, the Director must do more than identify that an error has occurred. The Court will allow an appeal in circumstances in which it is necessary to establish or maintain an adequate standard of sentencing for a particular offence or a particular type of offence. The sentence will be corrected if it is so far below the appropriate range of sentence that it reflects an error of principle or “would shock the public conscience”.[2] An error in the sentencing process may be inferred if the sentence is plainly wrong.
[1] Everett v The Queen (1994) 181 CLR 295, 299.
[2] R v Osenkowski (1982) 30 SASR 212, 213.
In R v Osenkowski,[3] King CJ made it clear that the proper role for prosecution appeals is to enable courts to establish and maintain adequate standards of punishment for crime and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[3] (1982) 30 SASR 212.
In R v Siozios, Perry J, with whom Doyle CJ agreed, observed that:[4]
... the Crown should be given leave to appeal against sentence “only in the rare and exceptional case”, which would ordinarily confine intervention by the Court of Criminal Appeal to cases where it is necessary to avoid “the kind of manifest inadequacy or inconsistency in sentencing standards” which might properly be described as constituting “error in point of principle”.
[4] (2004) 236 LSJS 88, 89-90
In R v Nemer,[5] Doyle CJ summarised the principles established by the High Court. He said:[6]
... The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[5] (2003) 87 SASR 168.
[6] R v Nemer (2003) 87 SASR 168, 172.
The prosecution submission
The Director submits that the sentencing Judge was in error in deciding that a starting point for the sentence in each case should be three years’ imprisonment. In R v Place,[7] the appellant committed six armed robberies over a period of three weeks. The offender was armed with an imitation firearm. He entered liquor stores, service stations and a small retail store. On each occasion he obtained relatively small amounts of money. In a joint judgment, Doyle CJ, Prior, Lander and Martin JJ said:[8]
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. In our view, the sentencing judge was doing no more than having regard to the standard of penalty that has been identified by the Court of Criminal Appeal as applicable to the circumstances before him. However, it is clear that his Honour did not apply the standard as if it was a fixed tariff. If he had done so, his starting point would have been 36 years or more. It appears that his Honour used a figure of approximately five years for each of the armed robberies in determining his starting point.
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.
...
In these reasons, we have confirmed the general principles that are applicable when sentencing for crimes of armed robbery. We have emphasised the need to consider the individual circumstances of the offence and the offender. No submissions were directed to whether the existing standard should be reviewed. The Director did not seek to revisit the suggestion that was made in Newton that sentences imposed in the District Court in recent years demonstrate that the level of sentences imposed for armed robbery has drifted below the standard to which we have referred. In these circumstances, it is sufficient for us to confirm that the standard remains applicable for the types of offences and offenders which we have, in broad terms, described. We would add only that we disagree with the suggestion in Newton that the circumstances to which the standard of six to eight years is appropriate includes the large-scale well planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out. Generally speaking, however, in our view a well planned and large scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.
[7] (2002) 81 SASR 395.
[8] R v Place (2002) 81 SASR 395, 429 [100]-[101], [108].
Although, as pointed out in Place, the starting point in the order of six to eight years’ imprisonment is not inflexible, I consider that a starting point of three years in this case was so low as to demonstrate error. Although the manner of carrying out the crime could be described as somewhat amateurish, it nevertheless required the offenders to agree to commit a robbery, to select a target for it, to arm themselves, disguise themselves and enter the hotel with a purpose to threaten employees and take money. This was not a spontaneous act when an opportunity presented itself. There was nothing in the conduct of the defendants which supports a submission that their case is sufficiently distinguishable from the general description of armed robbery referred to in Place. The weapon used was within the range of weapons contemplated in Place. The victims were vulnerable. The fact that the defendants were intoxicated and under the influence of drugs is not exceptional in cases of this nature. There is nothing in the circumstances of the offending, or the defendants’ personal circumstances, to distinguish this case from the type of offence which attracts the penalty referred to in Place.
The Judge gave no explanation for departing from the standard discussed in Place.
The offending was serious. It was frightening to those who were confronted by the defendants. Offending of this kind remains prevalent. The protection of the public requires the courts to ensure that offences of this kind are severely punished.
The sentences were manifestly unreasonable and, in my view, plainly wrong. The Court should interfere to maintain adequate sentencing standards for aggravated robbery.
I would, therefore, grant the Director permission to appeal in each case. The appeals must be allowed.
Resentencing
The sentencing Judge considered that there were no good grounds to distinguish between the offenders. I agree. Both are of a similar age and, although their previous convictions vary, the differences between them do not, in my view, call for a distinction in the sentence to be imposed.
In my view, it could be said that this offending was toward the lower end of the scale of seriousness for this offence. In circumstances such as the present, I consider that an appropriate starting point in this case should be six years’ imprisonment. I would reduce that sentence to four years six months’ imprisonment, having regard to the defendants’ pleas of guilty and genuine contrition.
I have had regard to the personal circumstances of each defendant. The sentencing Judge considered there to be good prospects of rehabilitation for both. I note that each of them has responded positively to the periods that they have been in custody, prior to being sentenced. Mr Anthony Harradine currently works in F Division in Yatala. He is said to have been of good behaviour at all times on remand. Mr George Harradine has undertaken various education programs whilst being in custody.
I have had regard to the letters of apology written by each defendant. Further, I accept that the defendants each have strong family ties and support networks in the community. I consider a non-parole period of two years and 3 months’ imprisonment in each case to be appropriate, having regard to the personal circumstances of each of the defendants.
Conclusion
In each appeal, I would grant the Director of Public Prosecutions permission to appeal. I would allow each appeal.
The sentences imposed in respect of George Stanley Harradine and Anthony Neil Harradine are set aside. In substitution, each respondent is sentenced to four years and six months’ imprisonment, with a non-parole period of two years and three months’ imprisonment, the sentence and non-parole period to commence on 5 November 2011.
WHITE J. I agree with the orders proposed by Sulan J and with his reasons.
NICHOLSON J. I agree with the orders proposed by Sulan J and with his reasons.