R v HOPPER - [2018] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOPPER
[2018] SASCFC 53
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE
Appeal against sentence. The appellant pleaded guilty to a series of offences committed on three occasions during May and August 2016, including theft, interference with a motor vehicle, aggravated serious criminal trespass in a place of residence and aggravated robbery.
The appellant was sentenced separately for the three instances of offending. The appellant was entitled to a discount for each of the offences on account of her pleas of guilty. For the first count of theft, the Judge imposed a term of imprisonment of eight months, reduced from a starting point of 12 months. For the offences of interference with a motor vehicle and theft, a single term of five months, reduced from six months, was imposed. For the offences of aggravated serious criminal trespass and aggravated robbery, the Judge imposed a single sentence of six years and five months imprisonment, reduced from a starting point of eight years.
The Judge ordered that the three sentences be served cumulatively, resulting in a total period of imprisonment of seven years and six months, backdated to commence on 29 January 2017. His Honour fixed a non-parole period of three years and nine months.
The appellant was granted permission to appeal on a single ground, that the individual cumulative sentences imposed were each manifestly excessive and resulted in a head sentence and non-parole period which were manifestly excessive. The appellant also applies for permission to appeal on a number of other grounds.
Held per Nicholson J (Kelly and Blue JJ agreeing), allowing the appeal:
1.       The starting points selected by the Judge for each of the sentences imposed were outside the range available for the respective offences.
2.       Taking into account the undoubted seriousness of the offending but having regard to the appellant’s personal circumstances, the ultimate sentencing outcome was manifestly excessive.
3.       Each of the District Court sentences is set aside.
4.       The appellant is remanded in custody awaiting the preparation of a pre-sentence report and resentencing by this Court at a later date.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134, s 137, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 9C, s 10, s 10C, referred to.
R v Humby [2004] SASC 358; R v Place (2002) 81 SASR 395; R v Curry [2016] SASCFC 16, considered.

R v HOPPER
[2018] SASCFC 53
Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
KELLY J.

I agree with the orders proposed by Nicholson J and with his reasons.
BLUE J.
I agree with Nicholson J.
NICHOLSON J.
Introduction
On 3 November 2017, the appellant was sentenced in the District Court to imprisonment for seven years and six months, with a non-parole period of three years and nine months, after pleading guilty to a series of offences committed on three different occasions.
The offences comprised: one count of theft by receiving, committed 9 May 2016;[1] one count of interference with a motor vehicle without consent[2] and one count of theft,[3] both committed 18 May 2016; and one count of aggravated serious criminal trespass in a place of residence[4] and one count of aggravated robbery,[5] both committed 28 August 2016. The appellant was entitled to a discount for each of the offences committed on 9 May and 18 May of up to 30 per cent and for the 28 August offences of up to 20 per cent, on account of the timing of her pleas of guilty.
[1] Contrary to section 134 of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 10 years.
[2] Contrary to section 86A of the Criminal Law Consolidation Act 1935, the maximum penalty for which, being a first offence, is imprisonment for two years.
[3] Contrary to section 134 of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 10 years.
[4] Contrary to section 170 of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for life.
[5] Contrary to section 137 of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for life.
The sentences were structured in the following manner. For the offence of theft committed on 9 May 2016, a prison term of eight months reduced from 12 months on account of the guilty plea was imposed.[6] For the two offences committed on 18 May 2016, a single prison term of five months reduced from six months on account of the pleas of guilty was imposed.
[6] Given the timing of this guilty plea, the appellant was entitled to a maximum discount of 30 per cent. The discount in fact given was 33.67 per cent and in excess of that permitted by law. The all too frequent recurrence of this type of error by sentencing judges has been criticised by this Court previously, see for example, R v Deng [2015] SASCFC 176 at [51]-[53], R v Kartinyeri [2016] SASCFC 20 at fn 14, R v Palmer [2016] SASCFC 34 at [19] and R v Siviour [2016] SASCFC 51 at fn 9.
For the offences of aggravated serious criminal trespass and aggravated robbery committed on 18 August 2016, the Judge imposed a single prison term of six years and five months after allowing a discount of almost 20 per cent from a starting point of eight years on account of the appellant’s pleas.
The Judge ordered the three sentences to be served cumulatively, resulting in a total period of imprisonment of seven years and six months. A non-parole period of three years and nine months was fixed and the sentence backdated to commence on 29 January 2017.
The appellant relies on the following grounds of appeal.
1.The learned sentencing Judge erred in failing to have any or adequate regard to matters personal to the Appellant as an Aboriginal woman which were highlighted by an Aboriginal elder, the Appellant and her family, and service providers who attended at the Aboriginal sentencing conference held in this matter, and in doing so failed to give effect to the principles and purpose of section 9C of the Criminal Law (Sentencing) Act 1988 (SA) with respect to the sentencing of Aboriginal offenders.
a.     In particular, the learned sentencing Judge erred in failing to make any reference to the Appellant’s identity as an Aboriginal person, or to have any or adequate regard to features of her background relevant to that identity, including inter alia: her social and economic disadvantage; experience as a child under Guardianship; limited educational opportunities; and experience as a victim of intergenerational domestic violence, as matters relevant to sentencing.
2.While reference was made to the Appellant being a victim of domestic violence, the learned sentencing Judge erred in not relating the Appellant’s experience of extreme domestic violence to the circumstances of the offending before the Court, or as a relevant factor in determining her prospects of rehabilitation.
3.Notwithstanding the objective seriousness of the offending, the learned sentencing Judge failed to give adequate weight to evidence and submissions that were made about the circumstances of the Appellant during the discrete period of the offending, including the removal of her children, escalation of her drug use and deterioration of her mental health, which were relevant to an assessment of the offending before the Court.
4.The learned sentencing Judge failed to give adequate weight to the Appellant’s prospects of rehabilitation, including inter alia: her demonstrated engagement with rehabilitative service providers; contrition and remorse; the circumstances of her children and ongoing care of her children; and lack of similar offending history, in fixing both the head sentence and the non-parole period.
5.The individual cumulative sentences imposed were manifestly excessive, and resulted in a head sentence and non-parole period which were manifestly excessive, and in particular:
a.     The cumulative sentences totalling 13 months for the offences of Theft, Illegal Interference with a Motor Vehicle and Theft by Receiving were manifestly excessive;
b.     A starting point of eight years for the Aggravated Serious Criminal Trespass and Aggravated Robbery offences was manifestly excessive;
c.     The non-parole period was manifestly excessive having regard in particular to the appellant’s personal circumstances and prospects for rehabilitation; and
d.     The learned sentencing Judge erred in failing to apply the principle of totality.
On 8 December 2017, a Judge of this Court granted the appellant permission to appeal on ground 5[7] and referred the application for permission to appeal on the other grounds to the Full Court. For the reasons that follow, I would allow the appeal on ground 5. As such, it is not necessary to consider the remaining grounds of appeal. However, as part of my consideration of ground 5, I address the concerns raised by ground 4.
[7] The respondent conceded that ground 5 was reasonably arguable but only with respect to an error by the Judge in the application of the discount for the appellant’s plea of guilty in relation to the offences committed on 18 May 2016. This conceded error is addressed below.
Circumstances of the offending
In his sentencing remarks, the Judge described the circumstances of the offending in detail as follows.
The first offending occurred on 9 May 2016. For some months you had been separated from your then partner. Your two children had been removed from you and placed with your mother and stepfather, who lived in Port Augusta.
You are 33. You had been using drugs, including heroin and amphetamine since your early 20s. After the break-up of your relationship with your partner and the removal of your children, your drug use increased and you were virtually homeless. Your mental health deteriorated. For a few days in early May you had been staying at the Desert Cave Hotel in Coober Pedy. For reasons that are not clear to me, your mental health deteriorated such that you were admitted to Glenside Hospital in Adelaide. The staff at Glenside noticed you had in your possession jewellery which still had the price tags from the Desert Cave Hotel. The police were called and the hotel noticed that the jewellery was missing. When you were asked about it by police, you told a false story about the jewellery being left to you by a relative, but you have now pleaded guilty to receiving the jewellery, which as it happens was worth over $11,000. You are entitled to a discount of about 30% for your guilty plea to the charge of theft by way of receiving.
It seems you were released from Glenside a few days later. On 18 May 2016 you interfered with a motor vehicle on a service station in Pulteney Street. You stole from the vehicle a Samsung tablet and a modem, together worth about $950. You pleaded guilty to interfering with a motor vehicle and theft. You are entitled to a discount of up to 30% on those guilty pleas.
It seems these offences committed on 9 and 18 May were the subject of a report rather than arrest. So, you were not on bail on 28 August 2016 when you committed the much more serious offences of aggravated serious criminal trespass in a residence and aggravated robbery.
You say that on that day you were affected by methylamphetamine. You got into the house of the victim intending to steal property, with which no doubt to buy drugs. Around lunch time on Sunday, 28 August 2016, the victim of your offending, an 83-year-old woman, came home from church. She noticed some louvres missing from the side of her house and some things inside the house were moved from where they had been when she went to church. When she went into her bedroom she saw you between her wardrobe and a curtain. She had her telephone in her hand. She told you to stay where you were and that she was ringing the police. Before she was able to get through to the police you told her that she was not doing that and you pushed her to the ground. You started kicking her while she was on the ground. She crawled into the lounge room where you tried to pull a reclining chair down on her, saying that she should shut up or you would kill her. She was not saying anything at the time.
You then went into her kitchen and took her handbag, from which it was later discovered you took about $550.
When you saw that the woman was trying to get up, you came and put one of your feet on top of her back and you kicked her again, pushing her right down on the ground. You said ‘stay down’ or you would kill her. As you were attacking her, she actually thought that you were going to kill her. She stayed on the floor until you left. She rang her daughter and in due course the ambulance and police came.
It was not until after you left that the woman noticed that you had stolen a good deal of her jewellery, which had particular sentimental value for her. She estimates the value of the jewellery that you had stolen something in the order of $20,000 worth. You were arrested two days later.
The police inspected your mobile telephone. On it they found a message that you had sent to your house mate, in which you said: ‘Ring me now Nes, we’ve hit the motherlode’. No doubt you sold or traded the victim’s jewellery for drugs. Fortunately the victim has not suffered any permanent physical injuries. She suffered pain from your attacks on her and her daughter notices she moves slightly differently now. More significant is the psychological change. In the victim impact statement and the s 9C Conference which was held in this matter, she spoke of a loss of trust in other people that she now feels. She is fearful at nights of being in her own house. She is normally a positive person who thinks the best of people but now finds herself trusting people less and being more fearful. You will remember what she said at the conference. You will also remember what her son had said.
You did not enter an immediate guilty plea to these offences. That is notwithstanding that at the committal stage there was disclosed the message that you had sent on your telephone to your house mate and there was disclosed the DNA evidence found on a cap that you left at the scene. Your guilty pleas were not entered until after arraignment in this court. You are therefore entitled to a discount of no more than 20%.
Personal circumstances of the appellant
The appellant was 33 at the time of sentencing. She has a number of other convictions for less serious offences, including offences involving dishonesty and drug possession and two offences of assault for which she received short periods of imprisonment which were suspended. As a consequence, she was not entitled to the leniency that might be afforded a first offender.
The appellant had a very difficult upbringing. She was exposed to domestic violence perpetrated against her mother and left home aged 11. She had a very limited education and had ceased her schooling by around Year Five.
The appellant has two children, who were aged 11 and 7 at the time of sentencing. She was the victim of serious domestic violence throughout her six year relationship with the father of her second child. The appellant was introduced to drugs, including heroin and methylamphetamine, by her partner during that relationship. The children were removed from her care in 2015 because of the domestic violence and the appellant’s drug use. They are being cared for by the appellant’s mother and stepfather in Port Augusta.
In the period preceding the offending, following the removal of the children and the ending of the violent relationship, the appellant’s drug use increased. She was effectively homeless and at times resided with her drug dealer.
The Judge’s approach to sentence
An Aboriginal sentencing conference was conducted as an aide to sentencing in accordance with section 9C of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act). The conference was attended by the appellant, her mother and stepfather, an Aboriginal elder, representatives of support programs for Aboriginal offenders, the victim of the August 2016 offending and the victim’s son. The Judge heard sentencing submissions the following day and delivered sentence a day later.
In his sentencing remarks, the Judge summarised the circumstances of the offending in detail as set out earlier in these reasons. His Honour considered the personal circumstances of the appellant and the material put before him at the sentencing conference. The Judge acknowledged the appellant’s troubled upbringing, the domestic violence that she suffered during her relationship, her drug use and the effect of the removal of her children from her care. The Judge then proceeded to impose sentence in the manner set out in the introduction to these reasons.
The appellant was arrested for the offences the subject of this appeal on 30 August 2016. However, on 12 October 2016, the appellant was sentenced in the Magistrates Court to a term of imprisonment of five months for a number of other drug and property offences committed in 2015 and 2016. That sentence was backdated to commence 30 August 2016 (when the appellant was remanded in custody) and expired on 29 January 2017. The Judge therefore backdated the sentence for the offending before him to commence 29 January 2017.
Concession by the respondent
It is conceded by the respondent that the Judge erred in relation to the guilty plea reduction applied in respect of the 18 May 2016 offences. The appellant was entitled to a discount of up to 30 per cent pursuant to section 10C of the Sentencing Act. Whilst the Judge began with a starting point of six months and expressly purported to reduce it by ‘about 30 per cent’, a discount of only 16.67 per cent was applied, resulting in a term of five months. The respondent accepts that this arithmetical error enlivens the discretion of the Court to resentence the appellant but only in respect of the 18 May 2016 offences and only to correct the error in relation to the reduction. The respondent submits that the Court should impose a sentence of imprisonment of four months and six days by applying the correct discount to the same starting point. Whilst the Judge fixed a single non-parole period in relation to the total period of imprisonment imposed, the respondent submits that the Court should not interfere with this non-parole period upon resentencing.
As the appellant is to be resentenced in any event, it is unnecessary to consider this issue any further other than to note that the correct reduction will be allowed as part of the resentencing.
Ground 4 – failure to consider prospects of rehabilitation
The appellant submits that the Judge erred in failing to have regard to the appellant’s prospects of rehabilitation in determining both the head sentence and non-parole period, as required by section 10(1)(m) of the Sentencing Act.
According to counsel, the Judge failed to make an assessment of the appellant’s prospects of rehabilitation and, as a result, failed to find, on the material before his Honour, that the appellant had good prospects of rehabilitation and failed to exercise his sentencing discretion accordingly. The appellant relies on a number of factors as supporting a finding that she has good prospects of rehabilitation, including her age, her limited custodial history, her abstinence from drug use during her time in custody, her ongoing engagement with support services for the first time and changes in her personal circumstances since the time of the offending.

Counsel also submitted that the Judge erred in failing to set out adequately, or at all, in his sentencing remarks the nature or extent of his consideration of the issue of rehabilitation. As such, the remarks provide no assistance on the issue of the Judge’s assessment of the appellant’s prospects for rehabilitation.
The respondent contends that, although the Judge did not express findings as to the appellant’s prospects for rehabilitation, his Honour did refer to and take into account factors relevant to an assessment of rehabilitation prospects. Counsel submitted that the non-parole period, being 50 per cent of the head sentence, demonstrates that the Judge did appreciate the appellant’s relatively positive prospects for rehabilitation.
Consideration
The only express reference to rehabilitation in the sentencing remarks is the following.
I bear in mind also that at the conference the evidence was given or information was given about carers who will take steps to encourage your rehabilitation when you are released from prison.
It is difficult for this Court to determine, on a reading of the sentencing remarks as a whole, the extent to which the Judge did give consideration to the appellant’s prospects for rehabilitation. Further, his Honour expressed no conclusion as to those prospects.
At the sentencing conference and in submissions, counsel for the appellant put before the Judge a substantial amount of material relevant to the question of rehabilitation including, in particular, as to the changes to the appellant’s personal circumstances in the year or so between her arrest and sentence.
The appellant is a relatively young woman. At the time of sentencing, she had been in custody for around 15 months, significantly longer than her previous longest custodial period of 18 days.
The sentencing remarks indicate that the Judge sentenced on the basis that the offences were committed to support the appellant’s methylamphetamine use in the context of her having an addiction. There was information before the Judge at the time of sentencing that the appellant had ceased drug use upon her arrest and had remained drug free for over a year. This was the longest period during which she had abstained from drug use since her early twenties. During her time in custody prior to sentencing, the appellant had been able to engage with Aboriginal support programs and intervention programs relating to drug use to assist her in continuing to abstain from drug use in the future. She had not previously had access to such programs.
Given that the Judge sentenced on the basis that the offending was drug related, these matters were important factors in assessing the appellant’s prospects for rehabilitation.
The appellant has ceased the relationship with her former partner who was violent towards her. It was submitted by counsel that the appellant is keen to rebuild her relationship with her children upon her release and that this would be a positive factor with respect to her continued rehabilitation. Counsel further submitted that the appellant has demonstrated contrition, remorse and insight into her offending, illustrated by the terms of the letter of apology that was read at the sentencing conference.
Given the circumstances of the offending, all of these matters were important to a proper assessment of the appellant’s likelihood of reoffending and prospects of rehabilitation. There is some force in the argument that the Judge may have given less weight to these matters than was warranted. However, this would not be sufficient to establish a process error in the House v The King[8] sense. What the appellant must establish in order to succeed on ground 4 is that the Judge failed to take such matters into consideration. However, the Judge presided over a lengthy and comprehensive section 9C conference. His Honour received detailed submissions from the parties on the next day and sentenced the following day. It is unlikely that the various matters bearing on the question of rehabilitation examined at length during the 9C conference and in submissions did not form part of his Honour’s considerations.
[8] [1936] HCA 50; (1936) 55 CLR 499.
Ultimately, it is not necessary to form a final view with respect to ground 4. The various factual matters canvassed in this context are personal considerations of some significance to the question of manifest excess to which I now turn.
Ground 5 – manifest excess
The appellant submits that each of the three sentences imposed was manifestly excessive and in combination resulted in a total period of imprisonment and a non-parole period which were manifestly excessive.
9 May 2016 and 18 May 2016 offending
The appellant contends that the starting point of 12 months imprisonment for the offence of theft, committed on 9 May 2016, was manifestly excessive, when proper consideration is given to the circumstances of the offending, the personal circumstances of the appellant at that time, the appellant’s antecedents and her prospects for rehabilitation.
With respect to the offences of theft and illegal interference with a motor vehicle committed on 18 May 2016, the appellant submits that the starting point of six months also was manifestly excessive. The offending was opportunistic. The illegal interference offence was not a serious example of offending of this nature. The appellant opened an unlocked door of the motor vehicle to take property from inside the vehicle. The offending did not involve any damage to or theft of the motor vehicle.
The respondent contends that the starting points of 12 months and six months respectively were within the sentencing discretion of the Judge. Counsel for the respondent concedes that these two starting points were not lenient but submits that any leniency afforded had to be limited by virtue of the appellant’s history of previous offences of dishonesty.
August 2016 offending
With respect to the offences of aggravated serious criminal trespass and aggravated robbery, the appellant contends that the starting point of eight years was manifestly excessive in that it failed to properly reflect the nature of the offences and fell within a range usually reserved for more serious examples of such offending.
The respondent contends that the sentence did appropriately reflect the seriousness of the offending, as properly characterised by the Judge. The offending involved several instances of violence towards the elderly victim in her own home and the appellant made multiple threats to kill the victim. The victim genuinely believed the threats and the offending has had an ongoing effect on her.
The respondent accepts that the violence had not been premeditated. However, the appellant did not flee upon the victim returning unexpectedly but chose to remain and inflict a violent attack. The jewellery stolen had an estimated value of $20,000. Counsel again submitted that the appellant’s background of offending, whilst not as serious as the present offending, militated against leniency.
Consideration
In R v Delphin, the Court of Criminal Appeal considered the factors relevant to determining the seriousness of an offence of aggravated serious criminal trespass.[9]
Leaving aside factors personal to the offender, three factors would appear to be relevant. One is the nature of the entry and whether gained by force, threat or deception, the amount of damage caused to the premises, the extent of necessary planning and other like factors relating to the nature of the trespass. Another factor would appear to relate to the intention upon entry, and that opens up a range of possibilities from simple assault to homicide, a range of possible sexual offences as well as larceny and damage to property. However, where the serious criminal trespass offence is constituted by entry, it is the intention at that time that is relevant, and not some change of intention which occurs later while the defendant is on the premises.
The Court went on to consider appropriate sentencing standards for offending of this kind.[10]
[I]t would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20–24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender. Relevant factors will include the nature and circumstances of the trespass and the impact of the entry on the victim. Where other and more specific intentions of an offender can be alleged, that will be important in assessing the gravity of the offence. Such an intention may range from petty theft to larceny of very valuable property, from minor assault to killing or to a range of possible sexual offences. The more heinous intention will be likely to give rise to a heavier sentence.
Where there are previous similar offences, an offence could expect to attract a higher penalty. …
In the case of aggravated serious criminal trespass in a place of residence, one hesitates to suggest an appropriate range of penalties, given the wide variety of aggravating circumstances that may apply, and it would be inappropriate to attempt such a prescription. It is sufficient to say that circumstances surrounding the nature of the trespass, the relevant intention, the effect on the victim and the circumstances of aggravation in s 170(2) will largely determine the extent of any greater penalty, leaving aside any factors personal to the offender.
[9] [2001] SASC 203; (2001) 79 SASR 429 at [42].
[10] [2001] SASC 203; (2001) 79 SASR 429 at [47]-[49].
With respect to sentencing standards for the offence of aggravated robbery, the remarks of the Court in R v Place[11] and R v Curry[12] are of assistance. In R v Place, Doyle CJ, Prior, Lander and Martin JJ observed the following.[13]
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.
[11] [2002] SASC 101; (2002) 81 SASR 395.
[12] [2016] SASCFC 16.
[13] [2002] SASC 101; (2002) 81 SASR 395 at [100].
The respondent acknowledges that the standard in R v Place is not directly applicable to the present case; the appellant’s offending was committed in a place of residence and the appellant was not armed. In R v Curry, Kourakis CJ made the following remarks regarding sentencing for aggravated robbery of an individual.[14]
Sentences imposed for robberies of individuals have historically fallen below the range identified in R v Place. There are several reasons why that is so. Robberies of individuals are often opportunistic. They generally do not put as many people at risk. Nonetheless some robberies of individuals do warrant a sentence within, or higher than, the range applicable to armed robberies of businesses. In this case the appellant inflicted significant harm on the victim. Additionally, the use of the gun to threaten the victim substantially added to his terrifying ordeal.
[14] [2016] SASCFC 16 at [3].
Counsel for the appellant referred to R v Humby[15] in which this Court imposed a head sentence of eight years, reduced from a starting point of nine years on account of a guilty plea, for the offences of aggravated serious criminal trespass and robbery in company.
[15] [2004] SASC 358.
In that case, the Court held that there were a number of features which put the offending at the higher end of the scale of seriousness. Humby and his co-offender made a forced entry to a private residence in an isolated area in the early morning, with the intention to rob the two elderly occupants. The offending was premeditated and the offenders were aware that the occupants were present in the house. The offenders masked their faces and were armed with wrenches, with which they threatened the occupants while ransacking the house over a period of more than two hours, before tying the occupants to chairs and leaving with various items of property. At the time of the offending, Humby was on parole, having been released from custody four months earlier, and had multiple prior convictions for theft offences.
According to King CJ in The Queen v Morse[16] the factors to be considered in determining whether a sentence is manifestly excessive are the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offence committed when compared with other examples of the offence in question; and the personal circumstances of the offender.
[16] (1979) 23 SASR 98 at 99.
In Hili v The Queen[17] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this.
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
(citations omitted)
[17] [2010] HCA 45; (2010) 242 CLR 520 at [59].
The appellant’s offending on each of the three occasions cannot be said to be in the category of the most serious examples of offending of its kind.
The age and vulnerability of the victim of the offending on 28 August 2016 are, of course, significant factors. However, it was accepted by the prosecution and the Judge that the appellant’s intention upon entering the house was limited to an intention to steal, before being surprised by the victim returning to the house. The physical attack on the victim was impulsive and not premeditated. The victim did not suffer serious physical injuries. The appellant did not act in company nor use a weapon. The aggravating circumstance was the appellant’s knowledge at the time of committing the offence that the victim was over the age of 60 years.[18] The appellant does not have a history of similar offending.
[18] Criminal Law Consolidation Act 1935 s 5AA(1)(f).
Having regard to the matters identified by King CJ in Morse, the starting point of eight years selected by the Judge was outside the range available for this offending committed by this offender.
In addition, each of the starting points of 12 months and six months for the 9 May 2016 and 18 May 2016 offending, respectively, were also outside the range available and legally unreasonable.
The combined starting point of nine years and six months for all of the offending, after taking into account not just its undoubted seriousness but this offender’s personal circumstances, reinforces my view that the ultimate sentencing outcome also is manifestly excessive. It is not necessary to consider the appellant’s related complaints concerning the non-parole period and totality.
In the circumstances, particularly given the period of time during which the appellant has been in custody to this point, before proceeding to resentence I would find a pre-sentence report to be of assistance.
For these reasons, I would allow the appeal, set aside each of the District Court sentences and order a pre-sentence report. Once such a report becomes available I would invite each of the parties to provide a short supplementary written submission before proceeding to resentence. I would remand the appellant in custody pending sentence.