R v Hughes; R v Rigney-Brown

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHES; R v RIGNEY-BROWN
[2016] SASCFC 126
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Lovell)
2 December 2016
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER
Application by the Director of Public Prosecutions for permission to appeal against non-parole periods.
On the evening of 22 August 2015, Ethram Hughes, David Rigney-Brown and another robbed a taxi driver after the driver asked them to pay in advance. David Rigney-Brown and the other passenger punched the taxi driver in his stomach, shoulders, face and lips. While that offending took place, Ethram Hughes took coins from the centre console of the taxi.
The respondents have broad criminal histories, the majority of their offending having been committed as minors. The respondents also have a number of antecedent characteristics in mitigation having been subject to abuse and neglect as children, as well as variously being homeless and addicted to drugs.
The sentencing Judge also sentenced Ethram Hughes for a number of other offences including: aggravated robbery; two offences of serious criminal trespass; two offences of theft; an offence of illegal use; an offence of unlawful damage, and sexual offences committed in the course of a consensual relationship with his then 16 year old girlfriend.
The respondents plead guilty to all of the offences of which they were charged. At the time of the taxi robbery Ethram Hughes was 18 years old and David Rigney-Brown was 19 years old. The sentencing Judge also conducted a sentencing conference pursuant to s 9C of the Criminal Law (Sentencing) Act 1988 (SA).
David Rigney-Brown was sentenced to a head sentence of four years, two months and 12 days after a 30 per cent reduction accounting for his guilty plea. The Judge fixed a non-parole period of 18 months. This sentence was higher than the one imposed for Ethram Hughes due to David Rigney-Brown’s prior convictions in the Youth Court for robbery.
For the taxi robbery, Ethram Hughes was sentenced to a head sentence of three years and six months, also after a reduction of 30 per cent. The Judge sentenced Ethram Hughes for his other offending on the basis of serving a combination of cumulative and concurrent sentences, with the effect being a head sentence of seven years. Overall, a non-parole period of two years and six months was fixed on behalf of Ethram Hughes.
The Director appeals the non-parole periods on the grounds that they are manifestly inadequate.
Held per Kourakis CJ (Peek and Lovell JJ agreeing) dismissing the appeal:
1.   The reasons for differentiating between the sentencing of youths and the sentencing of adults do not cease immediately upon reaching adulthood.
2.   The respondents have been disadvantaged by their social deprivation and marginalisation, and so their moral culpability is relatively less.
3.   The non-parole periods imposed by the sentencing Judge were significantly longer than any previous periods of imprisonment or detention. In the case of youth, incremental increases in sentence may sufficiently serve the purposes of personal deterrence.
4.   Supervision on parole is more intensely managed than any other corrections order, the respondents have not yet had the opportunity to reform themselves through a period on parole.
Criminal Law (Sentencing) Act 1988 (SA) s 9c; Correctional Services Act 1982 s 74, s 76(1)(b), referred to.
Arnold v Samuels (1972) 3 SASR 585; R v Creed (1985) 37 SASR 566; R v Grose (2014) 119 SASR 92, applied.
R v F, AB [2011] SASCFC 73; R v R, AW (2012) 113 SASR 179; R v Macgowan [2012] SASCFC 138; R v Palmer [2016] SASCFC 34, discussed.

R v HUGHES; R v RIGNEY-BROWN
[2016] SASCFC 126
Court of Criminal Appeal: Kourakis CJ, Peek and Lovell JJ

KOURAKIS CJ: This is an application by the Director of Public Prosecutions (the Director) for permission to appeal against the non-parole periods fixed for sentences imposed on the respondent David Rigney-Brown for a single offence of robbery and the respondent Ethram Hughes for two robberies and a number of other offences.
On the evening of 22 August 2015 Ethram Hughes and David Rigney-Brown, together with another man, robbed a taxi driver (the taxi robbery). The taxi driver asked that the men pay in advance because they appeared to be intoxicated. In response one of the men accused the driver of asking for the advance payment because they were ‘black’. The taxi driver denied that that was so but was then punched by David Rigney-Brown in the stomach, shoulders, face and lips. His turban was knocked from his head. Whilst David Rigney-Brown and the other passenger assaulted the taxi driver, Ethram Hughes took coins from the centre console of the taxi.
Before sentencing, the Judge conducted a conference pursuant to s 9C of the Criminal Law (Sentencing) Act 1988 (SA)[1] (the s 9C conference). In R v Grose[2] Gray J described a s 9C conference as follows:
[57]The conference is designed to enable a sentencing court to be informed of matters relevant to the sentence of an Aboriginal defendant by providing a culturally sensitive forum. An Aboriginal Justice Officer is, in conjunction with the court, in charge of the conference. The judge, in a real sense, is an observer who is to be informed through the conference. By this process, the court is better able to fashion an appropriate sentence. The conference allows the court to better engage Aboriginal defendants in the criminal justice process by assisting them to understand the consequences of criminal offending. Further, the conference engages the community of which the defendant is a member for the purposes of giving the proceeding greater legitimacy and relevance, and improving the prospects of the defendant not reoffending.
[58]It is to be recognised that courts are limited in their capacity to address over-representation of Aboriginal people in prison, given they are necessarily reacting to criminal conduct that has already occurred. However, s 9C provides an avenue by which the court system can be more sensitive and responsive to the needs of Aboriginal people in situations where to proceed in the ordinary way risks the court not being fully apprised of all relevant factors.
(citations omitted)
[1] Section 9C of the Criminal Law (Sentencing) Act 1988 (SA) provides:
9C—Sentencing of Aboriginal defendants
(1)Before sentencing an Aboriginal defendant, the court may, with the defendant's consent, and with the assistance of an Aboriginal Justice Officer—
(a) convene a sentencing conference; and
(b) take into consideration views expressed at the conference.
(2)A sentencing conference must comprise—
(a) the defendant and, if the defendant is a child, the defendant's parent or guardian; and
(b) the defendant's legal representative (if any); and
(c) the prosecutor; and
(d) if the victim chooses to be present at the conference—the victim, and, if the victim so desires, a person of the victim's choice to provide assistance and support; and
(e) if the victim is a child—the victim's parent or guardian.
(3)A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) one or more of the following:
(a) a person regarded by the defendant, and accepted within the defendant's Aboriginal community, as an Aboriginal elder;
(b) a person accepted by the defendant's Aboriginal community as a person qualified to provide cultural advice relevant to sentencing of the defendant;
(c) a member of the defendant's family;
(d) a person who has provided support or counselling to the defendant;
(e) any other person.
…
[2] (2014) 119 SASR 92, 109.
The sentencing Judge would have fixed a sentence of six years for David Rigney-Brown’s offending in the taxi robbery. But, on account of the guilty plea he entered on his committal the Judge sentenced him to four years, two months and 12 days (a reduction of 30 per cent). The Judge fixed a non‑parole period of 18 months. The Judge’s starting point for Ethram Hughes’ sentence for the taxi robbery was five years imprisonment. The starting point for David Rigney-Brown’s sentence was higher than Ethram Hughes’ starting point because he had prior convictions for robbery in the Youth Court. The Judge also reduced Ethram Hughes’ starting point by 30 per cent, for the guilty plea he had entered on his committal, to a sentence of three years and six months.
Ethram Hughes also fell to be sentenced for other offences including an aggravated robbery at a Caltex service station (the Caltex robbery) in the early hours of the morning just three days after the taxi robbery. The service station attendant was threatened with a tyre lever and was robbed of his wallet containing about $280 in cash and various cards, the till containing $200 cash was also stolen. The Judge would have imposed a sentence of seven years for the Caltex robbery but reduced that starting point ‘in round terms’ by 30 per cent to four years and 11 months imprisonment accounting for Ethram Hughes’ guilty plea. The Judge ordered that Ethram Hughes serve the sentence for the taxi robbery, in part, concurrently with the sentence imposed for the Caltex robbery. The result was that 25 months of the taxi robbery sentence was served cumulatively on the sentence of four years and 11 months imposed for the Caltex robbery. The Judge imposed concurrent sentences of imprisonment for the following additional offences to which Ethram Hughes had pleaded guilty:
·two offences of serious criminal trespass;
·two offences of theft;
·an offence of illegal use;
·an offence of unlawful damage; and
·sexual offences committed in the course of a consensual relationship with his 16 year old girlfriend when Mr Hughes was 18.
The Judge fixed an overall non-parole period of two years and six months for what was a head sentence total of seven years’ imprisonment.
The non-parole periods fixed for the respondents are 36 per cent of their respective head sentences. The Director has appealed against the non-parole periods fixed by the Judge on the grounds that they are manifestly inadequate. There is no appeal against the head sentences. The ultimate issue on the appeals is a relatively straight forward and commonly encountered one. It is whether the non-parole periods fixed by the Judge were supported by a proper exercise of the sentencing discretion. Whether the Judge applied the discretion appropriately is determined by considering: the relevant sentencing principles established by judgments of this Court; the features of the offending; the circumstances of the offenders; and the head sentences fixed by the Judge. The appeals also raise the question whether, even if the non-parole periods are manifestly inadequate, permission to appeal should be given having regard to the public interest against twice placing the liberty of defendants in jeopardy.
However the factual circumstances of the respondents’ offending and their antecedents acutely raises the tension between the competing sentencing purposes which judges must balance when punishing offenders for crimes borne out of great social, educational and financial impoverishment. The respondents were born into communities of entrenched social disadvantage. They were subject to parental neglect and abuse. They subsequently became homeless and addicted to drugs. These factors denied them meaningful social engagement and the development of adult moral responsibility which comes with it. On the other hand, those very circumstances remain criminogenic factors which call for community protection and deterrence.
The Courts do not balance these competing considerations subjectively but by reference to a coherent body of sentencing principles and precedent. In the ordinary course, having regard to the purposes of parole, a non-parole period of less than 50 per cent of the head sentence can only be justified by good evidence of solid prospects of rehabilitation and indications that the risk of recidivism is low. There was no such evidence with respect to either of the respondents. Yet, at the time of the commission of the offences Ethram Hughes was just 18 and David Rigney-Brown 19. Sentencing principle recognises that the good reasons for differentiating between youths and adults do not vanish when the clock strikes midnight on the day before an offender’s eighteenth birthday.
There are additional principle based reasons which support the relatively low non-parole periods fixed by the Judge. First, through no fault of their own, the respondents did not develop adult insights, values and responsibility because of their social deprivation and marginalisation. For that reason their moral culpability is relatively less. Secondly, the non-parole periods were significantly longer, particularly in the case of Ethram Hughes, than any earlier imposed periods of imprisonment or detention. The law of sentencing recognises that in the case of a youth incremental increases may sufficiently serve the purposes of personal deterrence. Thirdly, supervision on parole is more intensely and strongly managed than any other corrections order. The respondents have not yet had the opportunity to reform themselves through a period on parole.
For these reasons, on which I elaborate below, the Director has failed to show that the circumstances of the offending and the respondents’ poor antecedents require that this Court increase the non-parole period despite the countervailing considerations I have mentioned. Permission to appeal should be refused.
Victim impact statements
The victim of the Caltex robbery described his debilitating stress reaction to the robbery in the following way:
I was in great fear and stress for almost a month after that incident. During that period I was mostly thinking that what if something happened to me in all that incident, who will take care of my family.
It also affect my job and I did not want to work at the place because of the fear and stress. So have to find another job.
The taxi driver down-played the effects of the protracted assault on him saying that he did not have a physical injury other than ‘a sore shoulder and lips’. The taxi driver also adopted a stoic stance to his ongoing fears explaining:
As I am still working as a taxi driver I have little bit fear to give a ride to Aboriginal people but sometime I found all Aboriginal people are not bad. But still I have fear to take Aboriginal people in the taxi.
The first 19 years of the life of David Rigney-Brown
David Rigney-Brown was born on 17 December 1995 and just nine months later was admitted to hospital with fractures to one of his legs and both hips. He spent the next 10 months of his infancy there. His assailant was probably a member of his own family but to this day David Rigney-Brown is not sure who it was. He continues to be disabled by arthritic pain and suffers from a reactive depression for which he takes prescribed medication.
David Rigney-Brown was discharged from hospital into the care of his grandmother and later placed in many different foster homes. Both of his parents were in custody for most of his childhood. His fondest childhood recollection is some two years which he spent with the families of his aunt, uncle, and three cousins. David Rigney-Brown’s sister, Iris, with whom he has a good relationship, told the s 9C conference that their grandmother raised them and their siblings for much of their lives.
David Rigney-Brown was smoking cannabis by the time he was nine and experimenting with amphetamines when he was 15. By the time he was 18 he was a heavy user of amphetamines.
David Rigney-Brown was detained in youth detention facilities intermittently from the age of 10. He appeared in Adelaide and Elizabeth Children’s Court 21 times between 2009 and 2013. His long offending history commenced with offences of property damage, primarily graffiti, and then progressed to street offences. In September 2009, aged 13, he was sentenced for robbing a delicatessen at knife point and stealing $438. For that offence he was placed on a bond which was breached just six days later when he attempted another robbery. The sentencing remarks in the Youth Court do not reveal the nature of the community corrections programs and supports he was offered when first released on the bond and why they failed. In April 2012, he was sentenced to three months’ detention for the offence of escaping from a training centre on 27 February 2012.
Very shortly after completing that period of detention, on 17 August 2012 David Rigney-Brown was sentenced for another offence of robbery. He was sentenced to nine months’ detention which was suspended upon him entering into a bond. Within a short time of being released on the bond, he committed an offence of attempting to steal using force for which he was sentenced to 12 months’ detention on 5 April 2013.
David Rigney-Brown turned 18 in December 2013. His first relevant offending as an adult was an assault committed just before he turned 19 and for which he was sentenced to imprisonment for 15 weeks. Between March 2015 and December 2015, he committed offences of interfering with a motor vehicle, theft and carry offensive weapon. For those offences he was convicted and sentenced to three months’ imprisonment. He was released from prison in late June 2015. The taxi robbery was committed just two months after his release.
David Rigney-Brown has many prior convictions for failing to comply with bail agreements. On one occasion, he cut off a monitoring transmitter which he was obliged to wear as a condition of home detention.
David Rigney-Brown has little more than a primary school education. He started Year 8 at Gawler High School but had to withdraw before the end of his first term when he was sentenced to detention at Magill Centre. He was later enrolled for a short time with the flexible learning option program at Smithfield High School. He had some work experience with Scott Salisbury Homes but has never had paid employment.
David Rigney-Brown told the community corrections officer who prepared the Pre-Sentence Report (PSR) for the Judge that he ‘does not believe he is strong enough to resist temptation [of drugs] by himself’. The PSR describes David Rigney-Brown’s criminogenic factors in this way:
The primary criminogenic factors appear to be substance abuse, antisocial associates and poor impulse control. Despite the defendant claiming to me that he offends by himself, JIS records and Police Apprehension reports provide that the majority of offences committed since 2014 have been in the company of others.
The defendant appears to have no intention or desire to cease his drug use when not in custody, which if not addressed, will continue to make him vulnerable to future offending and risk-taking behaviour. He also reports to not being willing to disassociate with his peers who seem to be a catalyst for his pro-criminal behaviour.
Two observations should be made about those passages. First, there is an obvious distinction between David Rigney-Brown entertaining self-doubt about his ability to resist the temptation of drugs and the conclusion that he has no desire to do so. The PSR does not disclose why the author reached the latter conclusion. Secondly, the PSR makes no reference to a number of significant criminogenic factors like his separation from his parents so soon after his birth, the entrenched social disadvantage of his community, and his poor education and employment record.

David Rigney-Brown committed the offending outlined above and is culpable for his actions. The sentencing remarks for the offences committed as a youth demonstrate, from time to time, lenience on behalf of the sentencing judge. Yet, David Rigney-Brown also spent parts of his formative years in detention, and even more time released on bonds and under the supervision of the State. It is unfortunate that despite his ongoing contact with the justice system, more positive steps have not been made. Indeed, as David Rigney-Brown himself told the s 9C conference, he feels disenfranchised:
PRISONER RIGNEY-BROWN: I want to say, the juvenile system and the adult system, because I started going at a young age, and just all the promises and the stuff people give to you, I know you've got to make a commitment of doing that too, but all the promises that workers and that have said to me they're going to do for me when I do get released, none of it really happened. When I have been in custody they said they're going to come and help me and none of that has really happened. Some of them do try to help us but they have a lot bigger problems that they have to handle and they're not - it's just how it is there, no rehabilitation at all. Like, yeah, they give kids games and let them do whatever, it is just teaching them to come back and back. Like the schooling, I don't know if they think it, but it's like they think we all can't read and write because they all give us stuff a little five year old would be able to do.
I accept that David Rigney-Brown could have done much more himself to make better choices. But, his story does show that he did not find some, at least, of the programs he was offered helpful in improving his education and skills or his employment opportunities.
David Rigney-Brown’s one significant interest in life is portrait drawing. An example of his work was provided to the Judge.
In response to a question from the Judge about what he intended to do on his release, David Rigney-Brown replied:
PRISONER RIGNEY-BROWN:      Yeah, the first step I want to do when I get out is get my life back on track, get a house and try and get a job and as hard as it can be, stay away from the people that I’ve been hanging around with, but I can’t really say I can because some of them are my family and I’m not going to turn them down for, yeah, nothing really. And, yeah, like Greg said, I’m very shameful for what I’ve done that day and I was under an extreme amount of stress and under the influence of drugs and alcohol. But there is no real way of me showing that I’m sorry for what I’ve done but I truly am and, like he was saying before, my older sister and my younger sister have always been a big support for me and always will be and, yeah, I can’t thank them enough for what they’ve done for me in the past. I’ve been making silly mistakes that I have and, yeah, like some of my younger peers do see me as like a role model but I don’t see myself as a role model because where I am and what I’ve done. All I can tell them is, show them the right way of living life and giving them the right advice, but before I do so I have to think about getting myself on track and, yeah, changing my life.
HIS HONOUR:     What advice will you give the young ones?
ACCUSED RIGNEY-BROWN:       I will just tell them that gaol is not the life. I have wasted so many years in gaol and I've just had enough and just tell them that, and that it's no place to be. You don't think what you have until you lose it, do you know what I mean?
HIS HONOUR:     That's true but you've lost it a few times now, really.
PRISONER RIGNEY-BROWN:      yeah, I know.
HIS HONOUR:     You have been at Cavan and you've been at Yatala and you've been in Port Augusta, so what's going to stop you from going back again?
PRISONER RIGNEY-BROWN:      I will try and pursue my art dream and just follow that.
The video footage of the attack on the taxi driver was played in the course of the s 9C hearing. After viewing it David Rigney-Brown said he was speechless and he did not know ‘what to say or think’ in relation to his behaviour.
The first 18 years of the life of Ethram Hughes
Ethram Hughes was born in Victoria on 14 November 1996. He came to South Australia when he was 13 after living in Western Australia for a short time with his brother. His childhood is marked with instability and uncertainty.
His earliest memories of family life are his father’s drunken and violent beatings of his mother. The violence continued even after his parents separated. Ethram Hughes too was often ‘belted’ by his father. He grew up regarding intra-familial violence as normal. The violence was so unpredictable and indiscriminate, that Ethram Hughes had no sense of safety or security as a child. He was often left at home on his own and was very fearful. He described sitting outside his home when he was eight and nine waiting for someone to arrive, saying that he was ‘scared outside, but more scared [home] on my own’. He spent much time on the streets in the company of older boys. He was largely living independently by age 12.
Ethram Hughes is the only child of his mother and father but has a number of half siblings through his father. He grew up with one half-brother yet his contact with his other half siblings is infrequent. Ethram Hughes’ mother was his primary carer but she was severely addicted to methamphetamine and heroin. As a result she was often away from home, either because of her drug abuse or incarceration. In her absence Ethram Hughes was cared for by his maternal grandmother, Mrs Hilda Murray. The family moved often between Victoria, New South Wales, and South Australia.
When in Perth, Ethram Hughes lived with paternal relatives. He described his time with them as the most positive experience of his childhood. He left that secure and positive environment to travel to Adelaide when his mother requested that he and his brother come to stay with her after her release from gaol. He was 13 when he returned to Adelaide to support his mother, but she reoffended within a few months and returned to gaol. Ethram Hughes described himself as being ‘on my own again, with no one there to help me’. His half-brother and other family returned to Victoria, but Ethram Hughes stayed in Adelaide for the next three years ‘couch surfing’, staying with his girlfriend or wandering the streets. In that time, he smoked cannabis, abused alcohol and amphetamines, and engaged in offences of dishonesty to support himself.
After serving a period of detention at Magill Training Centre Ethram Hughes returned to Victoria to live with his extended family and Mrs Murray hoping to change his ways. However, he soon reverted to drug and alcohol abuse. He returned to Adelaide again at age 17.
Ethram Hughes stopped regular school attendance after year 5 or 6 in primary school. He cannot remember when. He returned to school for a short time at year 8 level when he was in Western Australia. He finally left school when he was approximately 14 because of constant changes of address. He described his own literacy and numeracy skills as ‘not bad but not good’. He has completed some courses in horticulture, administration, media studies, and hospitalities at the Cavan Youth Detention Centre.
Ethram Hughes has had no work experience or vocational training.
Ethram Hughes is generally in good health, but has occasionally suffered alcoholic blackouts resulting in admissions to hospital emergency departments.
A statement from Ethram Hughes’ mother was read to the conference. She said that Ethram Hughes had copped it harder than his brother because of her drug abuse.
Ethram Hughes has lost many family members through suicide. He himself has been depressed for a long time. The depression deepened when he was living in Victoria before his return to Adelaide. He now takes antidepressant medication prescribed by the Prison Health Service and his mood has stabilised. Ideation of self-harm is noted in his prison health records.
Ethram Hughes’ offending is often opportunistic; a pattern which he himself recognised saying to the psychologist, Ms Darmenia, who prepared a forensic psychiatric report, that:
There is no real rush … I will just see something and if I want it, I will get it. Even if someone is there. I don’t know why. It’s only when I am on alcohol or drugs that I don’t care about the risk. If I am sober I would think it through and not risk it. That has happened a lot.
…
At first it was about the money and getting nice things or whatever. Now it’s more spontaneous … off my head, not even what I go after.
When asked to reflect on the impact of his offending as reported by his victims, Ethram Hughes responded ‘It hurts when they say that. You feel bad because you never thought about that. But out there, you don’t think about it’.
Ethram Hughes’ grandmother, Mrs Murray, moved to Adelaide to support him after his apprehension on these offences. I have appended to these reasons the transcript of Mrs Murray’s admonition of her grandson in the s 9C conference. Mrs Murray’s moving plea to her grandson laments the drug and alcohol abuse and violence which has afflicted her children and grandchildren. Mrs Murray graphically contrasts their condition with the impoverished, but proud, existence of her generation. Mrs Murray’s observations on the destructive consequences of the ready availability of drugs and the lack of education and work on Aboriginal communities in modern times reflects the experience of this Court. Mrs Murray remonstrates with her grandson to ‘do what you have got to do for your crimes’ and then on his release, to give her no more than the satisfaction of seeing him ‘be something’.
In the s 9C conference Ethram Hughes expressed a desire to return to Western Australia. He stated that his goal in the future was ‘to be around the people who matter the most not the negatives’.
Ms Darmenia made the following assessment of Ethram Hughes:
Although Mr Hughes indicated that he did not want “to get into any more trouble”, he had only a simplistic perception of how he would avoid the same patterns of drug use and offending in the future. His future plans at this stage are vague, although he would readily acknowledge the negative impact of his peers and compare this to the more positive experiences he has had with extended family. He has had problems with maintaining the conditions of prior supervision (including completing drug rehabilitation). Mr Hughes’ general repertoire of prosocial life skills is at present very limited. He will require a comprehensive case-management approach to community supervision in the future, addressing his needs in an holistic fashion and encouraging practical supports. To his credit, Mr Hughes has not attempted to defray responsibility for his own actions in offending and on interview, consistently presented as taking responsibility for his own choices. He currently presents in the early stages of change (contemplation) in regard to his very significant substance abuse problems, and this should be followed up with a motivational interviewing approach before direct intervention, preferably well prior to Mr Hughes’ release back to the community. He does present currently as a young man at high risk of re-offending without appropriate intervention, rehabilitation and practical supports in place on release.
Ms Darmenia’s recommendations for Ethram Hughes’ long term rehabilitation were:
·Drug and alcohol counselling;
·Psychological intervention/group treatment;
·Literacy and numeracy skills training;
·Practical life skills intervention; and
·Anger management intervention.
Sentencing remarks
In his sentencing remarks the Judge recorded the following observations of David Rigney‑Brown during the sentencing conference:
During the conference, however, I was impressed by the fact that you did not shy away from your appalling conduct. You actually showed a good level of insight into your own behaviour. You were extremely honest and forthright in your responses to my questions about your conduct and what it is that you need to do differently when you are released from prison.
You were very remorseful for what you did and you appeared to understand the impact which your conduct has had on the victim.
The sentencing Judge described his interactions with Ethram Hughes as follows:
Through your lawyer you have requested that the prosecutor pass on an apology to both of the victims in the taxi attack and the Caltex Service Station robbery.
I raised the issue of your attitude towards your offending, which was demonstrated in a telephone recording in which you were boasting of what you had done. You acknowledged that your behaviour was not good. I told you that if you really wanted to change your behaviour, as you claim you do, that you first need to change your attitude, otherwise you will end up living a life of crime and spending many years in prison.
You shared that you did not enjoy your first taste of adult prison life and that you do not want to hang out with your old friends once you are released from gaol.
Your grandmother then shared a very powerful testimony about your offending and how it is affecting her and your family and how she feels about your behaviour and worries about your future. She clearly cares for you a great deal and is very disappointed by the choices which you have made up to this point in your young life. It was evident how much pain and sorrow she has experienced as a result of your repeated criminal behaviour.
Up until then, you sat coolly in the conference as your matters were discussed by the participants. However, you became emotional once your Nan spoke. You were clearly affected by what she was saying to you and it would pay for you to remember her words the next time you are faced with making a choice between breaking the law or staying out of trouble.
The Judge observed the difficulty that David Rigney-Brown would face in extricating himself from the circumstances which led to his offending:
The Community Corrections officer who prepared the pre-sentence report, has said that your most challenging barrier to change your behaviour is your peers and the anti-social behaviour that their association promotes. Unfortunately, many of your criminal associates are your family members and it is impossible for you not to associate with your family. As you openly told me at the conference, you are not going to turn your back on them and I can understand and respect that. However, what you must do is make better choices when you are in their company and distance yourself from their criminal ways. If not, then expect to spend time in prison with them.
The Judge made the following observations on the respondents’ similar socioeconomic disadvantages:
Tragically, each of you is the product of your traumatic and dysfunctional upbringing. It is disheartening to see the cycle of a criminal life continuing because of your family upbringing, which featured abuse, neglect, violence, drugs and alcohol as a part of everyday life, which normalised such behaviour for you. In short, neither of you really stood any chance of avoiding a life of crime spent in youth detention and now adult prisons. That does not mean that you cannot turn that around.
The importance of the last observation in that passage to the disposition of these appeals, cannot be overstated.
After describing their respective roles in the taxi robbery, the Judge foreshadowed that David Rigney-Brown’s sentence for that offence would be greater than Ethram Hughes’ sentence because of the former’s previous robbery offences and the relatively greater need for personal deterrence.
The Judge was well aware of the tension between the imprisonment called for by the serious nature of the offending and the opportunity for rehabilitation offered by the respondents’ youth:
I made it clear during the course of the Aboriginal sentencing conference that due to the seriousness of your crimes, you would both be serving gaol time. The crimes which you have each committed are all extremely serious. Both of you are still very young men. However, as I also said during the conference, you are only young once and the leniency which the courts have shown you previously and now will soon pass as you get older.
The Judge explained his reasons for allowing David Rigney-Brown an extended period of parole as follows:
David Rigney-Brown, taking into account all of your mitigating circumstances and to encourage you to reform rather than harden your ways as a criminal, I am going to fix a merciful non-parole period of only 18 months, which will see you on parole for over two-and-a-half years. Should you reoffend during that time or not obey your parole conditions, then you are only going to end up back inside and that will likely be the start of many more prison sentences, I am afraid to predict.
The Judge then turned to the sentencing of Ethram Hughes for the other offences. The Judge sentenced Ethram Hughes to seven months for the offence of unlawful sexual intercourse to be served concurrently with all other sentences. His Honour sentenced Ethram Hughes to nine months’ imprisonment for dishonesty and criminal trespass offences committed in July 2015, again to be served concurrently; 17 months’ imprisonment for illegal use of a motor vehicle and criminal trespass and theft committed on 20 August 2015. The Judge’s sentence on the Caltex robbery, and its interrelationship with the sentence imposed on the taxi robbery, is explained in the following passages:
Finally, for the aggravated robbery of the Caltex Service Station attendant, which is a serious example of such a crime, given the number of offenders involved and the use of weapons to threaten the victim, you will be imprisoned for seven years. The sentence will be reduced by 30% in round terms to four years and 11 months imprisonment.
All of your offending occurred in the space of roughly two months and the breaks and robberies confined to a period of less than four weeks. So, in a sense, those offences can be viewed as one course of criminal conduct whilst under the influence of drugs and alcohol and designed to secure you more alcohol or money to buy drugs with. If I were to make all of your sentences cumulative, reflective of the separate and distinct crimes which you committed, your sentence would total 11 years and two months imprisonment, which, in my view, given your extreme youth at the time and your tragic personal circumstances, would amount to a crushing sentence.
Accordingly, to achieve a more merciful and proportionate sentence for the totality of your offending, I consider a sentence of seven years imprisonment to be appropriate. To achieve this outcome, I order that 25 months of the sentence for robbing the taxi driver be served cumulatively upon the sentence of four years and 11 months for holding up the Caltex Service Station attendant, with all other sentences to be served concurrently.
The Judge gave the following reasons for fixing an overall non-parole period of two years and six months for Ethram Hughes:
I turn to the setting of a non-parole period. Once again I have regard to your extreme youth and traumatic childhood, which has shaped who you have become. In order to encourage you to take a different path in life when you are released and for there to be a lengthy and assertive management of your criminogenic needs as recommended by the psychologist and the Community Corrections officer, I fix the non-parole period at only two-and-a-half years.
Conclusion
In R v Creed[3] King CJ authoritatively stated the principles on which a non-parole period is fixed as follows:[4]
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. It is necessary for the courts in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent. It is necessary, moreover, that the courts in fixing non-parole periods, no less than in fixing the head sentence, should make it clear that if there is repetition of crime, there will be no question of the punishment for the subsequent crimes being absorbed in that which is imposed for the earlier crimes, but that on the contrary the offender will have imposed upon him salutary punishment for the subsequent crimes also. The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
…
Counsel for the respondent mentioned, in the course of his submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two-thirds, in an ordinary case, of the head sentence. The members of this bench know of no such practice and speaking for myself, and I think the other two members of this Court, I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.
[3] (1985) 37 SASR 566.
[4] R v Creed (1985) 37 SASR 566 at 568-569.

In R v F, AB[5] I explained why it is consistent with those principles that even though there is no ‘norm’ the non-parole period generally will bear a proportionate relationship to the head sentence:[6]
[31]The very proposition that the non-parole period must, “no less than the head sentence”, reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence. Considerations of deterrence, prevention and punishment will militate towards a relatively higher non-parole period. The legislative policy of promoting rehabilitation through a supervised release into the community will work to lower the non-parole period. It is not surprising then that sentencing judges and appeal courts often consider the proper proportion the non-parole period should bear to the head sentence by reference to the nature of the particular offence and in terms of whether the offender’s prospects of rehabilitation are significantly better or worse than the generality of offending of that type. It is the balancing of these factors which will determine the “appropriate relationship to the head sentence” referred to by Vanstone J in Abdulla.
(citations omitted)
[5] [2011] SASCFC 73.
[6] R v F, AB [2011] SASCFC 73 at [31].
In R v R, AW Peek J observed:[7]
[53]It is well accepted that the judge must take into account all relevant matters relating to the offending as well as to the personal circumstances of the defendant both when fixing a head sentence and also when fixing a non-parole period. Nevertheless, there is a clear difference in emphasis of approach to the two tasks. When fixing a non-parole period, subjective matters personal to the defendant and his or her rehabilitation come into much closer focus and different weight may be given to these subjective factors than when fixing the head sentence. Thus Doyle CJ observed when fixing a non-parole period in R v Miller:
[42] As was indicated by the High Court in Shrestha, I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner's suitability for parole when the time comes.”
[7] R v R, AW (2012) 113 SASR 179 at [53]-[60].
…
[55]This difference has important consequences for any goal of uniformity in sentencing, particularly in relation to non-parole periods as distinct from head sentences. Putting the matter somewhat simplistically, while it may be realistic to aim for a certain degree of uniformity in head sentences (where there may be a focus on frequently re-occurring comparable sets of objective circumstances) it is less realistic to hope for comparable uniformity in non-parole periods which are more likely to be significantly affected by highly variable sets of subjective circumstances surrounding particular offenders. Thus in an important passage in R v Moyle Perry J (with whom Lander J concurred) stated:
There can never be a tariff for non-parole periods for any offence. The fixation of a non-parole period commonly involves an allowance for purely personal factors which have less relevance to the head sentence as opposed to the non-parole period. For that reason, it has always been accepted that there is much more scope for the exercise of a wide discretion in the fixation of the non-parole period as opposed to the determination of an appropriate head sentence in those cases where the fixing of the head sentence is in the hands of the Court.
…
[60]Secondly, the application of that principle by the courts over a period of time will tend to produce discernible patterns of proportionality of non-parole periods to head sentences in what may constitute the large majority of cases. However, to recognise the occurrence of that process is entirely different to stating that there is an a priori norm to which one must adhere when sentencing: this is the point powerfully made in the extract from R v Creed immediately above.
(citations omitted, emphasis in original)
Such is the variation between the personal circumstances of offenders that it is not possible, as King CJ observed in Creed, to be prescriptive about the proportion which a non-parole period will bear to the head sentence. However a non-parole period is not fixed by reference to a judge’s subjective assessment of a particular offender’s genuine readiness to rehabilitate and to the judge’s intuition as to the time which that offender should serve before release on parole will be successful. Judges have no such foresight. As Peek J observed in R v R, AW[8] established rehabilitation provides a solid base for a relatively lower non-parole period whereas ‘predictive rehabilitation’[9] is much more problematic.
[8] (2012) 113 SASR 179 at [71].
[9] R v R, AW (2012) 113 SASR 179 at [67].
Accordingly, an offender’s history of persistent recidivism and poor responses to parole supervision will generally result in a relatively higher non-parole period. In R v Palmer I explained:[10]
[10] [2016] SASCFC 34 at [2]-[6].
[2]The non-parole period is a very important part of a sentence of imprisonment.   Of course the starting point of the determination of the non-parole period is the head sentence. The head sentence is therefore the primary determinant of the non-parole period. However, the fixing of the non-parole period is a different discretionary exercise to fixing the head sentence, even though it is informed largely by the same considerations, and therefore warrants separate consideration.
[3]The purpose of fixing a non-parole period is to determine the optimum time at which the defendant will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period.
[4]Nonetheless the discretion demands a balancing of the competing sentencing objectives. A judge’s prediction about an offender’s future behaviour is not the determinative criterion. Indeed judges neither have a crystal ball nor any special intelligence with which to make such predictions. The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation. That balancing does not necessarily entail the making of a prediction. This is a fraught area. There is a real risk of heuristic error by judges who, for one reason or another, believe they have gained an intuitive understanding of the psychology of the defendants they are sentencing. The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.
[5]In this case the Judge gave no reason for fixing the proportion he did. The appellant’s offending history and past alcohol and drug abuse are poor indicators for rehabilitation.   On the other hand his:
•      long abstinence from using illicit drugs;
•      employment record after moving to Whyalla;
•      age;
•      supportive family; and
•      attempt to establish himself financially
are positive indicators.
[6]Importantly the appellant has not been sentenced to prison before and has therefore not had the benefit of supervision on parole. Recidivists who have not reformed after a period on parole are less likely to receive a non-parole period close to the lower end of the range both because personal deterrence will demand greater weight and because the Court will have less confidence in their prospects for rehabilitation. On the other hand, in the absence of any high risk factors, an offender who has not previously been supervised on parole is more likely to be given the benefit of serving a greater proportion of his or her sentence on parole.
Release on parole is strictly supervised by the Parole Board which, in the event of a breach, has the power to issue a warrant for arrest and ultimately cancel of parole. For example, s 76(1)(b) of the Correctional Services Act 1982 (SA) (the CSA) gives the presiding member or the deputy presiding member of the Board the power to issue a warrant for the arrest of an individual who is suspected of having breached a parole condition, for the purposes of bringing that person before the Board. Further according to s 74 of the CSA, the Board may order or direct a parolee to serve the balance of their sentence in prison if it is satisfied that they breached a condition of their parole.
There is good reason to maximise the opportunity for young offenders to reform their lives. The institutional experience of the Courts is that many young offenders do take advantage of the opportunity to do so. Moreover, to readily deny a youth that opportunity may condemn him or her to a lifetime of institutionalisation at great loss to the community. On the other hand, successful rehabilitation of course both protects and enhances the community.
In Arnold v Samuels, Bray CJ observed:[11]
It cannot be that all the considerations which have induced the law to make special efforts to reclaim youthful offenders disappear magically as the clock strikes twelve at midnight on the day before the offender's eighteenth birthday.
[11] Arnold v Samuels (1972) 3 SASR 585 at 596.
In R v Macgowan I set out the approach to non-parole periods with respect to youthful offenders:[12]
[20]I turn now to the non-parole period. Non-parole periods are commonly fixed at between 50 per cent and 75 per cent of the head sentence. It is the sentencing judge’s assessment of the prospects of rehabilitation which will most influence the actual proportion fixed in a particular case. Non-parole periods outside of that range will reflect either adverse or favourable circumstances which are not commonly encountered. That position is reflected in the statutory minimum non-parole period of four-fifths prescribed for serious repeat offenders. Whether or not the appellant’s prior offending made him vulnerable to a declaration to that effect need not be considered because no such application was made.
[21]To my mind, it is a serious step to conclude that a man as young as the appellant will not be a suitable candidate for rehabilitation on parole until he has served 75 per cent of a sentence as substantial as the head sentence imposed by the Judge. Non-parole periods should recognise the capacity for reform and change in young offenders and the importance of allowing them an opportunity to do so. Moreover, for sentences exceeding five years, release on parole is not automatic but subject to the discretion of the Parole Board.
[22]If the appellant’s prior offences had been committed as an adult, there could be no complaint about the high proportion, 75 per cent, which the non-parole period bears to the head sentence. The appellant’s offending history shows every indication of an intractable predisposition to offences of this kind and very little respect for the property of others or the laws which protect it. Nonetheless, it must be recognised that the appellant’s offending is, at least to some extent, the product of his juvenile immaturity, the absence of any family support and stability, and drug taking.
(citations omitted)
[12] R v Macgowan [2012] SASCFC 138 at [20]-[22].
I acknowledge of course that the offending history of the respondents suggests a poor prognosis for their rehabilitation. It also calls for a sentence which acts as a personal deterrent and protects the community. On the other hand, it would be harsh to deny the respondents an opportunity to prove their worth as adults because of their offending as children which arose out of circumstances over which they had little control.
The Judge, in the exercise of his discretion, decided to allow the respondents an extended period of supervised parole as adults so that they might turn their lives around. After weighing the respondents’ offending against their youth other judges may have fixed higher non-parole periods. However I cannot say that, in these two very difficult cases, the Judge was wrong in giving the relatively greater weight he did to the respondents’ youth than their past offending. More importantly I am not persuaded that even if the Judge had erred, this is one of those egregious cases which should be corrected by giving the Director permission to appeal.
I would refuse the Director’s application for permission to appeal.
APPENDIX
Statement of Mrs Hilda Murray to the s 9C Conference:
MRS MURRAY:   I just want to say, you need to change, and I mean it, that’s why I’m here today. How many times I’ve been to court. And drugs and alcohol is no good, that’s what screws, turns you stupid. I always believe that and I always will and I don’t like it. I don’t like alcohol. Alcohol is the one for violence. Marijuana is the one to wreck your brain, slows you down, takes you a long time to do anything, when you are asked to get it done.
You know I love you dearly. What I used to do, I’d take you to the skate rink, you had no mother, you had no father. Always rescuing you. I took you to your house, you walked in - you were only three - your house was all smashed up, glass everywhere, blood. Where was your mother? Don’t know. How many hours was this smashed? Three, or more than that. Your mother was bashed, hair pulled out. I wasn’t there, but I seen she had beautiful long, curly hair and it was all straggly, like rat’s tail. And another time a bloke went to smash her up against a brick wall. I went and rung the police, you were only three years of age. I had to walk you, I was getting chest pains. They were heart attacks, they weren’t just chest pains. And Daphne was taken to the hospital, I sent the police around then. But all these things, your mother used to sniff glue - liquid paper when she was only 12, that sent her silly. Your mother was abused and she was only 12 and she used to see what - she got trod on, she got bashed, she got her house broken. Drugs, then, that was it. Never mind the sons, sons had to rear themselves. You would always say ‘I’m a young boss’. One fella got his leg cut off, you remember that? You wouldn’t come with me, what, with a needle, amongst kids, and use. Then there’s Ali, all these miserable druggies and drunks, took your houses. You know, it’s so sad for me, but I’m a strong person. No-one will put me in the gutter, no-one. I’m just as good as the next person and I always will be. I’m too strong. That’s the way you think, put it in your head. ‘I done that, I done that, I done that, I done that and that and that. I’ll leave that, I’m doing it for me now’. And work in the community, do something for the other little kids that have grown up. You know there’s a lot of kids in care, they are taking them off the mother, drugs, alcohol, party time. It’s got to stop. You will have no life, you worry about you. Get on your feet, get a job, when you get out. Your uncle did the job in the mines, think of that. Look at the money you can make, look at what he’s got. My brothers all worked hard. They are all retired now. And my sister worked hard for money, I worked hard too, even when I had my kids. I might have crawled in the dirt for money, but it was clean, I tell you that. I used to row the way up the river, go picking, three miles, get a bit of bread to put on the table for me and my brothers and sister. That’s the way it was when we were kids but I tell you what I had, my freedom, when I was a kid. You fellas have got nothing, nothing, don’t know how to live, don’t know how to enjoy the life. We all went off bush walking, the beach, go fishing in the boats. And it’s sad to see what’s going on now. What about these other little kids coming up, who is going to look after them? Who is going to look after some of the old people? They are all dying at 40 and that. My brothers and sisters, out of nine of them, there are seven of us living still and we’re all in our 60s and that, 70s. Because we had to work hard, that’s what kept us going and education. Don’t forget your education mate, I love you but I’m telling you now, I can see what you can be, I know, I know. You got no culture, you know, and I know what you could be too. You got talent, think about it, get into music, that will lift you up. Be happy, write songs, be something and help one another like, yeah, we’ve got to do this so we can help our families. Who have I got to help me? I’ve only got my daughter, one daughter out of my nine kids. Course, there’s sickness in the family and I’m still going, I had operations, heart operations. You know, I died three times, when I was a little girl with measles, and heart attack and when I had my last son and when I had a heart operation and I’m still going. I feel good anyway, I’m not finished in this world, I want to live until I’m 100. I’m just here because of you, I see a lot of sadness and I can’t go anywhere much, only to the Elders, I can’t go anywhere much because, you know, there’s drugs, there’s alcohol, and I don’t want a bar of it. Makes you sad. Little kids getting neglected. There’s a lot of little kids in the homes over in Mildura but I tell you they are doing a lot of good work with the parents, they are working with them. And there’s old people who need carers, you know. Think of that. Everything goes good and nothing, you done all the crime, you know what - what do you really think you should be doing, tell me?
PRISONER HUGHES:   Looking after you.
MRS MURRAY:   Hey?
PRISONER HUGHES:   Go home and look after you.
MRS MURRAY:   Want to go home, look after me? You do what you have got to do for your crime, you know, and do things for yourself, that’s what I want, to see you be something.
PRISONER HUGHES:   Yes.
MRS MURRAY:   Be a footballer or something, get paid money for it, you don’t know, over there. Still, what I said the last time I come to court.
PEEK J: I would refuse the Director’s application and I agree with the reasons of the Chief Justice.
If I had sentenced at first instance, I would have imposed longer head sentences and fixed longer non-parole periods; but that is obviously not the test to be referred to here. After some hesitation, I have concluded that the sentencing Judge took all relevant considerations into account and that it has not been established that the non-parole periods he fixed were clearly beyond the bounds of his discretion in all of the circumstances. The application should therefore be refused.
LOVELL J: I agree with the order proposed by the Chief Justice and with his reasons.

[2016] SASCFC 126

2 December 2016

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Sentencing