R v Hutchins
[2009] SASC 275
•4 September 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUTCHINS
[2009] SASC 275
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice White)
4 September 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
Application by Director of Public Prosecutions for permission to appeal against sentence - defendant pleaded guilty to three counts of aggravated robbery - sentence of one term of imprisonment imposed of one year and eight months to be cumulative on a period of unexpired parole of one year, one month and 23 days - non-parole period of one year and 11 months fixed - whether sentence manifestly inadequate - whether sentence failed to reflect need to give effect to general and personal deterrence - relevance of defendant's mental condition.
Held: permission to appeal granted - appeal allowed - sentence in the circumstances so low as to shock the public conscience - sentence imposed manifestly inadequate - sentence set aside - defendant re-sentenced - consideration of reduced moral culpability.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 137(1) and s 352(1)(a)(iii); Criminal Law (Sentencing) Act 1988 (SA) s 10(1) and s 18A, referred to.
R v Nemer (2003) 87 SASR 168; R v Place (2002) 81 SASR 395; Ryan v R (2001) 206 CLR 267; R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431; Veen v R (No 2) (1988) 164 CLR 465; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24, considered.
R v HUTCHINS
[2009] SASC 275Court of Criminal Appeal: Gray, Anderson and White JJ
GRAY J:
This is an application by the Director of Public Prosecutions for permission to appeal against sentence.[1]
[1] Criminal Law Consolidation Act 1935 (SA) section 352(1)(a)(iii).
Joseph Donald Hutchins, the defendant and respondent, pleaded guilty in the District Court to three counts of aggravated[2] robbery.[3]
[2] Criminal Law Consolidation Act 1935 (SA) section 5AA relevantly provides:
Section 5AA—Aggravated offences
(1)Subject to this section, an aggravated offence is an offence committed in the following circumstances:
…
(b)the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
[3] Criminal Law Consolidation Act 1935 (SA) section 137(1) provides
(1) A person who commits theft is guilty of robbery if—
(a)the person—
(i) uses force, or threatens to use force, against another in order to commit the theft; or
(ii) uses force, or threatens to use force, against another in order to escape from the scene of the offence; and
(b)the force is used, or the threat is made, at the time of, or immediately before or after, the theft.
First Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph Donald Hutchins on the 3rd day of November 2008 at Para Hills, threatened to use force against Simon Dean Kotsano, in order to commit the theft of cigarettes and $45.00 cash, and the threat was made immediately before or at the time of the theft.
It is further alleged that Joseph Donald Hutchins used an offensive weapon, namely a hammer, when committing the offence.
Second Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Joseph Donald Hutchins on the 4th day of November 2008 at Prospect, threatened to use force against Darren Glenn Howard, in order to commit the theft of $365.00 cash, and the threat was made immediately before or at the time of the theft.
It is further alleged that Joseph Donald Hutchins used an offensive weapon, namely a hammer, when committing the offence.
Third Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Joseph Donald Hutchins on the 4th day of November 2008 at Prospect, threatened to use force against Wendy Campbell, in order to commit the theft of papers, an Australian Post Office money order receipt and $150.00 cash, and the threat was made immediately before or at the time of the theft.
It is further alleged that Joseph Donald Hutchins used an offensive weapon, namely a hammer, when committing the offence.
The maximum penalty for each offence is imprisonment for life.[4]
[4] Criminal Law Consolidation Act 1935 (SA) section 137(1) relevantly provides:
Maximum penalty:
(a)for a basic offence—imprisonment for 15 years;
(b)for an aggravated offence—imprisonment for life.
On 3 July 2009, the defendant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment for the three offences, of one year and eight months to be cumulative on a period of unexpired parole of one year, one month and 23 days – a total head sentence of two years, nine months and 23 days. A non-parole period of one year and 11 months was fixed. The sentence commenced on 3 July 2009.
On appeal, the Director submitted that the sentence was manifestly inadequate, as the sentence failed to maintain adequate standards of punishment for the offence of aggravated robbery; failed to reflect the fact that the offences were committed while the defendant was on parole; and the head sentence and non-parole period failed to reflect the need to give effect to general and personal deterrence.
Background
The three offences to which the defendant pleaded guilty occurred over the course of one hour in November 2008. The first offence occurred at 11.50pm on 3 November 2008 when the defendant entered a service station at Para Hills, pulled out a hammer from his sleeve and demanded cash and a packet of cigarettes. The attendant gave the defendant $45.00 and a packet of Escort Red cigarettes and the defendant left the premises.
The incident giving rise to counts two and three occurred less than an hour later, on 4 November 2008. The defendant entered a service station at Prospect, approached the attendant with the hammer and said, “Give me your fucking money or I’ll kill you”. The attendant gave the defendant $365.00. The defendant, whilst still holding the hammer, then approached a customer and demanded her wallet. The customer provided her purse to the defendant, and he removed $150.00, an Australian Post Office money order receipt and papers.
Less than half an hour later, the police apprehended the defendant. The vehicle that he had been driving matched the description of the vehicle which had been provided in relation to the first offence. The defendant was wearing clothing matching the description given by the victims. $350.00 was found on his person, and the police found a packet of Escort Red cigarettes and an Australian Post money order receipt in the vehicle. The defendant was placed under arrest and removed to the City Watch House.
At the time of the offending, the defendant was 27 years of age. He was born in South Australia to an Aboriginal mother and Caucasian father. The defendant’s parents separated when he was approximately one year old, and at the age of four years, he moved to Queensland and was placed in the care of his grandparents. He was placed in foster care at the age of 12 years and remained in that care until he reached the age of 17 years. He attended a number of different schools before being expelled in year nine. The defendant maintained employment from time to time in both Queensland and Adelaide. Prior to sentencing, the defendant indicated that in the future he hoped to obtain skills as a bricklayer and stated, “I need to get a job to support my family”. The defendant has a partner and child.
The defendant has a background of significant substance abuse. The defendant has used alcohol and marijuana from the age of 15 years, and methamphetamine and ecstasy from the age of 17 years. The defendant has also used cocaine and hallucinogenic drugs. Both marijuana and methamphetamine were used heavily. Against this background, counsel for the defendant drew to the Judge’s attention that the defendant was suffering significant stress at the time of the offending. The Judge when sentencing remarked:
You had a newborn to look after and your girlfriend was suffering depression. You were evicted from your house and had trouble finding suitable accommodation. You met up with old acquaintances from prison who offered you amphetamine on credit. You accumulated a drug debt which you were unable to repay. You were roughed-up by your creditors and you were afraid that they would pursue your family.
Your counsel told me that you committed the robberies to obtain money to reduce the drug debt.
The defendant was examined at the request of his solicitors by a psychologist, Dr Jack White. Following the assessment and testing of the defendant, Dr White formed the opinion that the defendant’s intellectual abilities were very limited and that he tended to de-compensate rapidly when affected by substance abuse. In Dr White’s opinion, the defendant was likely to satisfy the DSM-IV diagnostic criteria for mental retardation, alcohol abuse, cannabis dependence, amphetamine dependence, post traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood, antisocial personality disorder, borderline personality disorder and a pathological gambling disorder. Dr White expressed the view that the defendant’s very limited cognitive function may be linked to possible brain damage related to his past history of substance abuse.
It was Dr White’s opinion that as a consequence of these disorders, the defendant’s decision making was poor and was likely to lead him into conflict with the law. According to Dr White, the defendant had limited insight into the impact of his offending on his victims and that he had problems with anger and aggression expressed both directly towards others and inwardly. His personality profile indicated a person who was emotionally very unstable, with elevated traits of depression, anxiety, self-consciousness, impulsivity and anger and hostility.
According to Dr White, the defendant’s substance abuse extended over a period of some 13 years with the use of the above referred to drugs over most of that period. It was Dr White’s opinion, that the defendant was likely to re-offend when involved in substance abuse. Apart from making a recommendation that the defendant be referred to the drug and alcohol services council for assessment and the treatment of his substance abuse problems, Dr White expressed no opinion as to the prospects of the defendant successfully addressing these problems.
The defendant’s criminal antecedents extend over many years and include convictions for offences of violence. Of particular significance are offences of assault with intent to rob whilst armed, assault occasioning actual bodily harm and attempted robbery with violence, for which the defendant was sentenced to a term of imprisonment of nine years on 18 June 2001. These were taken into account by the Judge when sentencing:
You have a lengthy criminal history, some of your previous convictions are in relation to offences of dishonesty and offences of violence. Of particular concern are the offences of assault with intention to rob whilst armed, assault occasioning actual bodily harm and attempted robbery with violence, for which you were sentenced on 18 June 2001. You received a significant penalty for those offences. In his sentencing remarks, his Honour Judge Robertson noted that you had shown no remorse and did not accept responsibility for your actions.
The Judge approached the determination of the sentence to be imposed as follows:
But for your plea of guilty I would have sentenced you to imprisonment for three years and six months. After taking your plea into account I reduce that to imprisonment for two years and six months. You have been in custody since 4 November 2008. I reduce the sentence by eight months to reflect the time that you have spent in custody to one year and eight months. That sentence must be cumulative on the unexpired parole of one year, one month and 23 days, which you are required to serve. That makes a total of two years, nine months and 23 days.
In fixing a non-parole period I bear in mind your personal circumstances. It should be clear to you that your poor judgments are linked to substance abuse. You need to address your problems with substance abuse in order to avoid re-offending.
At the time of sentencing, the Director requested the court to consider making a declaration pursuant to section 20B of the Criminal Law (Sentencing) Act that the defendant is a serious repeat offender. The Judge declined to make such a declaration:
The offences before this court are very serious and the community needs to be protected from similar behaviour. However, on this occasion you have accepted responsibility, you have shown genuine contrition and your desire to change your life. I, therefore, decline to make a declaration under s 20B.
The Judge’s decision in this respect was not challenged by the Director.
The Appeal
The court’s powers to interfere with a sentence on the application of the Director are found in section 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). That subsection relevantly provides:
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
…
(iii)… the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law) … on any ground with the permission of the Full Court;
The principles that govern the Director’s applications were summarised by Doyle CJ in Nemer:[5]
The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case"…
…[T]he High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience"…Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
(footnotes omitted – emphasis added)
[5] R v Nemer (2003) 87 SASR 168 at [23]-[24].
In the event of the Director being granted permission to appeal, the powers of this Court on the sentence appeal are set out in section 353(4) of the Criminal Law Consolidation Act:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
It is to be observed that the sentence of the District Court would only be set aside in the circumstance that this Court considers that a different sentence should have been imposed.
As earlier observed, the Director contended that both the head sentence and non-parole period were manifestly inadequate and the Court should interfere to maintain adequate standards of punishment for offences of aggravated robbery and to give effect to general deterrence in the circumstances of offenders such as the defendant.
The Director submitted that several factors provided some explanation for what was said to be the manifestly inadequate sentence. These included the alleged failure of the Judge to have full regard to the victim impact statements and the alleged failure of the Judge to give adequate consideration to the aggravating circumstance that the offending occurred while the defendant was on parole.
It was also pointed out that the Judge made too great a reduction on account of time spent in custody. The Judge made a reduction of 10 months instead of the correct reduction of 8 months.
The Director drew attention to the observations of this Court in Place[6] where Doyle CJ, Prior, Lander and Martin JJ outlined considerations relevant to sentencing for aggravated robbery:[7]
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. In our view, the sentencing judge was doing no more than having regard to the standard of penalty that has been identified by the Court of Criminal Appeal as applicable to the circumstances before him. However, it is clear that his Honour did not apply the standard as if it was a fixed tariff. If he had done so, his starting point would have been 36 years or more. It appears that his Honour used a figure of approximately five years for each of the armed robberies in determining his starting point.
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
…
In these reasons, we have confirmed the general principles that are applicable when sentencing for crimes of armed robbery. We have emphasised the need to consider the individual circumstances of the offence and the offender. No submissions were directed to whether the existing standard should be reviewed. The Director did not seek to revisit the suggestion that was made in Newton that sentences imposed in the District Court in recent years demonstrate that the level of sentences imposed for armed robbery has drifted below the standard to which we have referred. In these circumstances, it is sufficient for us to confirm that the standard remains applicable for the types of offences and offenders which we have, in broad terms, described. We would add only that we disagree with the suggestion in Newton that the circumstances to which the standard of six to eight years is appropriate includes the large-scale well planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out. Generally speaking, however, in our view a well planned and large scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.
(emphasis added)
[6] R v Place (2002) 81 SASR 395.
[7] R v Place (2002) 81 SASR 395 at [100]-[101], [108].
Counsel for the defendant in opposing a grant of permission to appeal acknowledged that the sentence imposed was “extraordinarily merciful”. However it was submitted that it was not a sentence that would shock the public conscience and that notwithstanding the defendant’s antecedents, his personal circumstances provided good reason for the sentence imposed. Heavy reliance was placed on the opinion of Dr White as to the defendant’s mental retardation and what was said to be consequent diminishing of his moral culpability. The Court’s attention was drawn to the genuine contrition and remorse of the defendant, said to be evidenced by his early plea and a letter written by him to the Court. This was said to stand in sharp contrast to his attitude to his earlier offending.
Section 10(1) of the Criminal Law (Sentencing) Act provides that when sentencing, the Court should have regard, inter alia, to the mental condition of the defendant and also to his rehabilitation. The question of the relevance of the low intelligence and diminished responsibility of a defendant has been the subject of considerable judicial observation. Generally, these matters would be regarded as mitigatory. However, the authorities establish that notwithstanding low mentality reducing moral responsibility, the Court retains responsibility to punish the defendant if it is in the interests of the public to do so because of the seriousness of the crime.
In Ryan[8] the High Court addressed mental abnormalities and their effect on moral culpability. When reviewing the authorities, McHugh J observed:[9]
[8] Ryan v R (2001) 206 CLR 267.
[9] Ryan v R (2001) 206 CLR 267 at [40]-[41].
…In Channon v The Queen, Brennan J, then a member of the Federal Court, said:
"An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period."
In Veen v The Queen [No 2], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to re-offend. But the majority noted that, although the condition may be said to diminish his or her "moral culpability for a particular crime", it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case. As Mason CJ, Brennan, Dawson and Toohey JJ said in Veen [No 2]:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence." (Emphasis added.)
For that reason, in Veen [No 2], this Court saw no error in principle when the prisoner was given a life sentence substantially because of the need to protect society from his homicidal impulses.
(footnotes omitted)
The issue of an offender’s mental condition was addressed by the Court in Wiskich.[10] Martin J observed that the mental condition of an offender is always a relevant factor in the sentencing process whether at common law or under statute.[11] However the weight to be given to that mental condition varies according to the circumstances of the offending and the nature and severity of the mental condition.
[10] R v Wiskich (2000) 207 LSJS 431; see also R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ).
[11] R v Wiskich (2000) 207 LSJS 431 at [21] –[22].
The authorities make clear that despite the relevance of the defendant’s mental condition in the sentencing process, other factors are also relevant in the assessment of an appropriate sentence, including the antecedents of the defendant. As Mason CJ and Brennan, Dawson and Toohey JJ said in Veen (No 2).[12]
…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
[12] Veen v R (No 2) (1988) 164 CLR 465 at 477-478.
In the present proceeding, the defendant’s repeated offending raises the question of ongoing danger to society. The defendant’s failure to respond to punishment and his ongoing acts of violence underscore the importance of protecting the community. The defendant was well aware of what he was doing and that his conduct was unlawful. He was aware that in so acting, he was in breach of parole in respect of similar offending. His motive was to obtain money to support his substance abuse. Given his long-term history of substance abuse and criminal conduct, his prospects of rehabilitation should be considered as problematic. As Dr White has pointed out, if the defendant continues with substance abuse, he is likely to offend again. In the circumstances of the present case, the need for personal deterrence is heightened as a consequence.
Given the defendant’s antecedents, the conduct the subject of the present offending, and his long-term substance abuse, there is a need to impose a sentence of imprisonment that has particular regard to the protection of the public. The sentence imposed in the District Court was in the circumstances so low as to shock the public conscience. The sentence imposed was manifestly inadequate. The circumstances are such that it is appropriate for this Court to grant permission to appeal, allow the appeal, set aside the sentence imposed and to re-sentence the defendant.
This is an appropriate case in which to consider the defendant’s offending as forming a course of conduct and to assess the overall criminal culpability of the defendant with respect to that conduct. As earlier observed, the offending all occurred within the space of an hour. It is appropriate to impose the one sentence with respect to all the offending.
The Court, when utilising section 18A of the Sentencing Act,[13] has considerable flexibility in the way that the one sentence is to be arrived at. This flexibility of approach was addressed by this Court in Symonds,[14] where Doyle CJ observed:
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed…
Subsequent authorities of this Court have endorsed and applied the above observations.[15]
[13] R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24.
[14] R v Symonds [1999] SASC 217 at [21]-[22].
[15] R v Jason (2002) 36 MVR 474; R v Elliot (2001) 121 A Crim R 254; R v Liddy (No 2) (2002) 84 SASR 231 at 241-243; R v P (2003) 87 SASR 287 at [62]-[70]; R v Gibbs (2004) 89 SASR 30 at [2]-[3]; R v RB (2005) 91 SASR 200 at [17].
In Nylander,[16] Bleby J, with whom Prior and Sulan JJ agreed, having referred to the above observations in Symonds, commented: [17]
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[16] R v Nylander (2003) 228 LSJS 24.
[17] R v Nylander (2003) 228 LSJS 24 at [81]-[85].
I consider that the range in which to fix the head sentence in respect of all the defendant’s offending is seven to ten years. Having regard to all of the circumstances referred to above, to the observations of this Court in Place, Symonds and Nylander and to the fact that as this is an appeal by the Director and involves an element of double jeopardy, I would start with the notional one sentence of seven years’ imprisonment. In arriving at this notional sentence, I have had regard to the fact that the three offences were part of one ongoing course of conduct and all undertaken within an hour. The second and third counts were committed in effect on the same occasion.
A reduction to this notional sentence should be made of a period of two years on account of the defendant’s pleas of guilty and contrition and remorse. This is the same proportionate reduction as made by the sentencing Judge. A further reduction of eight months should be made on account of time spent in custody with respect to the subject offences prior to the date on which the defendant was sentenced in the District Court.
This results in a head sentence of four years and four months. This sentence is cumulative upon the balance, as at 3 November 2008, of the sentence of imprisonment in respect of which the defendant was on parole, namely a period of one year, one month and 23 days. By reason of section 75 of the Correctional Services Act 1982 (SA) the defendant commenced serving that unexpired balance on the day that he was sentenced in the District Court, namely 3 July 2009.The Court is required to fix a non-parole period with respect to the total period of imprisonment to be served, of five years, five months and 23 days. In the circumstances, in my view it is appropriate to fix a non-parole period of four years. The total period of imprisonment of five years, five months and 23 days commenced on 3 July 2009.
Conclusion
I would grant permission to appeal, allow the appeal and set aside the sentence imposed in the District Court. I would re-sentence the defendant to a term of imprisonment of four years and four months. I would order that the sentence commence on the expiry of the balance of the sentence of imprisonment in respect to which the defendant was on parole, namely a period of one year, one month and 23 days. I would fix a non-parole period of four years with respect to the total period of imprisonment. The defendant is to be taken to have commenced serving the total period of imprisonment of five years, five months and 23 days on 3 July 2009.
ANDERSON J. I agree that the applicant should be granted permission to appeal. I would allow the appeal and set aside the sentence imposed in the District Court. I agree with Gray J that the defendant should be sentenced to a term of imprisonment of 4 years and 4 months. I agree with the non-parole period of 4 years and I agree with the other orders proposed by His Honour.
I agree generally with the reasons of Gray J.
WHITE J: I agree with the orders proposed by Gray J and I agree generally with his reasons.
I add these further comments.
The Judge’s sentencing decision appears to have been very much influenced by a letter written by the respondent himself and addressed to the Judge. The letter was provided to the Judge in the course of the sentencing submissions. In addition to containing expressions of remorse and contrition, the letter revealed that the respondent had some insights into the factors contributing to his own conduct, and indicated a determination by him to improve his life. The Judge accepted the sincerity of the respondent in writing the letter. It was not suggested that it was inappropriate for him to have done so. The contents of the letter, and the Judge’s acceptance of its sincerity, appear to explain the merciful approach to sentence adopted by the Judge.
However, as the reasons of Gray J indicate, the respondent’s criminal history was poor. He was to be sentenced for not just one offence, but three. The commission of those offences was aggravated by the fact that he was on parole at the time. It is true that the manner of the commission of the offences was somewhat unsophisticated, but the crudeness with which they were committed may well have added to the trauma experienced by the victims.
It is common for employees in service stations to work alone at night. They are particularly vulnerable to this kind of offending. Further, the service and convenience to the public provided by service stations at night is available only at the cost of additional security. Those costs are borne by the wider community. The vulnerability of those who work in service stations, and the desirability of the public having continued access to the convenience which service stations provide, indicate the importance of both personal and general deterrence in cases of the present kind.
These matters indicate that, despite the sincerity of the sentiments expressed in the respondent’s letter, the Judge’s sentence was unduly lenient.
The selection of an appropriate starting point for a s18A sentence in this case is not easy. On the one hand, the decision of the Court in R v Place[18] indicates that sentences for armed robbery in circumstances of the present kind should be in the order of imprisonment for six to eight years. The respondent is to be sentenced for three offences and not just one. Both his criminal history and the aggravating feature that the three offences were committed while he was on parole suggest, by themselves, that little lenience can be extended to him. On the other hand, the Court should, in my opinion, attach some weight to the fact that the sentencing Judge accepted the sincerity of the respondent’s contrition, his expressions of insight, and his determination to improve himself. If s 18A of the Criminal Law (Sentencing) Act 1988 was not being invoked and instead a single sentence for each offence was imposed, it is likely that the Court would order a substantial degree of concurrency. In addition, the consideration of avoiding double jeopardy when allowing a Crown appeal suggests that in resentencing, this Court should impose a sentence at the lower end of the appropriate range.
[18] [2002] SASC 101; (2002) 81 SASR 395.
Accordingly, I agree that a starting point of seven years is appropriate. As I indicated at the outset of these reasons, I agree with the orders proposed by Gray J.
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