R v Hutchins

Case [2009] SASC 275

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 275

Court of Criminal Appeal:       Gray, Anderson and White JJ

GRAY J:

  1. 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).

  2. 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…

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Details
AGLC
R v Hutchins [2009] SASC 275
Case
[2009] SASC 275
Decision Date

CaseChat Overview and Summary

The case of R v Hutchins involved the defendant, who had pleaded guilty to three counts of aggravated robbery, appealing against the sentence imposed by the District Court. The Director of Public Prosecutions sought permission to appeal against the sentence, arguing that it was manifestly inadequate, failed to reflect the need for general and personal deterrence, and did not adequately consider the defendant's mental condition. The defendant was sentenced to a term of imprisonment of one year and eight months, to be cumulative on a period of unexpired parole, with a non-parole period of one year and 11 months.

The primary legal issues before the court were whether the sentence imposed was manifestly inadequate and whether it failed to reflect the need for general and personal deterrence. The court also needed to consider the relevance of the defendant's mental condition in determining the appropriate sentence. The court found that the sentence was so low as to shock the public conscience and did not adequately address the need for general and personal deterrence, especially considering the defendant's criminal history and the fact that the offences were committed while he was on parole. The court also considered the defendant's mental condition and the mitigating factors presented, but ultimately found that these did not justify the low sentence imposed.

The court granted permission to appeal and allowed the appeal, setting aside the sentence imposed by the District Court. The defendant was re-sentenced to a term of imprisonment of four years and four months, with a non-parole period of four years. The court emphasised the need for an adequate sentence to maintain standards of punishment for the offence of aggravated robbery and to reflect the need for general and personal deterrence. The court acknowledged the defendant's background and mental condition but found that these factors did not justify a sentence as low as the one initially imposed. The final orders included the re-sentencing of the defendant to the specified term of imprisonment and non-parole period.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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