R v IRVINE - [2005] SASC 492

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IRVINE
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant convicted of offence of aggravated robbery and offence of assaulting police officer – pleaded guilty to offence of assaulting police officer at reasonably early stage – pleaded guilty to offence of aggravated robbery about two weeks before date fixed for trial – sentenced to imprisonment for 4 years and 1 month and non-parole period of 2 years and 1 month – appealed on basis that judge erred in three respects – first, in giving appellant no credit for pleas of guilty – secondly, in giving insufficient weight to appellant’s youth and level of mental functioning – thirdly, in declining to suspend sentence.
Held, allowing appeal – as to first ground, judge erred in giving appellant no credit for pleas of guilty – appellant entitled to small allowance – as to second ground, judge gave sufficient weight to appellant’s youth and level of mental functioning – as to third ground, judge did not err in declining to suspend sentence – sentence passed by judge set aside – appellant sentenced to imprisonment for 3 years and 10 months and non-parole period of 2 years – sentence not suspended.
Criminal Law Consolidation Act 1935 ss 137(2), 353(4); Summary Offences Act 1953 s 6(1); Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Drumgoon (unreported, 13 December 1995, judgment no S5382); R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431; R v Gommers [2005] SASC 493; R v Place (2002) 81 SASR 395; R v Harris, R v Simmonds (1992) 59 SASR 300, considered.

R v IRVINE
[2005] SASC 492
Court of Criminal Appeal: Besanko, Anderson and Layton JJ

BESANKO J: This is an appeal by leave against a sentence imposed by a judge of the District Court. The appellant pleaded guilty to the offence of aggravated robbery and the offence of assaulting a police officer.
The offence of aggravated robbery carries a maximum penalty of imprisonment for life under s 137(2) of the Criminal Law Consolidation Act 1935 (“CLCA”), and the offence of assaulting a police officer carries a maximum penalty of a fine of $10,000 or imprisonment for two years under s 6(1) of the Summary Offences Act 1953.
The judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for 4 years and 1 month. He fixed a non-parole period of 2 years and 1 month. The judge declined to make any allowance for the appellant’s pleas of guilty. He declined to suspend the term of imprisonment.
The appellant had been in custody since 19 December 1994 and she was sentenced on 18 October 2005. The judge ordered that the sentence and non-parole period commence from the day upon which the appellant was taken into custody.
The circumstances of the offences
The offence of aggravated robbery was committed at around 9.40 am on 19 December 2004 at a Mobil service station at Naracoorte. The appellant and her male accomplice entered the service station wearing stockings and carrying a machete and an iron bar. They approached the console operator and demanded money and cigarettes. The male was holding the machete, which he was waving around, and the judge found that the appellant was holding the iron bar.
The judge found, and it is not disputed, that the robbery had been carefully planned, as evidenced by the use of the machete, iron bar and stockings, and the fact that the number plates on the “getaway” vehicle had been changed. There was a third offender who was the driver of the “getaway” vehicle.
The appellant and her accomplice escaped with a quantity of cigarettes and the sum of $774 in cash.
The appellant was apprehended by police officers on the day of the robbery. In the video interview room at the police station, she kicked one of the police officers on his right leg just below the knee and that conduct constituted the offence of assaulting a police officer.
The judge referred to the offence of aggravated robbery as a “very, very serious offence”. The aggravated robbery was a terrifying ordeal for the console operator and her victim impact statements make it plain that the incident has had major adverse effects on her life.
The personal circumstances of the appellant
The appellant was born on 26 February 1986 and was 18 years of age at the time that she committed the offences. She had a criminal record at that time and the judge said that since 2003 the appellant had had six court appearances for offences including assaulting police, larceny, theft and common assault. She had been given two good behaviour bonds, one for a period of six months, and the other for a period of 12 months. She had not previously been given a custodial sentence.
The appellant has a child who is in the foster care of the appellant’s mother. The judge said that he accepted that the appellant has had a difficult background and that she had been raped on two occasions.
The judge had before him a report of Mr A Fugler, a clinical forensic psychologist, dated 11 October 2005, and a psychological assessment carried out in July 2002 by Ms G Salamone-Violi, a senior clinical psychologist at the Women’s and Children’s Hospital. Mr Fugler refers to the appellant’s unfortunate childhood and her anger at the sexual offences committed against her. He considered that there is sufficient evidence to indicate that she had what he described as “a number of areas of significant psychological dysfunction”. She displays sufficient diagnostic signs to suggest the existence of a borderline personality disorder, although, without a more detailed assessment, Mr Fugler was reluctant to express a definite opinion in that regard. At the time of the psychological assessment by Ms Salamone-Violi, the appellant was 16 years and 5 months of age. Ms Salamone-Violi carried out a number of tests, including performance tests of both a non-verbal and verbal kind. The appellant’s behaviour during the testing was immature and she performed well below children of a similar age in a number of areas. Ms Salamone-Violi concluded that although the appellant’s “full scale IQ” is marginally outside the limit for suitability to receive services from the Intellectual Disabled Council, her “verbal IQ” alone clearly indicates disability, and referral should be considered.
Issues on appeal
There are three issues on the appeal. First, the appellant submits that the judge erred in giving her no credit for her pleas of guilty. Secondly, the appellant submits that the judge erred in failing to place sufficient weight on her youth and what I will call her reduced level of mental functioning. Thirdly, the appellant submits that the judge erred in declining to suspend the sentence of imprisonment.
The appellant pleaded guilty to the offence of assaulting a police officer at a fairly early stage, but did not plead guilty to the offence of aggravated robbery until about two weeks before the date fixed for the trial. The judge noted that the plea of guilty to the offence of aggravated robbery came “late in the piece” and said that the appellant was not entitled to credit for that plea. The appellant submits that this was an error, and the Director of Public Prosecutions concedes that the judge erred in this respect. However, the Director submits that, even though the judge erred in declining to make an allowance for the pleas of guilty, the sentence imposed should not be altered because the judge had erred in favour of the appellant in that the sentence he imposed was too low. The Director submits that, having regard to the seriousness of the offence of aggravated robbery, the judge had given too much weight to the appellant’s youth, immaturity and diminished level of functioning. The Director submits that the appeal should be dismissed because, even accepting the error, the Court could not be satisfied that a different sentence should have been passed (s 353(4) CLCA).
It is convenient to consider the other issues on the appeal before expressing my conclusions on the effect of the judge’s error in making no allowance for the pleas of guilty.
The offence of aggravated robbery is a very serious one, as evidenced by the maximum penalty of life imprisonment. In this case, both of the elements of aggravation referred to in s 137(2) of the CLCA were present, in that the robbery was in company, and the appellant and her accomplice both had an offensive weapon when committing the robbery. The robbery was a brazen one, committed as it was at about 9.40 am, and the target, a service station with a console operator, was a vulnerable one. Robberies such as this are a terrifying experience for the victims and often (as in this case) have long-lasting effects. In this case, considerations of personal and general deterrence and the protection of the community were to be accorded substantial weight.
The judge did take into account the appellant’s youth and reduced level of mental functioning. In the course of his sentencing remarks, he said:
The prosecution has referred me to the case of the R v Drumgoon where the Court of Criminal Appeal said that the tariff in the cases of armed robbery should be of the order of six to eight years’ imprisonment. In that case, the court imposed a penalty of five years.
I take into account your youth and immaturity and your diminished level of functioning. I propose one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act. You will be sentenced to imprisonment for 4 years and 1 month. You are not entitled to a credit for a plea of guilty. In the hope that your counsel is correct, when he suggested that you would benefit from a period of supervision, I fix a relatively low nonparole period of 25 months. The sentence and nonparole period will commence from the day on which you were taken into custody.
The tariff suggested in R v Drumgoon (unreported, 13 December 1995, judgment no. S5382) is not an inflexible one and the judge was correct to take into account the appellant’s age and reduced level of mental functioning. The judge said that he took into account the appellant’s age and there is no reason to think that he placed insufficient weight on that factor, particularly in light of her history of offending. At the same time, there is no reason to think that the judge placed insufficient weight on the appellant’s reduced level of mental functioning. There is no automatic deduction to be made on that account and the importance and weight to be given to the factor is to be assessed having regard to all the circumstances of the case: R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431; R v Gommers [2005] SASC 493. On the material before the judge, it cannot be said that the appellant’s reduced level of mental functioning prevented her from appreciating the nature and seriousness of her conduct in connection with the offence of aggravated robbery.
I assume the judge concluded that a period in the order of four years was appropriate for the offence of aggravated robbery and a period in the order of one month for the offence of assaulting a police officer. In weighing the relevant considerations, the judge did not err in imposing too high a sentence, as the appellant contended, or too low a sentence, as the Director contended.
As to the third issue on the appeal, the judge did not err in declining to suspend the sentence. He was aware of the appellant’s age, her history of offending, her reduced level of mental functioning and the seriousness of the offence of aggravated robbery and it was open to him to conclude that good reason to suspend the sentence did not exist.
I return to the first issue on the appeal. The practice of allowing a discount for a plea of guilty and the reasons for the allowance have been discussed in a number of cases. It is sufficient for present purposes to refer to R v Place (2002) 81 SASR 395 per Doyle CJ, Prior, Lander and Martin JJ at 411-413 [40]-[46]. In this case, the judge erred because he took the view that the appellant was not entitled to a credit for the plea of guilty to the offence of aggravated robbery because the plea was made “late in the piece”. The plea avoided the cost and inconvenience of a trial and there are no other factors to suggest that the appellant was not entitled to a small allowance for the plea. It is important that offenders be aware that, all other things being equal, they will be given a discount for a plea of guilty: R v Harris; R v Simmonds (1992) 59 SASR 300 per King CJ (with whom Olsson and Mullighan JJ agreed) at 302. I think that this principle would be undermined if this Court was too ready to conclude that the fact that no allowance was made for a plea of guilty made no difference to the sentence passed. That is not to say that this Court could not do that in an appropriate case, but I am not satisfied that this is such a case. In view of the timing of the plea to the offence of aggravated robbery, only a small allowance should be made in this case. I would reduce the sentence passed from 4 years, 1 month to 3 years, 10 months. I have given more anxious consideration to the question whether the non-parole period fixed by the judge should be reduced because, having regard to the relevant factors in this case, there is force in the contention that the non-parole period was a moderate one. The judge himself described the non-parole period as “relatively low”. However, I would make a small allowance of one month for the appellant’s pleas of guilty and reduce the non-parole period from 2 years, 1 month to 2 years.
Conclusions
The appeal should be allowed and the sentence passed by the judge set aside. I would impose one penalty for the two offences of 3 years and 10 months and fix a non-parole period of 2 years. The sentence and non-parole period are to commence from the day the appellant was taken into custody. The sentence should not be suspended.
ANDERSON J I agree that the appeal should be allowed for the reasons given by Besanko J. I agree also with the penalty he proposes and with the non-parole period he fixes. I agree also that the sentence should not be suspended.
LAYTON J: Having had the opportunity of reading the reasons for decision of Besanko J, I agree with his reasons and with the orders which he proposes.