R v Jackson - [2014] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JACKSON
[2014] SASCFC 118
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
30 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
The appellant pleaded guilty to the offence aggravated robbery and was sentenced to a period of four years and six months, with a non-parole period of two years and six months. The appellant appeals against this sentence on the ground that it is manifestly excessive.
Held by Kourakis CJ (Kelly and Blue JJ agreeing) allowing the appeal:
The sentence is manifestly excessive as it fails to sufficiently differentiate between offences of the kind considered in R v Place and offences of the kind where an offender intends a surreptitious theft (Kourakis CJ at [16]). The sentence is also severe having regard to the appellant’s youth, personal circumstances and short periods of detention and imprisonment previously served (Kourakis CJ at [16]).
A head sentence of three years and two months with a non-parole period of one year and 11 months is imposed (Kourakis CJ at [16]).
Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Law (Sentencing) Act 1988 (SA) s 10B, referred to.
R v Place (2002) 81 SASR 395, distinguished.
R v Wilson; R v Eleche [2014] SASCFC 73, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive"

R v JACKSON
[2014] SASCFC 118
Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ

KOURAKIS CJ: This is a sentence appeal. On 16 January 2014 the appellant, John William Jackson, pleaded guilty in the Magistrates Court to one count of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) committed on 15 October 2013. He was committed for sentence to the District Court.
The sentencing Judge would have imposed a head sentence of six years imprisonment but for the appellant’s plea of guilty on account of which the Judge reduced that nominal sentence by 25 percent. The Judge imposed a head sentence of four years and six months imprisonment with a non-parole period of two years and six months, backdated to commence on 15 October 2013 when the appellant was taken into custody. The appellant appeals against the sentence on the ground that it is manifestly excessive. I would allow the appeal. My reasons follow.
The offence
The offence was committed at about 9.15pm on 15 October 2013 at the BWS store in Exeter. On that day the appellant had been drinking and taking the drug ice. When he entered the store, the appellant was approached by a store attendant, who recognised him as having previously stolen alcohol from the premises, and asked to leave on account. The appellant attempted to punch the attendant but instead took him by the collar and threw him aside. The appellant then grabbed two bottles of Jim Beam and motioned as if to throw them at the other attendant. The appellant subsequently left with four bottles of Jim Beam.
Personal circumstances
The appellant is 23 years of age and of Aboriginal descent. From an early age he has experienced alcohol abuse and seen violence; his parents were heavy drinkers and his father was violent to his mother. His parents separated when he was eight years of age and at that time the appellant went to live with his mother in Western Australia. Unfortunately, his mother’s new partner was also abusive.
The appellant completed only primary school and has never held employment. He began using marijuana at age 12 and alcohol at the age of 13. The appellant had a relationship with a young woman when he was about 15 and has three daughters aged four, six and seven. When that relationship ended in 2012, the appellant fell into a heavy pattern of alcohol abuse.
The appellant has an extensive list of previous convictions starting at the early age of 12. He has numerous offences for dishonesty, damaging property, motor vehicle offences, also for breaching bonds, bail agreements and community service orders. He has appearances in the Youth Court in 2006 for carrying an offensive weapon and in 2007 for an aggravated assault. On 7 December 2007 the appellant was sentenced in the Children’s Court to eight months detention for aggravated serious criminal trespass and other offences. The appellant received a suspended sentence and entered into a two year bond to be of good behaviour on a conviction for aggravated assault causing harm in March 2011.
On 13 August 2013 he breached that bond but no penalty was imposed. On the same day the appellant was imprisoned for two months and 10 days for a variety of offences. That is the longest period of imprisonment the appellant has served.
The appellant expressed a high level of contrition writing a letter to the sentencing Judge and a letter of apology to the victim. The pre-sentence report, dated 22 May 2014, which was before the sentencing Judge opined that “clearly the use of alcohol and violence is a learned behaviour as a result of childhood influences.” The appellant continues to be plagued by the consequences of the deprived social circumstances of his childhood.
The appeal
The appellant contends that the sentence imposed was manifestly excessive. During the course of the hearing, the appellant sought permission to appeal against conviction on the ground that the information misdescribed the particulars of the circumstance of aggravation. Permission was refused by this Court.[1]
[1] The information particularised the circumstances of aggravation to be that the appellant used, or threatened to use, an offensive weapon to commit, or when committing, the offence and that the offence was committed in company with one or more other persons. The defect is technical and does not affect the validity or appropriateness of the conviction. The appellant can seek an amendment of the Information in the District Court.
The appellant contends that the sentencing Judge misapplied the decision of this Court in R v Place[2] which establishes a range for certain kinds of aggravated robbery of six to eight years. The appellant submits that the standard fixed in Place is not applicable to his offence because his offending was objectively less serious and because his personal circumstances called for greater leniency.
[2] (2002) 81 SASR 395 at [99] – [108].
The circumstances of the offences before the Court in Place are set out in the following paragraphs:[3]
The offences all occurred over a period of less than three weeks in July 2000. The sentencing judge summarised the course of the appellant's criminal conduct in the following terms:
In the period before July 2000 you were alone and not working. You used all of your money to purchase amphetamines and then turned to robbery. It is not necessary that I descend into detail about the offences. The modus operandi was almost the same. You obtained an imitation firearm, and then, on two separate occasions, used it to threaten vehicle owners and then steal their motor vehicle. On one occasion you did this having been picked up as a hitchhiker.
For each robbery you used the gun, and your victims were aware that you were armed. From all six robberies you obtained a little under $5,000. It was all spent on drugs.
[3] R v Place (2002) 81 SASR 395 at [94].
In the context of those factual circumstances the Court established the following standard:[4]
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.
[4] R v Place (2002) 81 SASR 395 at [100]-[101].
I recently considered the application of that standard in R v Wilson; R v Eleche:[5]
The Court of Criminal Appeal in R v Place established a sentencing standard for offences of armed robbery. In the ordinary course a sentence of six to eight years imprisonment will be imposed for robberies of premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects which appear to be weapons are used to threaten victims. Plainly enough the balance of aggravating or mitigating circumstances struck by a judge in a particular case, will determine where, within the range so set, the sentence will fall. On occasion the individual circumstances of the offence or the offender may bring the case out of the generality of cases to which the standard applies and a higher or lower sentence may properly be imposed.
[5] [2014] SASCFC 73 at [35].
This is one of the cases to which I adverted that falls outside of the generality of cases to which this Court’s remarks in Place were addressed. In this case, the appellant entered the store unarmed and intending to surreptitiously commit a simple theft of alcohol. His subjective culpability is significantly less than the culpability of offenders who secure weapons, disguises and getaway vehicles and plan an attack designed to intimidate workers to handover cash or other valuables. Nor are the objective risks of harm as high in offending of the kind committed by the appellant as those contemplated by the Court in Place. The offence was not typical of its kind.
Counsel for the Director of Public Prosecutions argued that the offence fell literally within the description in [101] of the judgment in Place. I do not accept that submission because it ignores the common law judicial method. The reasons for judgment of a court must always be considered in the context of the facts of the case they decide. The Director also contended that there was no error in the approach of the sentencing Judge and that general deterrence and protection of the community remained very important considerations. I deal with that submission below in considering the appellant’s contention that the sentence was manifestly excessive.
Conclusion
The sentence is manifestly excessive for two reasons. First it does not sufficiently differentiate between offences of the kind under consideration in Place and offences such as this in which the offender intends a surreptitious theft. The aggravating circumstances of the appellant’s offending were resorted to after his detection and are relatively less frightening and dangerous than the circumstances of the kind of offence considered by the Court in Place. Secondly it is a severe sentence having regard to the appellant’s youth, his deprived upbringing and the relatively short periods of detention and imprisonment he has previously served. True it is that the appellant’s history of prior offending is very bad but it does not preclude all hope for rehabilitation should a more incremental approach be taken to the length of the term of imprisonment he must serve. I would have imposed a sentence of four years six months but for the appellant’s plea of guilty. The appellant pleaded guilty more than four weeks after his first appearance in the Magistrates Court but before the matter was set for trial. Accordingly, the appellant’s sentence may be reduced by up to 30 per cent by reason of his guilty plea.[6] I would reduce his sentence, close to the maximum percentage, by 16 months. I would impose a head sentence of three years and two months and fix a non-parole period of one year and 11 months.
[6] Criminal Law (Sentencing) Act 1988 (SA), s 10B(2)(b).
KELLY J: I agree with the orders proposed by the Chief Justice for the reasons which he has given.
BLUE J: I agree.