R v Jewell - [2006] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v JEWELL
[2006] SASC 128
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
9 May 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Appeal against sentence - appellant convicted in the District Court of aggravated robbery - whether the trial Judge erred in failing to suspend a sentence for robbery having regard to the personal circumstances of the appellant - no error of law made out - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.

R v JEWELL
[2006] SASC 128
Court of Criminal Appeal: Doyle CJ, Bleby and White JJ

DOYLE CJ: Mr Jewell appeals against a sentence imposed by the District Court. The issue raised by the appeal is whether the Judge erred in not suspending the sentence that he imposed. No criticism was made of the head sentence or of the non-parole period.
Mr Jewell pleaded guilty to a charge of aggravated robbery, being robbery in the company of another and armed with an offensive weapon. That offence attracts a maximum penalty of life imprisonment. He pleaded guilty to a charge of theft. The theft involved the taking of number plates from a motor car, the purpose being to use them on the motor car used in connection with the robbery. This offence attracts a maximum punishment of imprisonment for ten years.
The Judge imposed an unusually low sentence of imprisonment for 2 years 11 months, with a non-parole period of 17 months.
In company with Ms Irvine, Mr Jewell carried out a robbery at a service station in Naracoorte. Mr Jewell threatened the attendant with a machete. Ms Irvine had an iron bar. They were assisted by Mr McLister, who drove them to the service station and subsequently from the scene.
The details of the offending conduct are not important for present purposes. But it is relevant to note that this was not a spur of the moment offence. It was planned over the course of about 24 hours. The preparations involved obtaining the weapons that were used, buying stockings to use as a disguise, and stealing the number plates for use on the getaway car.
The robbery must have been a very frightening experience for the unfortunate service station attendant. Her victim impact statement indicates that the experience has had a devastating effect on her. She has suffered grievously. Her life, and that of her husband and family, has been turned upside down by the experience.
Mr Jewell was sentenced on the basis that at the time of the offences he was on a “drug binge”, and had been for several months. He was smoking marijuana, drinking alcohol and using amphetamines. The robbery was committed to get money to buy more drugs. My impression is that each of the three offenders played an equal part in the offences.
The sentence of the Judge imposed is unusually low for such a serious offence. The reason for the sentence, and the basis of the appeal, are to be found in Mr Jewell’s personal circumstances.
There is nothing by way of mitigation in the circumstances of the offence itself. It is a serious offence. It is quite prevalent. It is an offence that calls normally for heavy punishment, with an emphasis on personal and general deterrence.
But Mr Jewell’s personal circumstances warranted the lenient course that the Judge took.
As I have already mentioned, the robbery was committed while Mr Jewell’s judgment was affected by drugs. He pleaded guilty at an early stage. He had turned 18 only two months before these offences. He was not someone who had embarked on a life of crime. His only prior offence was a relatively minor one committed about two months before the offences in question. The Judge accepted that he was genuinely contrite. He had grappled with his drug taking. He had sought treatment from the Drug Counselling Service. A report from that Service indicated that he had kept off drugs for about two years. Bearing in mind that his serious abuse of drugs began only a few months before the offences, there is a good prospect that he will not relapse into drug abuse.
His prospects of rehabilitation are very good. It is unlikely that he will offend again. He has supportive parents, with whom he had been living. Work is available for him on the family farm.
A psychiatric report prepared by Dr Raeside was tendered before the Judge. Dr Raeside says that Mr Jewell is probably mildly intellectually retarded, but no formal tests have been carried out. Dr Raeside said:
… I think that he would be vulnerable to undue influence by more experienced “criminals” and may find himself the victim of unwarranted attention in a larger prison environment.
There is a risk, but it cannot be put any higher than that, that imprisonment could jeopardise his prospects of rehabilitation.
Mr Jewell has never been in prison before. He has not had the benefit of a suspended sentence.
Ms Chapman for Mr Jewell submits that the Judge made two errors. The Judge said that the three offenders had “spent some days” planning the offence. That is not correct. The robbery was planned over about 24 hours. But that slip is of no significance. The Judge referred to Dr Raeside’s comment that I set out above, but it did not refer to the possible intellectual retardation. There is no reason at all to think the Judge overlooked this.
That being so, the outcome of the appeal depends, as Ms Chapman more or less acknowledged, on whether the Judge erred in failing to find that there were proper grounds to suspend the sentence, and in failing to do so: see s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
In considering whether there was good reason to suspend the sentence, the Judge had to balance a number of interests. He had to consider the community interest in personal and general deterrence. He had to consider the seriousness of the offence. And then he had to consider the impact of the persuasive mitigating circumstances that I have identified. These had to be taken in combination, but Mr Jewell’s youth and good prospects of rehabilitation were particularly significant.
There is no indication that the Judge erred in his approach as a matter of law. He was clearly aware of the relevant factors. His reasons indicate that his decision not to suspend the sentence was significantly influenced by the seriousness of the offence, and by the need to impose a deterrent offence.
This is a difficult case. I cannot say that it would have been wrong to suspend the sentence. But, on the other hand, nor can I say that the mitigating circumstances are such that it was an error on the part of the Judge not to suspend the sentence. It is a borderline case, and it was open to the Judge to reach the conclusion that he did. Accordingly, the appeal must be dismissed.
I feel considerable sympathy for Mr Jewell and for his mother and father. This case, and its consequences for the three offenders, the unfortunate service station attendant and Mr Jewell’s parents, is yet another illustration of the tragic consequences of the abuse of drugs. Drug abuse is a complex social problem, but the Courts must remain mindful of the need to deter drug users from offending of the kind in question.
BLEBY J: I join in the Chief Justice’s sympathy for the appellant and his parents. I share his concern for the victim and her family. This is a tragic case for all concerned. But in the end, for the reasons given by the Chief Justice, the appeal must be dismissed.
WHITE J: I agree generally with the reasons of the Chief Justice.
In the particular circumstances of this case, and despite the seriousness of the offence of aggravated robbery, and despite the seriousness of the consequences of that offence for its victim, I do not consider that it would have been inappropriate for the sentencing judge to have suspended the sentence of imprisonment. Those circumstances are set out in the judgment of the Chief Justice. I would add to those circumstances the evidence of the appellant’s previous good character provided by a number of persons from his local area who had known him during his youth. Some of those persons also provided insights into the appellant’s upbringing. Those items of evidence indicate that the appellant’s prospects of rehabilitation are good.
A decision to suspend or not suspend a sentence involves an exercise of a discretion. It is in the nature of the exercise of such a discretion that different sentencing courts may reasonably come to differing views. The circumstances in which an appellate court interferes with the exercise of discretion by a sentencing judge are limited. Interference is warranted where a sentencing judge acts on some wrong principle, or on some wrong or incomplete view of the relevant facts, or takes into account an irrelevant consideration, or fails to have regard to a relevant consideration. Interference is also warranted even where no error can be identified if the exercise of the discretion is plainly unreasonable.
For the reasons given by the Chief Justice, I do not consider that any of those grounds for interference exist in the present case. As the Chief Justice has said, this was a borderline case and it was open to the judge reasonably to reach the conclusion which he did.
Accordingly, in my opinion the appeal should be dismissed.