R v Kelly

[2000] SASC 293

R v KELLY
[2000] SASC

Court of Criminal Appeal:  Prior, Nyland and Bleby JJ

1................ PRIOR J:....................... This is an appeal against a sentence of 30 years imprisonment with a non-parole period of 18 years imposed in the District Court with respect to five admitted charges of armed robbery, committed in October, November and December 1999 and three other offences of resisting a police officer, attempting to escape from lawful custody and assaulting a police officer.  The resist arrest offence occurred when the appellant was initially arrested in a shop at Glenelg on 10 December 1999.  The escape from custody and assault offences occurred when the appellant attempted to escape from the Port Adelaide Police Station after being interviewed in relation to robbery offences.  The appellant asked the sentencing judge to take into account 10 other robbery offences.  Four of these were also armed robbery, three were robbery with violence and three robbery alone. All 18 offences were committed during a period of about six weeks. 

1. The robberies were within the suburbs and environs of Adelaide.  All of the robberies involved so-called “soft targets” - four delicatessens, four video stores, three supermarkets, three service stations and a pharmacy, in which trading was quiet, only one person was in attendance at the time.  All but one of the 15 robberies were committed against female attendants, standing at cash registers.  In most cases only one person was in attendance at the time of the robbery.

2. As for the armed robberies, a knife was used to threaten the victims in five of the cases, a syringe on the other four occasions.  The appellant said he had no desire to hurt, harm or injure the persons put in fear by his actions.  Rather he was intent on obtaining money to buy heroin, more for his girlfriend than for himself.  She was a heroin addict whom the appellant was keen to impress.  The appellant said that he was also wanting to use some of the proceeds for his own drug needs and to put towards the purchase of a motor car. 

3. The total amount of money obtained from the 15 robberies was a little over $6000.  A matter of aggravation, of course, was that this offending occurred whilst the appellant was on parole.  He had no previous history of violent offending.  He had been imprisoned in the past mostly for illegal use of motor cars and larceny.  At the time of sentencing, the appellant was 24 years of age, of low/average intelligence.  He readily accepted responsibility for his offending.  He was seen as genuinely remorseful, naïve, vulnerable and not well-equipped to face the difficulties of his own poly-substance abuse or personal relationships.

4. In his sentencing remarks, the District Court judge accepted that the 15 offences were all “clearly connected” to the appellant’s chaotic life-style and explicable by his having naively focussed on a desire to form a relationship with a woman also dependent upon drugs.  His Honour said that the appellant was, in a sense, vulnerable and not well-equipped to face the difficulties with which he was presented.

5. His Honour then said, with respect to the appellant’s pleas of guilty, avoiding the need for long, expensive and traumatic trial for many, that without the appellant’s cooperation with the police,

   “their task would have been much more difficult and it could be that some of these offences could not have been proved against you.  You are to be credited for that assistance by the allowance of a significant discount in sentencing you.  That discount I allow at about 30 per cent.  I am mindful that you will most likely be serving your sentence in protective custody.”

His Honour then referred to aggravating features of the offences.  The appellant was on parole at the time, the offences were committed against soft targets and, on nine occasions, the appellant was armed with a knife or syringe.  His Honour then referred to observations recently made in this Court in R v Lumsden[1], when the Court emphasised that general deterrence and the maintenance of appropriate sentencing standards are of particular importance when imposing sentences for crimes of armed robbery.  Reference was also made to an observation made by the Chief Justice in R v Nemere[2].  In that case, the Chief Justice said that the courts cannot accept addiction as a basis for imposing a lenient punishment for such serious offences as armed robbery and attempted armed robbery.  After referring to the Victim Impact Statements, His Honour said:

“In sentencing you for the five armed robberies to which you have pleaded guilty, as part of the sentencing process the further ten offences which you have admitted and desire to be taken into account may be regarded as having the same bearing on the sentence as if they had been actually charged on the same occasion and been made the subject of convictions.  Those further offences may have an operation in the sentencing process which leads to the imposition of a ‘heavier’ or ‘very substantial’ sentence for each of the five offences with which you have been formally charged, convicted and stand to be sentenced, than would otherwise have been the case (see Wells J in R v White [1981] 28 SASR 9, at 12 and 13; and Olsson J in R v J [1992] 59 SASR 145, at 152).

In application of the relevant legal principles, were I to endeavour to assess each of your five offences of armed robbery, separately, and attribute to each offence a notional proper sentence, due allowance being made in each instance for relevant factors of mitigation, prima facie each sentence should be regarded as cumulative, unless separate offences arose out of the same course of conduct or were connected in any relevant respect.  Were that approach here to be adopted, I would begin at the starting point of seven years imprisonment for each offence and, with a discount of two years (that is, about 30 per cent), arrive at the head sentence of five years imprisonment for each offence which, when multiplied by five, would result in imprisonment for 25 years.

Then I would have to take into account, in the manner previously described, the further ten offences to which you have admitted but have not been charged.  Were that approach to be adopted, I would impose the substantially heavier sentence of about 12 years imprisonment for each of these five offences, which would result in imprisonment for 60 years.

Finally, I would have to review the result in light of the totality principle, so as to ensure that the total sentence is not so disproportionate to your overall offending as to be unduly crushing of you and call for merciful intervention to reduce the total effect (see R v Major [1988] 70 SASR 488).

In some cases, however, the two-tiered approach is not necessary, and it is appropriate and convenient to go directly to the imposition of a single sentence.  In my opinion, that is the position here, because the totality principle must so obviously here operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and assemble the individual sentences that would otherwise be imposed (see R v Symonds [1999] SASC 217; and AB v R (1999) 198 CLR 111).

In these circumstances, upon balancing all the relevant considerations, including, in particular, the totality principle, pursuant to section 18A of the Sentencing Act, for all of the eight offences to which you have pleaded guilty one sentence is here imposed, namely, imprisonment for 30 years. Having regard to all of the circumstances personal to you and these serious offences, I fix the non-parole period of 18 years. Both the sentence and non-parole period are operative from 7 June 2000.”

[1] [2000] SASC 49

[2] [1999] SASC 228

1. The appellant says that the head sentence and non-parole period are both manifestly excessive.  Further grounds of appeal are that the sentencing judge failed to give any or sufficient weight to the appellant’s prospects of rehabilitation, his pleas of guilty, cooperation and to the fact that all the offending was within a six week period.  The sentencing judge is said to have failed to properly apply the totality principle and failed to discriminate between charges of armed robbery, robbery with violence and simple robbery in calculating sentence.

2. We think the sentencing judge may well have erred in making the remark that some of the offences could not have been proved against the appellant without his cooperation with the police.  We think a fairer statement would have been that most of the offences could not have been proved. 

3. The sentencing process adopted by the District Court judge was not the approach to sentencing identified and discussed by the Chief Justice in R v Major[3]. Doyle CJ said that if a single sentence is to be imposed using s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the sentencing judge must consider whether the sentences imposed would be concurrent or cumulative. If a sentencing judge does not do this there is a real danger that a single sentence imposed under s 18A will lack a proper basis and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence, than would otherwise be appropriate, is to be imposed. That being acknowledged, of course, the totality principle has to be considered as well.

   [3] (1998) 70 SASR 488 at 490

4. However, the sentencing judge here embarked upon that principle, without considering whether any of the individual penalties should be concurrent.  He then abandoned that approach when the figures, after taking into account the plea of guilty, reached an apparently absurd total of some sixty years.  He then invoked a different approach.  The different approach was one referred to by the Chief Justice in R v Symonds[4].  This was a case where it was appropriate and convenient to go directly to the single sentence to be imposed because the totality principle would, so obviously, operate to reduce the otherwise appropriate sentence.  As Doyle CJ observed, it is pointless to consider and to assemble individual sentences in such a case:  see R v Symonds[5].  That was this case.  No error can be identified in the course the trial judge took.  But he still seems to have been influenced, at least in part, by the result of the abandoned process.  There would seem to be little point, otherwise, in mentioning it.

   [4] [1999] SASC 217 at [22]

   [5] (1999) SASC 217 at [22]

5. We think the  sentence arrived at is manifestly excessive.  It is a crushing sentence in all the circumstances of this case.  We assume that the sentencing judge was still inclined to allow, and did allow, 30 per cent discount for the appellant’s plea and contrition.  Greater discount could well be justified in the circumstances.  Even on the discount referred to by the sentencing judge, the starting point was of the order of at least 43 years - plainly too much for these offences.

6. In interfering with the sentence, this Court need not mask the real basis for intervention, the manifestly excessive sentence imposed for the matters then before the sentencing judge.  That is sufficient justification for appellate intervention[6]. 

   [6]      A B v The Queen (1999) 198 CLR 111 at 151 [104]

7. It was appropriate, in the circumstances, to impose one sentence for all the offences. They were all committed in a relatively short space of time. The three non-robbery offences were associated with the appellant’s arrest following one of the robberies. Together with the offences not charged, they formed a course of conduct suitable for the application of s 18A of the Criminal Law (Sentencing) Act.

8. The offences lacked the sophistication and potentially more serious consequences of some series of armed bank robberies for which global sentences have been imposed in recent years at levels much lower than the sentence imposed in this case.  The total amount stolen was much less.  The appellant seems to have acted more out of naivety, vulnerability to poly-substance abuse and a misplaced belief by a person of very low self-esteem that the offending would enhance a new-found personal relationship.  They were nevertheless serious crimes, having a variety of effects on the many victims.

9. The appellant’s record was not good, but lacked features of violence as revealed by this series of offending.

10. We think a discount figure of about 40 per cent is appropriate in this case.  Most of the offences would not have been associated with the appellant but for his admissions.  Then there are the further factors of early pleas and contrition.  We therefore fix a head sentence of 15 years and a non-parole period of 10 years.  Both the sentence and non-parole period to operate from 7 June 2000. 

11. The order of the Court therefore is:

    1.     Appeal allowed.

    2.     Set aside the sentence and non-parole period.

    3...... Impose a sentence of 15 years imprisonment with a non-parole period of 10 years, both operating from 7 June 2000.