R v KHEM - [2005] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v KHEM
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Vanstone and The Honourable Justice Anderson)
18 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE
Appeal against sentence - basis of appeal the failure to suspend the sentence - appellant pleaded guilty to one charge of robbery contrary to s137(1) of the Criminal Law Consolidation Act 1935 - sentenced to imprisonment for two years three months with a non-parole period of 10 months - victim of the offence was an attendant, alone at a service station at 2:25 am - appellant climbed onto the counter and kicked the attendant in the head - victim sustained a broken nose and suffered shock - mitigating factors included the age of the appellant, who had just turned 18, that this was a first offence, the appellant's contrition and his prospects for rehabilitation - sentencing Judge declined to suspend the sentence and found that in the circumstances deterrence outweighed the mitigating factors - consideration of vulnerability of such victims - Held: no error on the part of the sentencing Judge demonstrated - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s10; Criminal Law Consolidation Act 1935 s137(1), referred to.
R v Place (2002) 81 SASR 395; R v McMann (1997) 70 SASR 1; R v Blackmore [2004] SASR 298; Birch v Fitzgerald (1975) 11 SASR 114, considered.

R v KHEM
[2005] SASC 178
Court of Criminal Appeal: Bleby, Vanstone and Anderson JJ

BLEBY J I agree that the appeal should be dismissed for the reasons given by Anderson J.
There were undoubtedly factors relating to the appellant’s personal circumstances which militated in favour of suspension of the sentence. Those factors included his youth, the fact that this was a first offence, his contrition and his prospects of rehabilitation. However, this was a serious offence, carrying a maximum penalty of 15 years imprisonment. The assault was unprovoked. Indeed, the victim took steps designed to defuse the threats of the appellant by offering him one of his own cigarettes.
The consequences of the assault were very serious for the victim, and he was, at the time, extremely vulnerable, being the sole attendant at a service station at 2.25 a.m. on a weekday. People in that situation are entitled to whatever protection the law can give them. Deterrence was necessarily an important consideration in the sentencing process.
The appellant does not complain about the sentence imposed. The sentencing Judge was faced with a difficult question about suspension of the sentence. That is essentially a discretionary decision. The Judge carefully considered all the matters relevant to suspension, and rejected that as an option. Having regard to the circumstances of the offence, that was an option clearly open to her. It cannot be said that her discretion miscarried.
The Judge gave appropriate weight to the personal circumstances of the appellant and to his prospects of rehabilitation by fixing a generous non-parole period. Others might have taken a different course. However, that cannot dictate the outcome of this appeal.
The exercise of the discretion not to suspend the sentence did not miscarry.
VANSTONE J I agree that the appeal should be dismissed for the reasons given by Anderson J. I also agree with the further observations of Bleby J.
ANDERSON J In this matter the appellant appeals against a sentence of imprisonment imposed by a District Court Judge on 2 March 2005. The appellant had pleaded guilty to one count of robbery contrary to the provisions of s137(1) of the Criminal Law Consolidation Act1935.
The offence is a major indictable offence for which the maximum penalty is 15 years imprisonment. The sentence imposed was two years and three months with a non-parole period of ten months.
The brief circumstances of the offence are that on Thursday 2 October 2003 in the early hours of the morning, the victim was working at the BP service station on the corner of Bolivar Road and Port Wakefield Road at Paralowie where he was employed as a console operator. He was the only person in the service station at the time.
The appellant came into the shop and asked him for a packet of cigarettes, and when he found out the price he said he would return. He did return later, and again asked for a packet of cigarettes and then asked whether the operator would give them to him for nothing. When the operator declined to give the cigarettes to him, the appellant threatened to jump the counter at which stage the operator offered him one of his own cigarettes.
Still photographs and a video from security surveillance show that the appellant climbed onto the counter and kicked the operator in the head. The appellant then stole a packet of cigarettes. As a result of his injuries the operator was taken to the Lyell McEwin Hospital and was treated there for shock and a broken nose.
The learned trial Judge was informed that unfortunately the operator had earlier been the victim in another attack on him whilst he was working at the same service station, and the effect of this attack on him was profound. He remains nervous and scared according to his Victim Impact Statement. This is perfectly understandable. He has also undergone some psychiatric treatment following the trauma, including therapy and anti-depressant medication.
The appellant pleaded guilty at the first available opportunity. He had turned 18 on 8 September 2003, just before this offence. He had come to Australia as a refugee when an infant. He was educated to Year 11, and since that time has worked in various jobs. He has a reasonably good work record and two of his previous employers wrote references for him describing him as both a reliable and efficient worker. The learned Judge assessed his prospects of rehabilitation as good.
The appellant was sentenced by the learned Judge to a term of imprisonment for two years and three months which her Honour had reduced from three years because of the plea of guilty. Her Honour fixed a non-parole period of 10 months which dated from 25 January 2005 when the appellant was taken into custody.
The argument on this appeal is that a suspended term of imprisonment should have been imposed by the learned sentencing Judge. The reasons for suggesting that a suspended sentence was appropriate included the appellant’s youth, his reasonable employment prospects, the fact that he had no previous convictions, the fact that he pleaded guilty at the first available opportunity, the fact that he showed remorse for his actions and that his prospects of rehabilitation are good.
As against these factors the learned sentencing Judge said in her sentencing remarks:
“In the end I have come to the conclusion that considerations of general deterrence must prevail over the mitigating circumstances which I acknowledge exist in your case. I have come to this conclusion because I believe that the court must send a message that those persons who commit serious offences, and robbery with violence is a serious offence, upon employees working so late at night and in vulnerable situations will have the full protection of the law.”
Her Honour, after weighing up the mitigating circumstances personal to the appellant, then imposed what she described as “a very low non-parole period” to reflect those mitigating circumstances. It is indeed a very low non-parole period.
A criticism was made that the learned sentencing Judge commented during submissions to the effect that it would be an exceptional case to order a suspended sentence. It was submitted that this indicated an incorrect approach by her Honour. That comment was made in the context of a general discussion about the possible result if the matter had been dealt with in the Youth Court just prior to the appellant turning 18, and it then led to a discussion in relation to a decision involving a suspension of imprisonment in relation to an armed robbery.
In the passage set out in paragraph 17 above it seems clear to me that the learned Judge was not dealing with this matter on the premise that it would only be in an exceptional case that a sentence would be suspended, but rather that that decision would be reached by balancing all the factors she mentions in her reasons, including the degree of violence involved.
It was argued that deterrence in this case should not necessarily result in a custodial sentence. It was submitted that imprisonment in this case may have the opposite effect on the appellant and that proper supervision on a suspended sentence would be a better deterrent. There is nothing in her Honour’s reasons which suggests that she underestimated the impact of a term of imprisonment on a person as young as the appellant.
The decision of the learned Judge was finely balanced and involved the Judge exercising her discretion having regard to all the relevant factors. It has not been suggested that her Honour either failed to take into account any relevant factors or took into account erroneously any factor relating to the exercise of her discretion.
In my view her Honour correctly set out in her sentencing remarks the various factors both for and against imposing a suspended sentence. Those factors are the matters set out in s10 of the Criminal Law (Sentencing) Act 1988. It was a very difficult decision which faced her Honour. There were compelling factors related to the personal circumstances of the appellant which might have led to the imposing of a suspended sentence. However, her Honour was quite correct to point out that robbery with the use of force is a serious crime with emphasis on the particular vulnerability of “lone service station attendants late at night”, as illustrated by the fact that this was the second attack on this victim whilst working at the same service station.
In dealing with this offence, it is my view that her Honour had in mind the comments of this court in R v Place (2002) 81 SASR 395 at 429 and R v McMann (1997) 70 SASR 1 at 3 relating to considerations of deterrence.
In R v Blackmore [2004] SASC 298 White J referred to those two decisions before saying at [24]:
“Those whose businesses and employments involve the handling of money are vulnerable to these types of offence. Such persons, and the community generally, are entitled to look to the Courts for protection and to expect that the sentences imposed will provide effective deterrents to future offending of the same kind. The community is also entitled to expect that the sentences imposed for offences of this type will reflect their gravity.”
Doyle CJ and Perry J agreed with the reasons of White J.
Going back further in time, Bray CJ dealt with the same considerations in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117. After a discussion of youthful offenders of good character, Bray CJ said:
“Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated….. It may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.”
I accept that suspension of the sentence was certainly an available option, but I am not prepared to interfere with the discretion of the learned sentencing Judge because of the seriousness of the crime. In my view, no error has been demonstrated.
I would therefore dismiss the appeal.