R v Khim

R v KHIM
[2002] SASC 343
Court of Criminal Appeal: Perry, Williams and Gray JJ

PERRY J. The appellant appeals by leave against the sentence imposed upon him in the District Court following his plea of guilty to five separate counts of armed robbery. The learned sentencing judge imposed a single sentence of 12 years imprisonment against which he fixed a non-parole period of 10 years. In doing so, the judge gave credit for about eight months which the appellant had already served in custody while on remand with respect to the offences in question.
The appellant claims that both the head sentence and the non-parole period are manifestly excessive.
All five offences were committed within a short period of time, namely, between 7 August 2000 and 4 September 2000. On each occasion the appellant was armed with a samurai sword.
On three occasions the appellant robbed service stations and, on the remaining two, pizza shops. On one occasion the amount taken was about $1000. The amount involved on the four other counts varied between $300 and $500. While no-one was physically injured, a number of people in the premises at which the offences were committed were put in fear.
The appellant was 19 years old at the time of the offences. At the time he was sentenced, that is on 26 March 2002, he was 21 years of age.
The appellant had an unstable early childhood. He migrated with his parents from Cambodia when he was aged about eight. Before he left Cambodia he witnessed a number of traumatic incidents, including the return of his father to the family home after the latter had been shot in the leg.
The appellant’s parents separated after they had been in Australia for about a year, a circumstance which had a destabilising influence on the appellant. His schooling deteriorated and he began to lead an aimless life.
At the age of 18 he began taking heroin and quickly developed an addiction. This brought him into the criminal justice system. In 1999 he was sentenced in the District Court on charges of possessing heroin for sale upon which he was sentenced to two years imprisonment with a non-parole period of seven months dating from May 1999.
In September 2000 he was taken into custody pursuant to a Parole Board warrant for breach of a condition of parole following which he served the unexpired balance of the sentence. That sentence was completed on 27 June 2001 after which he remained in custody by reference to the offences now in question.
The learned sentencing judge had the benefit of a report furnished by Mr Richard Balfour, psychologist. He describes efforts which the appellant made from time to time to shake free of his drug addiction. At one stage he went on to the methadone programme but this was not successful.
Mr Balfour describes the appellant as having an “introverted personality”. He said that the appellant was “exposed to some traumatic incidents in Cambodia but does not appear to have suffered any significant ongoing mental health problems”. He commented that at the time of the offences the appellant was “battling with an escalating heroin addiction”. He concluded that “with the assistance of a supervised, structured rehabilitation programme, I believe that Mr Khim’s prognosis to cease offending is fair ...”.
Mr Balfour expresses a number of reasons for reaching that conclusion, including the fact that the appellant’s offending appears to be mainly drug related and that there is no “... significant clinical evidence to diagnose him as having an antisocial personality disorder”. He took into account also that the heroin addiction is relatively recent and involves smoking heroin rather than intravenous use. He observed also that the appellant “... does not suffer from any compounding co-morbid psychopathology (ie anger management problems, etc) that would complicate the treatment of his heroin addiction”.
The learned sentencing judge in his sentencing remarks described the offences as “very serious”. He went on to refer to the totality principle and acknowledged that he should avoid imposing a “crushing sentence”. He intimated that he would “normally” sentence the appellant to a term of 15 years imprisonment but he reduced it to 12 years because of the pleas of guilty.
By referring to the totality principle at the stage at which he did, the learned sentencing judge erred. It was made clear in Place[1] that “the question of totality is the final step in the sentencing process ...”.[2]
[1] (2002) 81 SASR 395.
[2] Ibid per Doyle CJ, Prior, Lander and Martin JJ at 426, para 87.
From his sentencing remarks in this case, the learned sentencing judge’s starting point of 15 years was arrived at after application of the totality principle, in order to avoid a “crushing sentence”. Not only does that reverse the sequence of the appropriate steps to be taken as set out in Place and the authorities referred to in that case, but the learned sentencing judge does not indicate the true starting point which he discounted in order to reach the period of 15 years.
Of course, it does not follow that in the final result the head sentence which he finally arrived at, namely 12 years, if erroneous. Given that the Full Court in Place (supra) reaffirmed that the sentencing standard intended to apply to ordinary cases of armed robbery remains a sentence of imprisonment of 6 to 8 years, the starting point in cases involving multiple armed robbery offences can be very high and will ordinarily attract the application of the principle of totality.
As I observed in Mawby,[3] the Court of Criminal Appeal in Place:
“... was at pains to point out that an armed robbery constituted by a one-on-one street offence in which a purse or wallet is taken is within the 6 to 8 year standard.”
[3] R v Mawby, Court of Criminal Appeal [2002] SASC 173 (unreported).
In this case, not only did the appellant make use of a quite frightening weapon, namely a samurai sword, but he chose what have commonly been described as vulnerable targets, namely premises kept open late at night in the interests of serving the public, where in some instances at least, he put a number of persons in fear.
In those circumstances, it seems to me that the minimum penalty which might be thought to be appropriate to each of the offences, considered separately, would be the order of 7 years, which in turn would result in an overall starting point of 35 years.
Against that background, it could not possibly be suggested that to start with a term of 15 years before reduction on account of the plea of guilty is indicative of error. It must follow that the head sentence ultimately imposed in this case, namely 12 years, which represents a 20% reduction on account of a plea of guilty, could not be regarded as manifestly excessive.
Given those considerations, not surprisingly, Ms O’Connor, counsel for the appellant, while not abandoning the appeal insofar as it related to the head sentence, directed the weight of her argument towards the non-parole period.
At first blush, a non-parole period of 10 years against a head sentence of 12 years, particularly bearing in mind the appellant’s youth, appears high.
But it would be wrong to approach this aspect of the matter on the footing that there is any sort of “norm” as to the proportion of the head sentence represented by the non-parole period. This was made clear in Creed[4] where King CJ (with whom Cox and Olsson JJ concurred) said:[5]
“Counsel for the respondent mentioned, in the course of his submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two-thirds, in an ordinary case, of the head sentence. The members of this bench know of no such practice and speaking for myself, and I think the other two members of this Court, I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.”
[4] (1985) 37 SASR 566.
[5] Ibid 569.
Given those observations, it is clear that there will usually be no good purpose served by attempting to make comparisons with the non-parole period fixed in other cases.
Here, despite the relative youth of the appellant, there was a question mark over the prospects of his rehabilitation. Mr Balfour described those prospects as only “fair”. Furthermore, the offences in question were committed while the appellant was on parole for his earlier offending. Not only was the commission of these offences a breach of parole, but he had earlier broken a condition of the parole by failing to attend more than two sessions of a victim awareness program which was a designated condition of his parole, and failing to report as directed.
While no doubt these failures were a product of the fact that he relapsed into his heroin addiction, coupled with his resort to further serious offending, it was open to the learned sentencing judge to take the view that the appellant’s prospects of rehabilitation did not justify the setting of a non-parole period lower than that which he imposed.
While one does not like to see a young man committed to such a substantial period of incarceration, I am unable to conclude that in the circumstances of this case the learned sentencing judge erred in taking the course which he did.
I would dismiss the appeal.
WILLIAMS J. I agree that the appeal should be dismissed for the reasons given by Perry J.
GRAY J. This is an appeal against sentence.
Background
The appellant Sokhoeun Khim was charged with nine counts of armed robbery and one count of assault with intent to rob. He pleaded guilty to five of those counts[6] and nolle prosequis were entered to the remainder. His counsel explained that the offences were all committed whilst the appellant was under the influence of heroin addiction in an effort to obtain money to feed that addiction.
[6] The information relevantly provided:
The similarity between the appellant’s modus operandi was marked. Over a period of approximately one month he entered three service stations and two pizza shops at night. On each occasion he used a samurai sword to threaten employees. Demands were made and money and cigarettes handed over. No physical injuries were caused to any of the victims however they were frightened and feared for their safety.
The appellant was aged 19 at the time of the offending. His criminal antecedents dated back to 1999 and involved selling heroin, possessing heroin for sale, unlawful possession and possess a prescription drug. He received two years imprisonment with a non-parole period of 7 months and a fine for this offending. The appellant was on parole at the time of the current offending. He apparently met up with a drug using fellow releasee and started using heroin again. He then went on the methadone program but his attendance lapsed and he also failed to attend to his obligations to attend rehabilitation programs that formed part of his parole conditions. Accordingly he breached his parole when he committed the current offences in August 2000. His parole was cancelled and he was ordered to serve 9 months and 20 days imprisonment being the remainder of his sentence.
The sentencing judge’s remarks included:
“I have taken into account you are still a young man and all hope for the future must not be taken from you and also that you have pleaded guilty and accepted responsibility for these offences. I bear in mind also the totality principle in sentencing, that really although they are five separate offences they are part of an overall course of conduct and the seriousness of these offences must be considered distinct from cumulative penalties which would amount to what would be a crushing sentence. Bearing all these matters in mind, I would normally sentence you to a term of imprisonment of 15 years. I reduce that to 12 years because of your pleas of guilty. I set a non parole period of 10 years imprisonment.”
Counsel for the appellant complained that the head sentence and the non-parole period were manifestly excessive and that an inadequate reduction had been made on account of the appellant’s pleas of guilty.
Issues on Appeal
The appellant’s conduct attracts the description of a multi-faceted course of conduct. All five offences were committed over a period of some 29 days. As earlier observed, his modus operandi was similar. All offences were drug related. The impact on his victims varied. The offences formed part of a course of conduct.
The offending conduct contained elements that called for the application of cumulative as well as concurrent sentencing principles.
In Attorney General v Tichy[7] Wells J observed:
“The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.”
[7] (1982) 30 SASR 84 at 93
Counsel for the Crown relied on the following passage from R v Elliott[8]:
“To adopt the approach outlined in Major in this case would involve considering each offence in isolation before considering the total sentence. The difficulty with such an approach is that each offence cannot sensibly be treated in isolation. Each offence was aggravated by the other offences. To consider any one offence necessarily involves considering all offences. Proper consideration cannot be afforded to any one offence if considered in isolation.
I consider the approach outlined in Major even as modified in Symonds to be of no assistance in this case. It is not appropriate for a ‘one course of conduct’ case or a ‘one transaction’ case or a ‘one multi-faceted course of criminal conduct’ case. This is a case where it is appropriate and convenient ‘to go directly to the single sentence to be imposed’.”
[8] (2000-2001) 121 A Crim R 254 at 267
To start by determining that each crime on a stand alone basis called for a number of years of imprisonment and then to total those terms before considering any circumstances of aggravation and mitigation an appropriate reduction for pleas of guilty and the application of the totality principle may be said to be in conflict with the majority view of the High Court. In Pearce v The Queen[9] McHugh, Hayne and Callinan JJ said:
“Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.”
[9] (1998) 194 CLR 610
In AB v The Queen[10] the general approach to sentencing was addressed by McHugh J:
“To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases - where punishment, deterrence and protection dominate the process - such an approach almost always invites error. Statutory exceptions aside, the task of the judge ‘is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence’. If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. Instead of sentencing this embezzler, with this history, for taking this amount in these circumstances, consciously or unconsciously, the judge may determine the objective sentence by what is perceived to be appropriate for an embezzler who has taken a large (or small) amount of money in breach of trust. Abstraction replaces the convicted person’s circumstances in determining the appropriate sentence.
...
The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby, Street CJ said, correctly in my opinion, that the ‘determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements’. No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an ‘objectively’ determined sentence.”
The remarks were approved in Wong v R[11] by Gaudron, Gummow and Hayne JJ.
[10] (1999) 198 CLR 111 [16] and [18], see also Hayne J at [115]
[11] Wong v R; (2001) 185 ALR 233 at 252 at [76]
In R v Place[12] the court rejected the proposition that a sentencing tariff had been promulgated by this court for the offence of armed robbery:
“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.”
[12] [2002] 81 SASR 395 at [104-105]
The court considered it undesirable to attempt to attach labels to any particular type of armed robbery for example as a “street offence”:
“Notwithstanding the care with which Perry J [in Newton[13]] explained the circumstances that, in his view, could lead to the description of a particular offence of armed robbery as a “street offence”, for the reasons we have given, in our opinion it is undesirable to attempt to attach labels of that type to a particular set of circumstances.
Perry J also suggested that the standard had been formulated by reference to a “category of offence” which he identified as “a bank hold-up or armed robberies committed against business houses which are “vulnerable targets” such as chemist shops or service stations trading late at night …”. A footnote to the passage cited referred to a number of appellate decisions involving armed robberies of those types of premises. In our opinion, however, the authorities to which his Honour referred were not concerned with identifying a standard applicable to a “category of offence”, but were indicating that the particular offences fell within the broad description to which we have referred. As we have said, in our view it is inappropriate to attempt to create categories of offending or to regard the standard as applying to a particular ‘category’.”
[13] R v Newton [2002] SASC 36 at [46] - [47]

This appeal must be considered against the background of these remarks. The circumstances of armed robberies are variable as are the motivations and reasons for their commission[14].
[14] (2002) SASC 36
The appeal against the head sentence was faintly argued. No material error was identified. The only area of possible complaint was that the judge considered a totality principle before making a reduction for the pleas of guilty. This is contrary to the preferred approach identified in Place. However the methodology adopted by the judge did not lead to any error in the ultimate sentence imposed.
The sentencing judge did not adopt a two tiered approach. He exercised his discretion having regard to relevant matters. No error of sentencing principle has been identified. The judge did not have regard to irrelevant material and did not fail to have regard to relevant material.[15]
[15] Dinsdale v R (2000) 202 CLR 321 –
The fixing of non parole period of 10 years against a head sentence of 12 years may initially appear to be disproportionately lengthy. However there are features of this case that justified the sentencing judge’s exercise of discretion. As earlier observed, the appellant’s criminal record included selling heroin and possessing heroin for sale. For these offences he was sentenced to imprisonment but given a relatively short non parole period – seven months against a head sentence of two years imprisonment. On that occasion the court afforded the appellant some leniency with a view to his rehabilitation. However when released the appellant demonstrated that he was a poor candidate for parole. Not only did he commit the current armed robberies whilst on parole he also failed to comply with conditions that were designed specifically to assist his rehabilitation.
The judge was entitled to fix a lengthier non parole period given the appellant’s criminal and personal antecedents and the gravity of his criminal conduct. No basis has been shown to justify interfering with the exercise of the judge’s discretion in fixing the non parole period.
This appeal must be dismissed.

“ Statement of Offence
Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935)

Particulars of Offence

Sokhoeun Khim on the 7^th day of August, 2000 at Parafield Gardens, being armed with an offensive weapon, namely a samurai sword, robbed [SHY] of money in the amount of about $300 and a quantity of “Winfield” brand cigarettes.

Statement of Offence

Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935).

Particulars of offence”

Sokhoeun Khim on the 20^th day of August, 2000 at Prospect, being armed with an offensive weapon, namely a samurai sword, robbed [SGH] of money in the amount of about $450.

Statement of Offence

Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935)

Particulars of Offence

Sokhoeun Khim on the 27^th day of August, 2000 at Windsor Gardens, being armed with an offensive weapon, namely a samurai sword, robbed [JBA] of money in the amount of about $500.

Statement of Offence

Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935)

Particulars of Offence

Sokhoeun Khim on the 31st day of August, 2000 at Allenby Gardens, being armed with an offensive weapon, namely a samurai sword, robbed [TJN] of money in the amount of about $1,000.

Statement of Offence

Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935)

Particulars of Offence

Sokhoeun Khim on the 4th day of September, 2000 at Salisbury Downs, being armed with an offensive weapon, namely a samurai sword, robbed [WKD] of money in the amount of about $400.”

The approach of an appellate court when reviewing sentences has been the subject of recent comment by the High Court in Dinsdale v R [15]. Gleeson CJ and Hayne J said at [3-4]:
“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”

[2002] SASC 343

24 October 2002