R v Kloss - [2020] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KLOSS
[2020] SASCFC 88
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Hughes)
10 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
Crown application for permission to appeal against sentence.
The respondent was sentenced on 1 April 2020 to two counts of aggravated robbery. The first count was committed on 2 May 2019 when the respondent robbed a gaming room with a sawn-off shotgun. The second count was committed on 4 May 2019 when the respondent robbed a gaming room at a different location with a sawn-off shotgun and in the company of another person. Following the application of sentencing discounts and after accounting for time in custody, the sentencing judge imposed a single sentence for both counts of 5 years, 7 months and 6 days of imprisonment and imposed a non-parole period of 4 years, 5 months and 22 days which was four-fifths of the head sentence.
The Director sought permission to appeal on the ground that the sentence imposed was manifestly inadequate. The Director contended that the sentencing judge:
- mischaracterised the two counts as requiring wholly concurrent sentences;
- disregarded the sentencing standard of six to eight years for a single offence of aggravated robbery; and
- did not adequately account for particular characteristics of the offending such as the fact that the respondent was not a first offender, the offending was premediatated, the seriousness of the offending, and the need for general deterrence and the protection of the community; and
- did not adequately account for particular characteristics of the offender such as the respondent’s poor rehabilitation prospects and the need for personal deterrence.
The respondent contended that although the starting point of 8 years in total for both counts was on the lower end of the scale, it was not manifestly inadequate as the sentencing judge had accounted for all the relevant circumstances of the offences and clearly had regard to the sentencing standard of six to eight years.
Held per Hughes J (with Peek and Nicholson JJ agreeing), refusing permission to appeal and dismissing the application:
1. The sentencing judge did not err in applying concurrency to the sentence imposed; and
2. The sentence imposed is not manifestly inadequate as it is within the penumbra of sentences that can properly be imposed for this type of offending.
Sentencing Act 2017 s 26, s 52; Criminal Procedure Act 1921 s 157(1)(a)(iii); Criminal Law Consolidation Act 1935 s 137, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v McIntosh [2017] SASCFC 87; R v Payne (2004) 89 SASR 49; R v Young [2016] SASCFC 102, applied.
R v Place (2002) 81 SASR 395; R v Smoker [2016] SASCFC 114; (2016) 126 SASR 201; Peet v R [2018] SASCFC 91; R v Pham (2015) 256 CLR 550; Mill v The Queen (1988) 166 CLR 59, discussed.
R v Jongewaard [2009] SASC 346; Markarian v The Queen (2005) 228 CLR 357; R v Kreutzer [2013] SASCFC 130; (2013) 118 SASR 211; Green v The Queen (2011) 244 CLR 462; CMB v Attorney-General (NSW) (2015) 256 CLR 346; R v Belczacki (2012) 112 SASR 95; R v Siozios [2004] SASC 299; R v Nedza [2013] SASCFC 142; R v McPartland & Polkinghorne [2014] SASCFC 84; R v Copeland (No 2) [2010] SASCFC 61; R v Nylander [2003] SASC 191, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Crown appeals”, “manifestly inadequate”, “sentencing standards”, “concurrency"

R v KLOSS
[2020] SASCFC 88
Court of Criminal Appeal: Peek, Nicholson and Hughes JJ

PEEK J: I would refuse permission to appeal. I agree with the reasons of Hughes J.
NICHOLSON J: I would refuse permission to appeal for the reasons given by Hughes J.
HUGHES J
Introduction
The respondent pleaded guilty to two counts of aggravated robbery committed on separate occasions. He was sentenced to 8 years’ imprisonment, which after reductions led to a sentence of 5 years, 7 months and 6 days with a non-parole period of 4 years, 5 months and 22 days. The Director of Public Prosecutions applied for permission to appeal against the sentence. The application requires consideration of the application of sentencing standards in respect of aggravated robbery on premises.
The circumstances of the Aggravated Robbery at the Whitehorse Inn on 2 May 2019
The first robbery occurred at the White Horse Inn, Bolivar at about 4.40am on 2 May 2019. The respondent entered the premises wearing a makeshift balaclava and carrying a sawn-off shotgun. He leaned over the gaming counter and pointed the shotgun at a staff member. He demanded cash in an aggressive and threatening way. When a security guard entered the room, the respondent pointed the firearm at him. The staff member behind the gaming counter filled the respondent’s bag with money from the till, including canisters of gold coins. As the respondent left the premises he panned the gun in the direction of staff and gaming room patrons. When a patron followed him out into the carpark, the respondent pointed the shotgun directly at her. The respondent then got into a vehicle he had stolen earlier that night and drove away. That offence yielded the respondent the sum of $2,298.10 in cash.
The circumstances of the Aggravated Robbery at the Brahma Lodge Hotel on 4 May 2019
Two days later, on 4 May 2019, the respondent and a female co-offender entered the Lodge Hotel, Brahma Lodge at 3.30am, each wearing a makeshift balaclava. The respondent pointed a shotgun at the security guard and directed him to get on the ground. The respondent aggressively demanded cash from the gaming room supervisor, who emptied contents from the till into the respondent’s bag. When the respondent was distracted, the gaming room supervisor activated the duress alarm. The co-offenders left the premises and sped away in a vehicle. The respondent and his co-offender realised $3,341.0 in cash from that offence.
The respondent’s personal circumstances
The respondent is 39 years of age. He grew up in the Salisbury area and his parents separated when he was very young and he lived mainly with his father. He was consistently employed in manual jobs after leaving school early in Year 8. The respondent had a 20-year relationship with a partner which ended in about 2015. They had four children together, who are now aged between 13 and 20. His mother died by suicide in 2011, following which the respondent developed a dependency on methamphetamine. His partner used that drug as well. He was dependent on that drug from about 2011 to 2015, at which time he was incarcerated upon a conviction for robbery, which caused the relationship to break down. The respondent was abstinent from illicit drugs for a period on his release when he became the carer for his children. However, he relapsed in late 2018 and began using drugs intravenously on a daily basis. At the time of the offending, the respondent was on a four-day methamphetamine binge.
A psychological report prepared by Ms Darmenia, psychologist, dated 22 January 2020 described the respondent to have had a history of recurrent depressive episodes in response to stressful life events, and limited strategies to cope with crisis.
The earlier offending – attempted armed robbery in 2015
Relevant to the sentencing task was a prior conviction for offending that was similar to the two armed robberies. In 2016 the appellant was sentenced for one count of theft, one count of aggravated attempted robbery, one count of driving in a manner to escape police pursuit. At that time he was also sentenced in relation to the cutting off of a home detention bracelet and being in possession of a prescribed drug, both of which occurred whilst he awaited sentence.
The theft and aggravated attempted robbery occurred on 25 January 2015 when the respondent found a car near his residence, and attempted to use credit cards found near that car in a cash dispensing machine. He returned to the car and stole it and disposed of a handbag inside it. The respondent used the car later that evening to go to a service station where he attempted to gain entry but the doors were locked. He was wearing a balaclava and he held a knife up in a threatening manner at the doors at a staff member who was inside. Having failed to gain entry, the respondent left the scene and was later involved in a police pursuit which involved high speeds and dangerous driving. The police eventually apprehended the respondent but only after smashing the windows of the vehicle to prevent the respondent driving off.
In respect of that offending, following the application of early plea discounts and after accounting for time in custody, the respondent was given a single sentence of 31 months and 26 days. The non-parole period was 13 months and 26 days, and his driver’s licence was disqualified for 2 years.
Sentence imposed for the 2019 offending and the approach of the sentencing Judge
The respondent was sentenced for the two offences by a Judge of the District Court on 1 April 2019. The offence of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 attracts a maximum penalty of life imprisonment. The Whitehorse Inn robbery was aggravated by the use of an offensive weapon. The Brahma Lodge Hotel robbery was aggravated by the use of an offensive weapon and the fact that it was committed in company. It was not disputed that the respondent was entitled to a discount of up to 30% on his sentence for his pleas.
The Judge referred to various facts of significance including the respondent’s antecedents which included the prior conviction for aggravated attempted robbery at the service station in 2015. His Honour noted that the offending for which the respondent fell to be sentenced occurred only three months after the expiry of the parole following the 2015 offending, in respect of which the respondent had had the benefit of a “very merciful” non-parole period.
The Judge described the 2019 offending as “frightening [and] traumatising” for staff. Three victim statements were submitted and identified ongoing trauma for the victims as a result of the offences. The Judge noted that the respondent had not disclosed the whereabouts of the gun used in the robberies or the identity of his co-offender in the second robbery.
The Judge also referred to the evidence gained from the respondent’s mobile phone that indicated that the respondent had searched for hotel locations in the hours prior to the first robbery and, after the second robbery, had posed for a photograph of himself standing on a large pile of gold coins. The sentencing Judge said:[1]
Recent decisions by the Supreme Court have decreed that the starting point for penalty in the case of armed robberies on premises such as those you committed your offending on is in the order of six to eight years. That is the penalty for a first offence and it encompasses personal circumstances similar to yours, such as being affected by drugs or being motivated to obtain funds to purchase drugs.
Given the similarity of your offending and given that the offences were committed only two days apart, it is appropriate to impose a single penalty to reflect the overall criminality of your actions. That said, this is very serious offending. It was plainly premeditated in that you had a sawn-off shotgun and had fashioned a disguise. Pointing a sawn-off shotgun at a member of staff or public at close range would have been and plainly was terrifying for the victims concerned and your actions still affect them. You escaped with substantial funds from each premises. Further, you undertook this in the very early hours of the morning and appeared to celebrate afterwards, at least as indicated by the photos taken of you on the pile of gold coins.
[1] Sentencing Remarks in R v Kloss (DCCRM-19-1418) at [18]-[19] (Judge Stretton).
The Judge imposed a sentence of 5 years, 7 months and 6 days with a non-parole period of 4 years, 5 months and 22 days, reached in the following manner.
The Judge began with a notional starting point of 8 years and, using s26 of the Sentencing Act 2017, imposed a single sentence for the two counts. The Judge applied a 30% discount for the early plea and took account of time served. When it came to fixing the non-parole period, the Judge observed that the respondent was a serious repeat offender for the purposes of s 52 of the Sentencing Act 2017 and therefore imposed a non-parole period amounting to four fifths of the head sentence. The Judge declined to suspend the sentence or to require it to be served as home detention.
The sentence imposed upon the respondent was imprisonment for 5 years, 7 months and 6 days, with a non-parole period of 4 years, 5 months and 22 days. The sentence and non-parole period were backdated to 4 November 2019 when the respondent concluded a term of imprisonment for unrelated matters.
Basis of application
The Director of Public Prosecutions sought permission to appeal the sentence on the sole ground of manifest inadequacy. The Director contends that the sentence failed to maintain adequate standards of punishment for offences of this type and failed in regard to the need to maintain confidence in the administration of justice.
General Principles on sentence appeal
The Director’s application is brought pursuant to s157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA) (CPA). There was no dispute as to the applicable principles to the grant of permission. In order to succeed in an appeal against sentence, the Court must determine that the Judge was wrong to impose the sentence that he imposed.[2] There may have been a specific error or the result may have been unreasonable or unjust so as to be properly described as manifestly excessive or, in the case of a Director’s application, manifestly inadequate.[3] Where there is a finding of manifest inadequacy, the function of the appellate court is to re-sentence the offender.[4]
[2]    R v Jongewaard [2009] SASC 346 at [40] (Doyle CJ, Layton and Kourakis JJ (as he then was)).
[3]    Markarian v The Queen (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[4]    R v Kreutzer [2013] SASCFC 130 at [10]; (2013) 118 SASR 211 at 214-215 (Kourakis CJ).
On a Crown appeal against sentence permission will only be granted in rare and exceptional circumstances. In Everett v The Queen (Everett) Brennan, Deane, Dawson and Gaudron JJ said:[5]
Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v. The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.
(footnotes omitted)
[5] (1994) 181 CLR 295 at 299-300.
These principles have been reaffirmed by the High Court.[6] As to what is “rare and exceptional”, King CJ in R v Osenkowski said:[7]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[6] Green v The Queen (2011) 244 CLR 462; CMB v Attorney-General (NSW) (2015) 256 CLR 346.
[7] (1982) 30 SASR 212 at 212-213.
Thus the Crown must establish both process or outcome error and the rare and exceptional circumstances that demand that it be corrected. In R v McIntosh, Hinton J (as he then was), with whom Peek and Nicholson JJ agreed, described it as follows:[8]
…the content of the rare and exceptional test as articulated by King CJ in Osenkowski and Barwick CJ in Griffiths exemplify categories of case where strong reasons of public policy outweigh the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Thus, on a Crown appeal against sentence the Director must establish error in the House v The King sense and, in addition, persuade the Court that there exists such strong reasons of public policy which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed. Only then will permission be granted.
(footnotes omitted)
[8] [2017] SASCFC 87 at [16].
Director’s arguments on appeal
The Director submitted that the circumstances of this case, considered together, created an overwhelming case that the rare and exceptional circumstances for an intervention by this Court is warranted. Those circumstances were said to have arisen by the Judge:
i.not applying the standard of six to eight years for a single offence of aggravated robbery in these circumstances stated in the authorities of R v Place and re-affirmed in R v Smoker;
ii.overlooking that
a.there being two offences of the same type committed on separate occasions, a starting point higher than eight years was required in this case (for example a starting point of eight years for the first robbery would not have been erroneous);
b.the respondent was not a first offender for an offence of this type;
iii.wrongly (or at the very least appearing to have wrongly) apportioning concurrent sentences where accumulation was required; and
iv.failing to take account of
a.the gravity of the offences as being amongst the more serious of their type and the enlisting of a co-offender for the second robbery represented an escalation in offending;
b.that the offending was premeditated;
c.that the respondent’s prospects of rehabilitation were poor given that he committed these offences a short time after completing parole for a similar serious offence;
d.that there was a need for personal and general deterrence;
e.that there was a need to protect the safety of the community (as individuals or in general) which was the primary purpose in sentencing the respondent for these offences.

The Director submitted that for a single offence of armed robbery of this type involving the use of weapons, a notional starting point for a head sentence is six to eight years for a first offender. The Director submitted that in light of the guidance provided by this Court in R v Place[9] and R v Smoker,[10] the Judge’s starting point of eight years for the head sentence ignored the seriousness of the offending and was inconsistent to a significant degree with the guidance that those authorities provided.
[9] (2002) 81 SASR 395.
[10] [2016] SASCFC 114; (2016) 126 SASR 201.
The Director observed that, whilst it was not necessary for a conclusion of manifest inadequacy for a process error to be identified, it could nevertheless be concluded that in this case the Judge mischaracterised the offences as requiring wholly concurrent sentences. The Director was here referring to the Judge’s statement,
“Given the similarity of your offending and given that the offence were committed only two days apart, it is appropriate to impose a single penalty to reflect the overall criminality of your actions.”[11]
[11] Sentencing Remarks in R v Kloss (DCCRM-19-1418) at [19] (Judge Stretton).
Whilst there was no separate appeal ground on this basis, the Director contended that the failure to impose cumulative sentences revealed the error or at least the means, by which the manifest inadequacy arose.
The Director submitted that the offending called for cumulative sentences by virtue of the seriousness of the offences, the differences in circumstances between them and their temporal separation of two days. The Director referred the Court to the authorities concerning the appropriate approach to the use of concurrency as analysed by Peek J in R v Belczacki.[12] He submitted that there were two separate incursions into criminality occurring on different dates and at different venues. The victims were different on each occasion and the second robbery carried with it the aggravating feature of being carried out with a co-offender. Accordingly, cumulative sentences, each consistent with guidance from the sentencing standards, were required in this case.
[12] (2012) 112 SASR 95.
Respondent’s submissions on appeal
The respondent submitted that although the starting point of 8 years was at the lower end of the scale and merciful, it was not manifestly inadequate.[13] The respondent observed that the Judge had taken into account all of the relevant circumstances of the offences and had clearly had regard to the sentencing standard of six to eight years established in R v Place. Further, that when compared with the single sentence of 12 years for six offences in that case, and noting that it was achieved by applying the totality principle to six cumulative offences each attracting a sentence of five years and six months, the result was not significantly different from that which had been applied in this case.
[13] Respondent written submissions dated 5 June 2020 at [6].
The respondent also submitted that the decision to make the sentences operate concurrently was within the Judge’s discretion on the facts of this case. In any event, the question for this Court is not whether an error could be identified in relation to concurrency but whether the sentence was within the acceptable range for this conduct.
Finally, the respondent submitted that, in the exercise of its residual discretion, this Court should dismiss the appeal whilst expressing its views as to such matters of principle that the case invited.
Consideration
In Peet v R, Kourakis CJ described the nature of the allegation of manifest inadequacy of sentence as follows:[14]
In Dinsdale v The Queen Gleeson CJ and Hayne J observed that manifest inadequacy was a statement of conclusion that did not depend upon attribution of error. A sentence was either plainly inadequate or not plainly inadequate. Accepting this, it follows that to determine whether a sentence is or is not plainly inadequate, it is necessary to, in effect, repeat the sentencing task undertaken by the sentencing judge and, doing so, consider whether the sentence imposed by the judge did not lie within the permissible range such that it may be said to be plainly inadequate. Thereafter, if error is established, this being a Crown appeal, the Everett principles, the effect of which is summarized in the passage taken from R v Lean above, must be applied.
(footnotes omitted)
[14] [2018] SASCFC 91 at [6].
It was once common to describe that manifest inadequacy as having been established where the sentence was such as to “shock the public conscience”. In more recent times, that phrase has been eschewed: R v Siozios,[15] R v Nedza,[16] R v McPartland & Polkinghorne.[17] Rather, the preferable approach is that taken by this Court constituted by five Judges in R v Payne in which Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ said in a joint judgement:[18]
The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.
(emphasis added)
[15] [2004] SASC 299.
[16] [2013] SASCFC 142 at [65].
[17] [2014] SASCFC 84.
[18] (2004) 89 SASR 49 at [86].
The adequacy of the punishment can be reviewed against sentencing standards established from time to time by the Court. In R v Pham, French CJ, Keane and Nettle JJ summarised the purpose of sentencing standards as follows:[19]
[19] (2015) 256 CLR 550 at [26]-[28].
... As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, second, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.
...
Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
(footnotes omitted)
Standards are of assistance within a State jurisdiction and not merely to ensure coherence within the federal system. Kourakis CJ said in R v Young:[20]
[20] [2016] SASCFC 102 at [14], [19]-[22].
A sentencing standard is ‘authoritative guidance’ to judges sentencing offenders for offences of the kind it covers. A standard identifies a penalty range which, for the ‘ordinary case’ is supported by sentencing principles, but acknowledges that the particular circumstances of the offender and the offending may support a more lenient disposition. In Police v Cadd, Doyle CJ explained the important function served by sentencing standards as follows:
The function of establishing appropriate standards is an important aspect of ensuring, as best one can, that adequate standards of punishment are observed. Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.
…..
In Kovacevic v Mills, Doyle CJ, Mullighan, Bleby and Martin JJ acknowledged that deterrence could not displace all considerations and that all relevant considerations must be taken into account and given due weight. They emphasised that the establishment of a sentencing standard did not require a judge or magistrate, when imposing sentence, to take into account only one of the relevant sentencing considerations, be it deterrence or some other consideration.
Nonetheless their Honours confirmed that it is sometimes appropriate for the Court of Criminal Appeal to indicate that a certain type of offending is likely to attract a certain type of punishment, and in particular imprisonment, and to indicate an appropriate sentence range for particular types of offending.
The plurality reaffirmed that sentencing standards are not rigid:
However, we agree that a sentencing standard cannot dictate a result in every case, or remove the need for consideration of the facts of each case and the application of the relevant considerations to those facts.
In R v Place, five Judges of this Court sat to consider the extent to which the decision of the High Court in Wong v The Queen was inconsistent with the South Australian practice. Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing) held that it was not. Their Honours reaffirmed that identification of sentencing standards for the guidance of sentencing courts is a proper function of the Court of Criminal Appeal.
(footnotes omitted)
What is clear from the authorities regarding sentencing standards is that they may guide the sentencing court and the appellate court as to the appropriate range of sentences for an offence carried out in typical circumstances by an offender whose personal circumstances are not especially mitigating. However, sentencing standards do not dictate an outer range beyond which manifest inadequacy is established.
Sentencing standards in relation to aggravated robbery on premises
R v Place[21] involved an offender who had committed six robberies with an imitation firearm. He was sentenced as a first offender. His behaviour, though undoubtedly and not unreasonably perceived as threatening, was not accompanied by shouting or particular threats. The accused implicated himself in five earlier robberies when he was arrested for the sixth. The Court imposed cumulative sentences of five and a half years for each robbery. The sentences were discounted by 25-30% each. The accumulated sentence was then reduced by application of the totality principle with an overall sentence of 12 years’ imprisonment.
[21] (2002) 81 SASR 395.
In R v Place, this Court constituted by five Judges made the following statements with respect to the offence of armed robbery:[22]
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. ...
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.
[22] R v Place (2002) 81 SASR 395 at [100]-[101] (Doyle CJ, Prior, Lander and Martin JJ).
The statements in R v Place were affirmed in 2016 in R v Smoker,[23] in which the defendant was sentenced to eight years’ imprisonment for a single armed robbery, and the sentence was required to be served cumulatively upon an existing sentence of four years and six months that was partially served. The defendant argued that the sentencing judge had failed to properly apply the totality principle and that the sentence was manifestly excessive. In a joint judgment dismissing the appeal, Lovell and Hinton JJ observed of the guidance provided by R v Place that the standard had “repeatedly been affirmed by this Court as has the importance of its maintenance” and that “those who commit aggravated robberies of the type committed here can expect to receive heavy sentences”.[24]
[23] [2016] SASCFC 114; (2016) 126 SASR 201 at [11] (Nicholson J).
[24] R v Smoker [2016] SASCFC 114 at [68] and [102]; (2016) 126 SASR 201 at 220 and 231.
Having used s 26 to determine that a single sentence should be imposed, it is difficult to conclude with any certainty how the eight year head sentence was reached in this matter. However, there is some force in the Director’s contention that the Judge characterised the offending as unified under the umbrella of the drug binge and warranting concurrency of sentences. In this regard the Judge said:[25]
Given the similarity of your offending and given that the offences were committed only two days apart, it is appropriate to impose a single penalty to reflect the overall criminality of your actions.
[25] Sentencing Remarks in R v Kloss (DCCRM-19-1418) at [19] (Judge Stretton).
There are many ways that an appropriate sentence may properly be fashioned. In Mill v The Queen, the High Court, comprising Wilson, Deane, Dawson, Toohey and Gaudron JJ, stated in relation to the application of the totality principle that:[26]
... an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[26] (1988) 166 CLR 59 at 63.
The Director invited the Court to conclude that the appropriate approach in this case would have been to identify a notional head sentence for each offence. Such an approach is often helpful in the understanding of the sentence.[27] It is not the only approach however, and to do so could lead to a starting point to which an “air of unreality” attaches.[28] The role of this Court is not to set about the task of constructing the sentence without first determining whether the sentence is within the range of sentences that was open to the Judge to impose.
[27] R v Copeland [No 2] [2010] SASCFC 61 at [107] (Kourakis, J (as he then was)); R v Belczacki (2012) 112 SASR 95 at [65] (Peek J).
[28] R v Nylander [2003] SASC 191 at [81]-[85] (Bleby J).
The requirement to impose a non-parole period that is four-fifths of the head sentence because of the respondent’s status as a serious repeat offender may have weighed on the Judge’s mind. Whilst not requiring a conclusion in this matter, there is a question as to whether the limiting of the discretion in relation to non-parole periods is relevant to the consideration of sentencing standards.
The Director has established that the sentence is low, perhaps even inadequate, by reference to sentencing standards. In particular, the respondent was not a first offender and there were circumstances that excluded the offending from the least serious within the range. However, the question for the Court is not whether the sentence is the one that this Court would impose. Rather it is whether, given the necessary absence of any metes and bounds of the range, the standards of penalty for this type of case and the confidence of the public can be maintained if this sentence remains. This is a case that called for consideration of that question. The features of the respondent’s offending and his personal circumstances that have the potential to undermine confidence in the administration of justice if the sentence is upheld are twofold. The respondent had only completed his previous sentence three months prior to the subject offending. Not only was he not a first offender, the recency of the prior, similar, offending suggests that personal deterrence was required to play a significant role in the setting of the sentence for the subject offences.
Secondly, there were several features of the offending that particularly marked its seriousness. The use of a sawn-off shotgun is to be condemned in the strongest terms as a terrifying weapon. The respondent did not cooperate with police to locate the gun or guns[29] that were used in the two robberies. The specific threats to the security officer must have been well-understood to cause him fear for his life. The presence of an accomplice tells in favour of a higher sentence for the second count.
[29] The Court was not advised whether the firearm was the same in both offences.
Against these features, the proximity of the offences to one another against the backdrop of the binge allow for the application of some concurrency or some adjustment for the application of the totality principle. Kourakis CJ said in R v Young:[30]
… there is necessarily a penumbra between the core of sentences which can properly be imposed, and those outlying sentences which cannot properly be imposed consistently with sentencing principle. Within that penumbra it is not possible to delineate precisely the metes and bounds of the proper range. It is for that reason that it is only manifest excess or inadequacy, and not mere excess or inadequacy, which will vitiate the sentence.
[30] [2016] SASCFC 102 at [36].
The circumstances of this case place the sentence within the penumbra. The sentence is not manifestly inadequate. I would refuse permission to appeal.