R v Knowles
[2007] SASC 185
•23 May 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNOWLES
[2007] SASC 185
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
23 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant sentenced for 50 offences - some indictable offences and some summary offences - some offences not punishable by imprisonment - appellant sentenced for all offences pursuant to s 18A of the Criminal Law Consolidation Act 1935 to imprisonment for 16 years and six months with a non-parole period of 10 years - whether judge erred in applying s 18A.
Held: judge erred in imposing a single sentence pursuant to s 18A - a sentence of imprisonment pursuant to s 18A cannot be imposed in respect of offences not punishable by imprisonment - appellant re-sentenced - (by majority) head sentence of 14 years and three months imprisonment with a non-parole period of nine years imposed for all offences attracting a sentence of imprisonment - convictions recorded and no further penalty imposed for offences not punishable by imprisonment - appellant disqualified from holding or obtaining a driver's licence for a period of 12 months - firearm seized to be forfeited to the Crown and appellant disqualified from holding or obtaining a firearm licence until further order.
Criminal Law (Sentencing) Act 1988 (SA), s 13, s 18A; Motor Vehicles Act 1959 (SA), s 9, s 74, s 102; Firearms Act 1977 (SA), s 11, s 34A; Criminal Law Consolidation Act 1935 (SA), s 19, s 29, s 47A, s 85, s 86A, s 134, s 137, s 139, s 169; Summary Offences Act 1953 (SA), s 15, s 17, s 51, s 74A; Domestic Violence Act 1994 (SA), s 15; Controlled Substances Act 1984 (SA), s 32; Road Traffic Act 1961 (SA), s 42; Bail Act 1985 (SA), s 17, s 22, referred to.
Hermel v Police (2000) 76 SASR 336; Oliver v The Police [2004] SASC 8; R v Bennett [2005] SASC 55, applied.
R v Capalbo (2005) 238 LSJS 245; R v Allen (2002) 81 SASR 434; R v Gibbs (2004) 89 SASR 30; R v Simpson (2004) 89 SASR 515; R v Mathew [2001] SASC 390; R v Tu (2001) 216 LSJS 298; R v Proom (2003) 85 SASR 120; R v Symonds [1999] SASC 217; R v BRWK (2005) 91 SASR 200; R v Kench (2005) 238 LSJS 482; R v E, AD (2005) 93 SASR 20; R v Waugh (2005) 93 SASR 274; Fitzgerald v Police [2000] SASC 37; R v Jeffries [2004] SASC 188; Coombs v Police [2001] SASC 97; Sideridis v Police [2001] SASC 90; Offe v Police (2002) 84 SASR 1; R v Nylander [2003] SASC 191, considered.
R v KNOWLES
[2007] SASC 185Court of Criminal Appeal: Duggan, Gray and White JJ
DUGGAN J: I agree with the orders proposed by White J. I also agree with the reasons prepared by him.
GRAY J
This is an appeal against sentence.
The appellant, Terrance Gary Edward Knowles, pleaded guilty to numerous offences in the District Court. A number of those offences related to crimes for which he had been committed for trial to the District Court. They included the crimes of aggravated robbery, endangering life and threatening another person with a firearm. These were grave offences which could have been expected to attract terms of imprisonment on a stand-alone basis.[1]
[1] These offences are numbered 29, 40-50 in the schedule to White J’s reasons.
The appellant was also sentenced at the same time in respect of numerous matters of a less serious nature that had been “brought up” from the Magistrates Court to be dealt with by the sentencing Judge.[2]
[2] These offences are numbered 1-28, 30-39 in the schedule to White J’s reasons.
The appellant was sentenced on 18 October 2005 to the one term of imprisonment of 16 years and 6 months with respect to all offending. A non-parole period of 10 years was fixed. In determining an appropriate sentence a reduction of 25 percent from a notional starting sentence of 22 years imprisonment was made on account of the appellant’s guilty pleas. The sentence was backdated to commence on 23 November 2004, the date on which the appellant was taken into custody. The Judge also made orders with respect to the forfeiture of a firearm and for licence disqualifications.
The sentencing Judge, when imposing the one sentence for all offending, purported to exercise powers pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
It was accepted by the DPP that the sentencing Judge erred in utilising section 18A of the Sentencing Act to sentence the appellant for all offences before the Court. The difficulty that arose under section 18A was that a term of imprisonment could not be imposed for a number of the Magistrate Court offences. There was a misuse of section 18A. The sentence imposed was beyond power.[3] It is not possible to ascertain the contribution of any one offence to the overall sentence.
[3] See generally Hermel v Police (2000) 76 SASR 336 at [9]; R v Matthew [2001] SASC 390 at [4]; Fitzgerald v Police [2000] SASC 37 at [9]; R v Jeffries [2004] SASC 188 at [50]; Coombs v Police [2001] SASC 87 at [11]; Sideridis v Police [2001] SASC 90 at [15]; cf Offe v Police (2002) 84 SASR 1 at [29].
Counsel for the appellant submitted that it was no longer a question of assessing whether the sentence imposed was manifestly excessive. As the sentence imposed was one that could not be imposed as a matter of law, the sentence had to be set aside. As a consequence, it was said that this Court should re-sentence the appellant. Counsel for the DPP accepted that this was the correct course to be adopted. This Court should in the circumstances set aside the sentence imposed and re-sentence the appellant.
The sentencing Judge described the circumstances of the appellant’s more serious offending as follows:
On 28 October 2004, in possession of that weapon, you robbed the Elizabeth Downs IGA Supermarket. The assistant was so terrified by the robbery with a pistol that she has been unable to return to part-time work when not at school. She was about 14. She remains frightened and lacks social confidence.
On 31 October 2004, you and others broke into the Plains Community Place at Davoren Park from where you broke through the wall into the adjoining One Stop Shop and stole a safe, cash, battery and tablets. Your presence was unlawful and you damaged the wall without authority.
These are the offences I have earlier referred to as being the second Information on which you have been committed to this Court for sentence.
On 15 November 2004, you robbed the Elizabeth Vale post office whilst armed with a sawn-off gun which you pointed directly at the proprietor from about half a metre. Not surprisingly, that person was frightened for her safety by your actions.
Two days later, on 17 November at about 3.00am, you forced entry to a bar and gaming establishment at Elizabeth by pointing your pistol at the evening manager and threatening to shoot him should he not cooperate. In addition, you threatened to shoot his young female assistant should she not obey your directions.
At about 10.00pm the next day, 18 November 2004, at the Munno Para Bowling Club, you again used a gun to threaten staff and rob. You were wearing a balaclava to hide your identity. In addition, you threatened several females who were present on those premises. The manager, in his victim impact statement, refers to his fear of being shot and of his present nervousness when alone in the premises at night.
From the three females you made lie on the floor, you took handbags containing money, mobile telephones and other items. This offending is the subject of counts 5, 6 and 7 on the first Information to which I referred.
After you had left these premises, you both threatened the driver of the vehicle with the gun and also fired a bullet which struck his vehicle. In addition, you otherwise also discharged that firearm at about that time, and that is referred to in counts 8, 9 and 10 of that Information.
Not surprisingly, each of the three women, the subject of your robbery, have ongoing feelings of distress, uncertainty and some hardship with personal relations, especially with strangers. This is entirely due to your behaviour. You bear personal responsibility for this personal upset.
In addition, the driver of the vehicle which you shot at as he drove also now suffers emotionally and is anxious.
Again, two days later on 20 November 2004, at about midnight, at the Pizza Hut Para Vista, when armed with a sawn-off shotgun, you threatened an employee and stole money.
In all, you stole in the vicinity of $45,000.
At about 6.00pm on 23 November 2004, you were arrested by STAR Group officers in a motel in Hindley Street. At that time, you were in possession of the cut down rifle, the subject of count 12. The weapon was loaded with a magazine and had a bullet in the breach. Since that time you have remained in custody
The above summary was accepted by the parties as accurate. It indicates the serious nature of the appellant’s offending.
The appellant’s criminal antecedents involved driving related offences. He had no prior conviction for offences of violence. The sentencing Judge summarised the personal antecedents of the appellant in the following terms:
You are now 24 years of age. Your upbringing and education were unremarkable. Your family surroundings were excellent and, it is important to note, continues. It is apparent from the reports that you have continued to have the support of your family since your arrest and that it will continue whilst you remain in prison and upon your release.
...
You left school when 17 at the commencement of year 12. You worked as a roofer for two years. By then you were in a relationship and your first child was born in 1997 when you were 16. A second was born in 2000. You married the mother of these children in October 2003. In March 2004 you separated and remain estranged. You have not seen your children for about a year. There is no prospect of reconciliation as your wife is now in a relationship with another person. She has the custody of and cares for your children.
Your drug use began soon after you left school. You were soon using amphetamine intravenously in the company of your friends. About one year later, you ceased drug use when your children were young. You did so for four years.
Then, when you were 22, both you and your wife began using amphetamine again to heighten your social experiences. You soon began to inject on a daily basis and this behaviour was the beginning of the end of your relationship and marriage.
The false confidence which you now recognise that this drug use gave you caused you to continually reject the pleas of your parents and siblings to seek help for your addiction. It is to their credit that their support for you is still maintained in the way that I have earlier mentioned.
It was this heightened amphetamine use which has led to the many matters you now face and explains the outburst of criminality. By mid-2004 your addiction required $1,500 a day. Of course, you had no legitimate income and resorted to selling your possessions and then stealing from family and friends. This was inadequate and the reports indicate that over time you became indebted to your drug supplier in the sum of about $30,000. You were threatened and required to find the money within a few days. You say threats were also made against your parents and children.
Thus, you obtained a weapon from acquaintances and your foray into very serious criminal activity began.
The sentencing Judge then commented on the psychiatric evidence:
I have already referred to your age and personal history prior to October 2004. It is the opinion of the psychiatrist that at that time, because of the quantity of amphetamine which you were then ingesting, that you were suffering from an amphetamine induced mood disorder with depressive features. In his report, however, he acknowledges that this did not interfere with your capacity to understand the nature and quality of your actions and their wrongfulness.
The parties accepted the accuracy of the above observations.
The appellant’s offending was very serious and involved a number of offences over a period of some weeks. Many of the offences were grave and would alone call for a term of imprisonment. However, it is to be observed that a number of the incidents each led to a number of discrete charges.
There was an explanation for the appellant’s course of more serious criminal conduct. As the Judge observed, amphetamine addiction led to a criminal escapade over a four week period. However, this explanation does not excuse the offending. This is a very different case from Proom.[4] In that case, the appellant had become addicted to drugs as a school child, at a time when she was a victim of the drug trade. It was in that circumstance that the view could be taken that her drug addiction was mitigatory. That is not the present case. However, the explanation proffered does have a relevance. Once the appellant is free of drug addiction, the circumstances that led to the present serious offending are unlikely to arise again. There are prospects for the appellant’s rehabilitation.
[4] R v Proom (2003) 85 SASR 120 at [43]-[44], [78]-[79].
As has been pointed out in recent authorities, there is an artificiality in seeking to impose separate penalties for each offence in circumstances such as the present proceedings. If that were the approach to be taken, the appellant would face very lengthy sentences that could only be reduced to an acceptable term by the extensive use of concurrent sentences and the application of the totality principle. Such an approach in the present circumstances would be no more than an artificial exercise. As Bleby J in Nylander[5] observed:[6]
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. …
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate.
[5] R vNylander (2003) 228 LSJS 24.
[6] R vNylander (2003) 228 LSJS 24 at [81]-[82].
The better course to be followed is for the court to consider the criminality in the offending for which imprisonment may be imposed, to assess the appellant’s overall criminal culpability, and then to impose the one sentence for that offending.
I have had regard to each of the offences that attract a maximum sentence of imprisonment, their seriousness and, to the course of conduct in which the appellant engaged. I have given consideration to the appellant’s personal antecedents. With respect to those offences I would invoke the provisions of section 18A of the Sentencing Act and impose the one sentence. I have considered the issues of accumulation and concurrency and the totality principle. Having regard to all matters, I have arrived at a notional head sentence of 16 years. I would reduce that notional sentence by one quarter on account of the pleas of guilty and impose a head sentence of imprisonment of 12 years with respect to those offences. I would fix a non-parole period of 7 years. I would backdate the sentence to commence on 23 November 2004.
With respect to the offences that do not attract a term of imprisonment as a penalty, I would enter convictions. I would impose no further penalty save for those penalties that are required to be imposed by law. In that respect I would order that the appellant be disqualified from holding or obtaining a drivers licence for a period of 2 years. Pursuant to section 34A of the Firearms Act 1977 (SA), I would order that the firearms seized on 23 November 2004 be forfeited to the Crown and that the appellant be disqualified from holding or obtaining a firearm licence until further order.
WHITE J: The appellant was sentenced in the District Court for 50 offences. Some were offences for which informations had been laid in the District Court and some were minor indictable offences and summary offences which were referred to the District Court from the Magistrates Court so that the appellant could be sentenced for all offences at the one time.
The appellant was sentenced to imprisonment for 16 years and six months, after a reduction on account of his pleas of guilty from a starting point of 22 years. The judge fixed a non-parole period of 10 years and ordered that the appellant be disqualified from holding or obtaining a driver’s licence for two years. An order for forfeiture of a firearm was also made.
The appellant appeals against this sentence on three grounds: first, that the judge erred in his application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) in that he imposed a sentence of imprisonment for all offences despite the fact that some of the offences were not punishable at all by imprisonment; secondly, that the judge failed to give adequate sentencing remarks in that he did not explain how his starting point, prior to reduction for the pleas of guilty, had been reached; and, thirdly, that both the head sentence and the non‑parole period were manifestly excessive.
In some cases, the fact that a District Court judge is exercising the powers of a magistrate to sentence as well as exercising the sentencing jurisdiction of the District Court has given rise to questions about the nature of the entitlement to appeal.[7] However, no such question was raised in this case, and it is unnecessary to consider those questions.
[7] R v Capalbo [2005] SASC 47 at [14]-[15]; (2005) 238 LSJS 245 at 246-7; R v Allen [2002] SASC 98; (2002) 81 SASR 434; R v Gibbs [2004] SASC 187; (2004) 89 SASR 30; R v Simpson [2004] SASC 307; (2004) 89 SASR 515.
As will be seen, I consider that the first ground of appeal is made out. For that reason alone, the appeal should be allowed and the sentence of the judge set aside. The appellant must be re-sentenced. That makes it unnecessary to consider grounds 2 and 3. Some of the submissions which were made in relation to Ground 3 are, however, relevant to the re-sentencing of the appellant.
Commission of the Offences
The appellant’s offending commenced with an offence of driving an unregistered vehicle, contrary to s 9 of the Motor Vehicles Act 1959 (SA) (“MVA”) on 15 September 2002, and concluded on 23 November 2004 with an offence of possession of a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA). A schedule of the offending, in chronological order, is appended to these reasons as Appendix A.
Of the 50 offences for which the appellant was sentenced, one was committed in 2002, 13 in 2003, and 36 in 2004. The offending comprised eight offences of aggravated robbery, contrary to the former s 137(2)(b) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) (all of which were committed in the period between 28 October 2004 and 20 November 2004), 12 offences of theft, contrary to s 134(1) of the CLCA, five offences of non-aggravated serious criminal trespass in non-residential premises, contrary to s 169(1) of the CLCA, one offence of endangering life, contrary to s 29(1) of the CLCA, one offence of threatening another person with a firearm, contrary to s 47A of the CLCA, one offence of discharging a firearm to cause injury or damage to property, contrary to s 51(1) of the Summary Offences Act 1953 (SA) (“SOA”), one offence of possessing a firearm without a licence, contrary to s 11(1) of the Firearms Act, two offences of threatening harm, contrary to s 19(2) of the CLCA, one offence of carrying an offensive weapon, contrary to s 15(1)(a) of the SOA, one offence of breaching a domestic violence restraining order, contrary to s 15(1) of the Domestic Violence Act 1994 (SA), one offence of producing a controlled substance, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA), two offences of unlawful damage to property, contrary to s 85(3) of the CLCA, one offence of illegal use of a motor vehicle, contrary to s 86A of the CLCA, one offence of attempted deception, contrary to s 139(a) of the CLCA, one offence of being unlawfully on premises, contrary to s 17(1) of the SOA, two offences of driving an unregistered vehicle, contrary to s 102 of the MVA, one offence of driving an uninsured vehicle, contrary to s 9 of the MVA, one offence of failing to truly answer a police officer’s questions, contrary to s 42 of the Road Traffic Act 1961 (SA) (“RTA”), one offence of driving a vehicle on a road whilst unlicensed, contrary to s 74 of the MVA, one offence of providing a false name and address, contrary to s 74A(3)(b) of the SOA, one offence of providing false information on a bail application, contrary to s 22 of the Bail Act 1985 (SA) and four offences of failing to comply with the terms of a bail agreement, contrary to s 17 of the Bail Act.
All of these offences, apart from six, were punishable, or capable of being punished, by imprisonment. The six which were not so punishable were the two offences of driving an unregistered vehicle, the offence of driving an uninsured vehicle, the offence of driving whilst unlicensed, the offence of failing to answer questions truly, and the offence of providing false information in connection with a bail application. Those offences were punishable by fine, and, in the case of the offences of illegal use of a motor vehicle and of driving an uninsured vehicle, also by licence disqualification.
Error in the Use of s 18A
Section 18A of the CLSA provides:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
In invoking s 18A to impose a single sentence, the judge said:
S 18A of the Criminal Law (Sentencing) Act allows for one sentence to be imposed in relation to all matters then before a court.
It is appropriate to use that section to encompass all present matters. There is no point in fixing individual sentences for individual offences or any series of offences committed at different times, as the cumulative total would be very high and would attract the principle of totality so as to reduce it to an appropriate level.
Contrary to the belief of the judge, s 18A could not be invoked to impose a single sentence of imprisonment for all 50 offences as some of those offences were offences for which imprisonment was not an available sentence.
In Hermel v Police[8] Duggan J said:
It is my view that, in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment. An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed. It would be quite wrong for such an offence to contribute to a composite penalty of imprisonment. The effect would be to impose a term of imprisonment for an offence punishable by a fine, albeit that the sentence of imprisonment, being a global penalty, was passed in respect of a number of offences. A sentence of imprisonment is imposed in respect of each of the offences notwithstanding that the offences are grouped together for the purpose of the composite sentence and it is impossible to identify the contribution which each of them has made to the total.[9]
Hermel has been applied in a number of subsequent authorities, including by the Full Court in R v Mathew,[10] R v Tu,[11] and in R v Capalbo,[12] as well as in several appeals determined by a single judge.
[8] [2000] SASC 34; (2000) 76 SASR 336.
[9] Ibid at [7], 337-8.
[10] [2001] SASC 390.
[11] [2001] SASC 395; (2001) 216 LSJS 298.
[12] [2005] SASC 47; (2005) 238 LSJS 245.
The effect of the error of the judge was to impose a term of imprisonment for offences which were not punishable in that way at all.
The appeal should be allowed so that this error can be corrected. Once the appeal is allowed for this purpose, the appellant must be re-sentenced.
That makes it unnecessary for this Court to consider the remaining two grounds of appeal. The Court was invited to re-sentence the appellant and to do so on the same materials which were before the judge.
The Offending
The very large number of offences for which the appellant is to be sentenced makes a summary of the circumstances of all of the offending impractical. Instead of attempting such a summary, I consider it more appropriate to refer to the more serious of the offences, and then to some particular features of that offending.
The offence of producing a controlled substance on 26 February 2003 was committed by the appellant growing five cannabis plants hydroponically at his home. The appellant had gone to great efforts to establish the hydroponic cultivation and to prevent its detection.
Between 24 November 2003 and 19 December 2003 the appellant committed five offences of theft. Each of these was a serious offence, punishable by imprisonment for a maximum period of 10 years. They involved the theft of two jet skis and trailers from a house on the River Murray, the theft of skylights, skylight kits, a cheque and cash from his employer, and the well-planned and coordinated theft, with the assistance of another, of the takings ($8653.60) of a fast food franchise as they were being taken to a bank.
On 1 March 2004, the appellant committed three offences in the course of breaking into car repair premises and stealing cash and other items. These are the offences of non-aggravated serious criminal trespass, theft of $200 in cash and unlawful damage.
On 19 and 20 June 2004, the appellant committed two further offences of theft. On these occasions the appellant went to equipment hire premises and hired expensive items of equipment (valued at $2200 and $1550 respectively). They were never returned. The appellant disposed of these and converted the proceeds to his own use.
On 27 August 2004, the appellant entered a private home at Hillbank as a trespasser. He stole jewellery, a Walkman, a camera and a mobile telephone and other items, the total value of which was about $6780. This conduct comprised the offences of non-aggravated serious criminal trespass and theft committed on that day.
Between 3 October 2004 and 6 October 2004, the appellant committed a non-aggravated serious criminal trespass at a community club at West Lakes’ Shore. He stole a computer, cash, some containers and some cheques.
On 5 October 2004, the appellant attempted to pass a stolen cheque at a credit union.
On 24 October 2004, the appellant committed non-aggravated serious criminal trespass at commercial premises at Kadina, but was interrupted before he could steal anything.
The most serious of the appellant’s offences are the aggravated robberies. The maximum penalty for aggravated robbery is life imprisonment. It is an offence for which a sentence of imprisonment of between eight and twelve years is commonly applied. As noted above, eight offences of aggravated robbery were committed in the period between 28 October 2004 and 20 November 2004. On the appellant’s account, harm to his children and family had been threatened by his drug dealer in the event that he (the appellant) did not make payment of debts owing to that drug dealer. The appellant determined on armed robbery as a means of raising the necessary money. He obtained a firearm through acquaintances.
On 28 October 2004 at about 8.10 pm, using that firearm, the appellant demanded the cash register contents at an IGA store. The cash register operator was a 14 year old girl working part time. She was terrified and complied with his demands. The appellant obtained more than $1100.
On 31 October 2004, the appellant committed the offence of non-aggravated serious criminal trespass by breaking into a Community Centre at Smithfield Plains with an unidentified companion. They stole a safe containing cash, passports and documents, as well as cigarettes and other items. It is not suggested that the firearm was used in the course of these offences.
On 15 November 2004 the appellant robbed a licensed post office. He pointed a sawn-off gun directly at the post office owner from a distance of about half a metre and insisted that he be provided with the cash register’s contents.
On 17 November 2004 at about 3am the appellant robbed some licensed premises at gun-point. He threatened to shoot two employees if they did not cooperate. They were forced to hand over a substantial sum of money.
On 18 November 2004 at about 10.00 pm the appellant robbed a bowling club. Using a gun, and wearing a balaclava, he forced an office holder in the club to open a safe and to hand him the club’s takings. In the course of this robbery, the appellant also robbed three females who were present in the club premises of their purses and handbags. Thus four of the offences of aggravated robbery for which the appellant was sentenced were committed as part of the one episode on 18 November 2004.
Finally, on 20 November 2004 at approximately 11.45pm, the appellant, again using a gun, insisted that three employees of a Pizza Hut open a safe and give him the contents.
The offence of endangering life is also a serious offence. The maximum penalty for this offence is imprisonment for a term not exceeding 15 years. This was one of seven offences committed on 18 November 2004 within the space of about 30 minutes or so. As already noted, four of those offences were aggravated robberies at a bowling club. After leaving the clubrooms, the appellant moved into a park and paddock area surrounding it. He fired off approximately five gun shots in, it would seem, no particular direction. This action constituted the offence of discharging a firearm so as to cause injury or damage to property. Then, as a club member was driving away from the clubrooms, the appellant pointed his gun at him and later fired a shot at his vehicle. The bullet pierced the wheel arch of the driver’s side front wheel. The discharge of this firearm constituted the offence of endangering life, contrary to s 29(1) of the CLCA, and the initial pointing of the gun the offence of threatening another person with a firearm, contrary to s 47A of the CLCA.
On 23 November 2004, the appellant was arrested at a motel in Hindley Street. At that time he was in possession of a cut-down rifle. The weapon was loaded with a magazine and had a bullet in the breach. His possession of the firearm comprised the offence of possession of a firearm without a licence, which is the offence numbered 50 in Appendix A.
It can be seen from Appendix A that both the frequency and the seriousness of the appellant’s offending increased markedly in the latter half of 2004. The appellant says that by October 2004 he had developed a debt of the order of $35000 to a drug dealer. A demand was made for immediate payment, which demand was accompanied by threats of violence to his children and to his parents. This lead to the increased frequency and seriousness of his offending. The proceeds of his thefts were used, he says, to pay his drug dealer. The pattern of offending in the latter part of 2004 is consistent with the actions of a desperate man and with the appellant’s account. Of course, this does not exculpate the appellant but as I have said, it helps explain the accelerated spiral of offending, particularly in October and November 2004.
I do not mean to imply from my omission from the above summary of the remaining offences that they were not serious. They should be regarded seriously. It is, however, not practical to attempt a summary, even a brief summary, of all the offending.
Drug Use and Addiction
Much of the appellant’s offending appears related to his drug use. The appellant commenced using amphetamines when he was 17 and has used them, with some interruptions, ever since. The appellant says that he commenced more regular use of amphetamines in 2003. In doing so, he built up the debt to a drug dealer to which reference has already been made.
The purpose of the offending was to obtain the means to finance his drug habit, and in later times to meet the demand for payment of his drug debt.
The significance of a drug addiction in sentencing has been discussed by this court in a number of cases including, in particular, by the Chief Justice in R v Proom.[13]In that case the Chief Justice said:
The unlawful trade in drugs, and drug addiction, with all their adverse consequences for individuals, their families and for society, are major problems in our society. To treat drug addiction as a routine mitigating circumstance when sentencing an offender would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction. To say that is not to deny that addiction may be a form of illness. But Parliament has made it clear that the courts must treat unlawful dealing in drugs severely. It would seem curious in that context to treat as a mitigating factor the fact that a crime was committed to obtain money with which to purchase drugs in breach of the law.
I accept that in some cases addiction might diminish individual moral culpability. But addicts do not lose the ability to make choices, and addicts remain legally responsible for their conduct. Moral culpability is not the only relevant consideration. Deterrence through punishment may be a blunt remedy, but courts must do what they can to deter addicts from using crime to sustain their addiction. Society is entitled to be protected from persons who commit crime to fund their addiction.
The proposition that addiction will always or generally be a mitigating factor confronts an obvious question. For how long does addiction operate as a mitigating factor? Is it a mitigating factor for the first offence, for the first few offences, or always? Can an addicted offender continue to expect the lesser sentence? Surely not. To the contrary, an addict who is a repeat offender may be entitled to a lesser degree of leniency simply because of the repeated offending, and because the pattern of conduct gives the Court no choice but to emphasise deterrence, recognising the bluntness of that response.[14]
[13] [2003] SASC 88; (2003) 85 SASR 120.
[14] Ibid at [47]-[49], 130.
The authorities suggest that the appellant’s drug addiction cannot, in the circumstances of this case, be regarded as a significant mitigating factor. In October 2004, faced with threats to his own family, the appellant obtained a firearm and embarked upon a course of significant criminal conduct. In doing so he threatened numerous persons, being apparently indifferent to the effect of his conduct on them and their families.
However, the drug addiction does help explain the conduct. It excludes other explanations involving greater moral culpability. Further, the evidence concerning the plaintiff’s overcoming of his addiction is a favourable factor for his future.
Effect on the Victims
The sentencing judge had several victim impact statements. These show that the victims of the aggravated robberies in particular were traumatised in an understandable way by the appellant’s conduct. As noted above, one of the victims was a 14 year old girl. Her victim impact statement shows the significant emotional effects of the robbery upon her. The other statements show that the victims have been psychologically affected by their experience, in particular by having been put in fear for their lives. They report ongoing feelings of distress, uncertainty, loss of confidence and mistrust of strangers. Some of the victims have required medical and psychological treatment.
Appellant’s Antecedents and Prospects of Rehabilitation
The appellant was born in September 1981 and is now aged 25. He was educated to year 12 level. In 1997 when he was sixteen he and his partner had their first child. A second child was born in 2000. Although he and his partner married in October 2003, they separated in March 2004. A principal cause of the marital break up was apparently the appellant’s amphetamine usage, although there is psychiatric opinion, to which reference will be made shortly, indicating that the relationship breakdown may also have contributed to the amphetamine usage.
On leaving school, the appellant obtained employment in the roofing industry. He was engaged for approximately 2½ years in total in that industry. It seems that apart from that employment, the appellant has been unemployed. Since being in custody, the appellant has successfully completed a number of employment skills training courses.
The appellant has had several previous court appearances. In the main however they appear to have been for traffic and motor vehicle offences. Apart from two offences of larceny while a child, the appellant does not have previous court appearances for offences of dishonesty or of violence.
The appellant has been in custody continuously since his arrest on 23 November 2004. Prior to that date he had also spent some short periods in custody for the offences for which he is to be sentenced, namely, from 29 December 2003 to 9 January 2004 and from 3 November 2004 to 9 November 2004.
Dr Begg carried out a psychiatric assessment of the appellant in June 2005 in the Adelaide Remand Centre. He obtained a history of the appellant’s extensive amphetamine usage. He attributed the appellant’s amphetamine dependence in part to the breakdown of his relationship with his wife. Whilst in the Remand Centre, the appellant has not had access to amphetamines. It is said that his addiction is now under control. Both Dr Begg and the author of a pre‑sentence report consider that the appellant now has some insight into the effects of his amphetamine usage.
The contents of Dr Begg’s psychiatric report and of the pre-sentence report indicate the appellant’s insight into his offending and its causes. It is also quite significant that the appellant now appreciates the harm he has caused to the victims of his offending, in particular, to the victims of the armed robberies. He has expressed his sorrow for the suffering he has caused. The appellant is remorseful and there is no reason to doubt the genuineness of that remorse.
Finally, Dr Begg and the author of the pre-sentence report consider the prospects of a successful rehabilitation to be good. I note that the sentencing judge also considered the appellant’s rehabilitation prospects to be positive.
Re-Sentencing
It is appropriate to apply s 18A of the CLSA to sentence the appellant in relation to all offences apart from those numbered 1, 10, 11, 12, 13 and 35 in Appendix A.
This is a case in which it would be pointless to consider notional individual sentences for each offence and then proceed to consider those which should be served concurrently and those which should be ordered to be served cumulatively.[15] If that was done, an aggregate sentence which is crushing would obviously be reached, and it would have to be reduced substantially having regard to the totality principle.
[15] R v Symonds [1999] SASC 217 at [22].
Instead, account is to be taken of the principle of totality in fixing the sentence pursuant to s 18A in the way discussed by the Chief Justice in R v Bennett:[16]
The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent …
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principle should usually be called for.[17]
[16] [2005] SASC 55.
[17] Ibid at [15]-[16]. See also R v BRWK [2005] SASC 84; (2005) 91 SASR 200 at [16]-[17] per Doyle CJ, at [24]-[25] per Vanstone J; R v Kench [2005] SASC 85 at [42] per Doyle CJ; (2005) 238 LSJS 482; R v E, AD [2005] SASC 332 at [36] per Doyle CJ; (2005) 93 SASR 20; R v Slater [2005] SASC 423 at [18] per Debelle J; R v Waugh [2005] SASC 470 at [40]; (2005) 93 SASR 274 at 283.
Having regard to the serious nature of the appellant’s offending which has already been summarised, the number of offences, the persistence of the appellant in criminal behaviour, and to the considerations personal to the appellant to which reference has already been made, an appropriate starting point for a s 18A sentence is imprisonment for 19 years. That should be reduced to 14 years and three months on account of the appellant’s guilty pleas. This is lower than the sentence imposed by the sentencing judge. That reflects in part that the s 18A sentence is being imposed in respect of fewer offences. More importantly, however, I have taken account of the fact that some of the more serious offences for which the appellant is to be sentenced were committed as part of one incursion into criminal activity, on 18 November 2004, and were committed within a space of about 30 minutes.
Having regard to the favourable prospects for a successful rehabilitation, I would fix a non-parole period of nine years. Both the sentence and the non-parole period should be taken to have commenced on the day the appellant was taken into custody, namely on 23 November 2004.
The Remaining Offences
The remaining six offences are punishable by fines. There is a question as to whether it is appropriate for fines to be imposed. Section 13 of the CLSA provides:
(1)The court must not make an order requiring a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(1a)In considering whether the defendant would be able to comply with the order, the court should have regard to the fact that defendants may enter into arrangements under Division 3 of Part 9 for an extension of time to pay pecuniary sums or for payment by instalments.
(2)The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
The Court has not received explicit evidence about the appellant’s current means. However, having regard to the offending and the reasons for it, the content of the pre-sentence report and the period that the appellant has already spent in custody and will continue to spend in custody, it is reasonable to infer that the appellant would be unable to comply with an order for payment of fines. This means, in my opinion, that fines should not be imposed. Instead, and subject to the issue of licence disqualification, these offences should be dealt with by the recording of convictions but without any further penalty.
Licence Disqualification
The imposition of a licence disqualification for a period of 12 months is mandatory in the case of the offence of illegal use of a motor vehicle contrary to s 86A of the CLCA. In the case of the offence of driving an uninsured vehicle contrary to s 102 of the MVA, licence disqualification for a period not exceeding 12 months is required.
Having regard to the appellant’s previous traffic offences, I would impose a licence disqualification of six months for the s 102 MVA offence. The periods of licence disqualification should be served cumulatively.
There is a question as to the date upon which these periods of licence disqualification should commence. If they commence immediately, then they represent, in effect, no additional penalty because the appellant will be incarcerated for the whole of the period of disqualification. On the other hand, there are difficulties about identifying a suitable date in the future upon which the disqualification should commence. Some of these difficulties were discussed in R v Capalbo.[18] Further, there would be a degree of oppression in ordering that the disqualification commence after the appellant has completed a lengthy term of imprisonment. The prospects for a successful rehabilitation in the appellant’s case are said to be good. It is to be hoped that the appellant’s rehabilitation will have been substantially achieved by the time of his discharge from prison. It would be oppressive, and possibly counter-productive to the appellant’s further rehabilitation, to require him at that time to commence serving another period of penalty. It would be preferable to allow the appellant, subject to whatever conditions may be imposed as a term of parole (if granted) to commence the service of his parole without being subject to further restrictions in respect of offences committed many years before that parole.[19]
[18] [2005] SASC 47 at [82]-[88]; (2005) 238 LSJS 245 at 259.
[19] Cf R v Capalbo [2005] SASC 47 at [91]; (2005) 238 LSJS 245 at 280.
For this reason, I would order that the period of licence disqualification of 12 months for the s 86A offence commence forthwith and that the licence disqualification in respect of the s 102 offence commence immediately upon the expiry of that period of disqualification.
Summary
In my opinion, the appeal should be allowed. The sentence of the sentencing judge should be set aside.
In relation to all offences other than those numbered 1, 10, 11, 12, 13 and 35 in Appendix A to these reasons, the appellant should be sentenced to imprisonment for 14 years and three months. I would fix a non-parole period of nine years.
In relation to each of the offences numbered 1, 10, 11, 12, 13 and 35 in Appendix A, I would enter convictions and, apart from the question of licence disqualification, would not impose any further penalty. In relation to the offences numbered 18 and 12, I would impose licence disqualifications of 12 months and six months respectively and would direct that those periods of disqualification be served cumulatively but with the first period of disqualification to commence forthwith.
I would order, pursuant to s 34A of the Firearms Act 1977 (SA), that the firearm seized be forfeited to the Crown, and that the appellant be disqualified from holding or obtaining a firearm licence until further order.
A P P E N D I X A
SCHEDULE OF OFFENCES
Offence Number Date of
Offence
Offence Statutory Provision Maximum Penalty 1 15.9.02 Drive unregistered Motor Vehicles Act, s 9 2 x registration, or $750, whichever is greater 2 26.2.03 Produce controlled substance Controlled Substances Act, s 32(1)(a) Fine of $2000, or imprisonment for 2 years or both 3 24.6.03 – 14.7.03 Larceny CLCA, s 134(1) 10 years imprisonment 4 24.11.03 – 5.12.03 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 5 3.12.03 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 6 5.12.03 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 7 5.12.03 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 8 14.12.03 Carry offensive weapon SOA, s 15(1)(a) Fine of $2500 or 6 months imprisonment 9 19.12.03 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 10 28.12.03 Fail to truly answer Road Traffic Act, s 42 Fine of $1250 11 28.12.03 Drive unregistered Motor Vehicles Act, s 9 2 x registration, or $750, whichever is greater 12 28.12.03 Drive uninsured Motor Vehicles Act, s 102 Fine of $2500 and 12 months disqualification 13 28.12.03 Drive unlicensed MotorVehicles Act, s 74 Fine of $1250 14 28.12.03 Fail to comply with bail agreement Bail Act, s 17 Fine of $10000 or 2 years imprisonment 15 1.3.04 Non-Aggravated Serious Criminal Trespass CLCA, s 169(1) 10 years imprisonment 16 1.3.04 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 17 1.3.04 Damaging property CLCA, s 85(3) 2 years imprisonment 18 19.6.04 Drive or use motor vehicle without owner’s consent CLCA, s 86A 2 years imprisonment max. 4 years 19 19.6.04 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 20 20.6.04 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 21 1.7.04 Fail to comply with bail agreement Bail Act, s 17 Fine of $10000 or 2 years imprisonment 22 27.8.04 Non-aggravated serious criminal trespass CLCA, s 169(1) 10 years imprisonment 23 27.8.04 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 24 11.9.04 Threaten harm CLCA, s 19(2) 5 years imprisonment 25 3.10.04 – 6.10.04 Non-aggravated serious criminal trespass CLCA, s 169(1) 10 years imprisonment 26 3.10.04 – 6.10.04 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 27 5.10.04 Attempted deceive another to benefit self or third person CLCA, s 139(a) (and s 270A) 6 years, 8 months imprisonment 28 24.10.04 Non-aggravated serious criminal trespass CLCA, s 169(1) 10 years imprisonment 29 28.10.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 30 31.10.04 Unlawfully on premises SOA, s 17(1) 2 years imprisonment 31 31.10.04 Damaging property CLCA, s 85(3) 2 years imprisonment 32 31.10.04 Aggravated serious criminal trespass CLCA, s 169(1) 20 years imprisonment 33 31.10.04 Dishonestly take property without owner’s consent CLCA, s 134(1) 10 years imprisonment 34 1.11.04 False name and address SOA, s 74A(3)(b) Fine of $1250 or 3 months imprisonment 35 1.11.04 Provide false information on a bail application Bail Act, s 22 Fine of $1250 36 9.11.04 Threaten harm CLCA, s 19(2) 5 years imprisonment 37 9.11.04 Breach domestic violence restraining order Domestic Violence Act, s 15(1) 2 years imprisonment 38 14.11.04 Fail to comply with bail agreement Bail Act, s 17 Fine of $10000 or 2 years imprisonment 39 14.11.04 Fail to comply with bail agreement Bail Act, s 17 Fine of $10000 or 2 years imprisonment 40 15.11.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 41 17.11.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 42 18.11.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 43 18.11.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 44 18.11.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 45 18.11.04 Aggravated robbery with offensive weapon CLCA, s 137(2)(b) Life imprisonment 46 18.11.04 Endangering life CLCA, s 29(1) 15 years imprisonment 47 18.11.04 Discharge firearm to cause injury or damage to property SOA, s 51(1) Fine of $10000 or 2 years imprisonment 48 18.11.04 Threaten another person with a firearm CLCA, s 47A Fine of $15000 or 4 years imprisonment 49 20.11.04 Aggravated robbery with an offensive weapon CLCA, s 137(2)(b) Life imprisonment 50 23.11.04 Possess a firearm without a licence Firearms Act, s 11(1) Fine of $50000 or 10 years imprisonment
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