R v Lumsden

[2020] SASCFC 3

Supreme Court of South Australia

(Court of Criminal Appeal)

R v LUMSDEN

[2020] SASCFC 3

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

30 January 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

Application by the Director of Public Prosecutions for permission to appeal against sentence imposed by a Judge in the District Court – where the appellant pleaded guilty to a number of offences including attempted aggravated robbery – whether the sentence imposed was manifestly inadequate in respect of the attempted aggravated robbery.

Held (per Bampton J, Peek and Lovell JJ agreeing): Permission to appeal granted – appeal allowed – the sentence imposed by the Judge was manifestly inadequate – sentence is set aside and the appellant is resentenced.

Sentencing Act 2017 (SA) s 26, referred to.

R v Place (2001) 81 SASR 395; R v Newton (2002) 128 A Crim R 185; R v Nemer (2003) 87 SASR 168; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212, considered.

R v LUMSDEN

[2020] SASCFC 3

Court of Criminal Appeal:  Peek, Bampton and Lovell JJ

1. PEEK J:       I agree with the orders proposed by Bampton J and with her reasons.

2. BAMPTON J:        The Director of Public Prosecutions (“the Director”) seeks permission to appeal the sentence imposed on Bradley Caleb Lumsden for an attempted aggravated robbery, contending that the sentence imposed from a starting point of six months is a manifestly inadequate penalty.

Background

1. On 22 April 2016, Mr Lumsden was sentenced for two counts of trafficking in a controlled drug.  The sentence of one year and nine months’ imprisonment with a non-parole of nine months was suspended upon Mr Lumsden entering into a bond to be of good behaviour for a period of three years (“the bond”).  Mr Lumsden breached the bond by committing property damage on 2 March 2018 and 14 June 2018, disorderly behaviour and carrying an offensive weapon on 14 June 2018, two counts of assault on 25 July 2018, failing to comply with a bail agreement entered into 10 August 2018 and committing attempted aggravated robbery on 10 April 2019 (“the offending”).

The circumstances of the offending

Two counts of assault

1. At a quiz night at the Village Tavern in Golden Grove on 25 July 2017, Mr Lumsden and another male assaulted two adult brothers in the bathroom.  Mr Lumsden recognised one of the brothers as a person who had bullied him at school.  Mr Lumsden and his male associate proceeded to punch and kick the pair before they escaped.

First property damage

1. Following an argument with his sister on 2 March 2018, Mr Lumsden kicked and dented a door of his sister’s car.

Disorderly behaviour and carrying an offensive weapon

1. On 14 June 2018, Mr Lumsden was questioned by a checkout assistant at Woolworths Tea Tree Plaza regarding a bottle of water he was suspected of stealing.  Mr Lumsden responded by raising his voice and becoming aggressive.  As he protested, Mr Lumsden emptied out his bum bag, revealing a black metal pole with tape wrapped around one end.  Shortly after leaving the supermarket, Mr Lumsden was arrested by police and charged with disorderly behaviour and carrying an offensive weapon.

Second property damage

1. The second property damage offence occurred at night on 14 June 2019 when a neighbour observed Mr Lumsden walking in the middle of their street, yelling and shouting.  Mr Lumsden jumped on the neighbour’s vehicle causing damage to the bonnet and bumper.

Attempted aggravated robbery

1. The victim was walking along Golden Grove Road to Hope Chapel at approximately 9.15 pm on 10 April 2019 when he was approached and stopped by Mr Lumsden and another male who were walking in the opposite direction.  The victim was asked whether he had any spare change.  When the victim replied that he did not have any change or his wallet on him, the unidentified male continued walking.  Mr Lumsden remained with the victim and produced a syringe from his pocket, took the cap off, directed it at the victim and said, “do you want to get fucking stabbed with a syringe cunt”.  The victim repeated that he did not want any trouble and that he had nothing of value on him.

2. As the victim backed away from Mr Lumsden towards the Golden Grove Road, Mr Lumsden followed him and punched him twice to the head with a clenched fist and kicked his left leg.  This caused significant pain to the victim and left his right ear ringing.  The victim stumbled into the middle of the road.  Mr Lumsden followed him until the unidentified male called out to Mr Lumsden from down the road, at which point Mr Lumsden left the victim saying, “I know where you live, you live with Connor.  I’ll be round to your house later”.

3. The victim then sought refuge at Hope Chapel where he informed the pastors what had happened.  As he was speaking with the pastors, Mr Lumsden returned with the other male and shouted at the victim and the pastors.

4. Mr Lumsden was arrested later that night.  The syringe was found approximately 10 metres from where he was arrested.  The syringe was inside a home-made sheath, made from a blade and tape. 

5. The circumstance of aggravation of the attempted robbery is that Mr Lumsden used or threatened to use an offensive weapon when committing the offence.

Mr Lumsden’s personal circumstances and offending history

1. Mr Lumsden’s only conviction prior to the trafficking conviction in 2016 was a conviction for offences under the Motor Vehicles Act in 2012.  Following the trafficking conviction, he was convicted in the Magistrates Court of offending under the Road Traffic Act and Motor Vehicles Act, and minor drug offending.

2. The forensic psychologist, Louisa Hackett, assessed Mr Lumsden on two occasions and prepared reports dated 19 July 2018 and 30 June 2019 following her assessments.

3. Mr Lumsden is now aged 23.  His parents separated when he was aged four and his mother began a relationship with his step-father.  Mr Lumsden completed year nine at school before attending flexible learning options programs run by Mission Australia for years 10 and 11.

4. Mr Lumsden reported to Ms Hackett that his mother had always struggled with her mental health.  Mr Lumsden believed that his mother was diagnosed with personality disorder and bipolar disorder when he was about 15.  He recalled that she was repeatedly detained under the Mental Health Act and admitted to Woodley House at Modbury Hospital.  Mr Lumsden also reported that his elder sister took her own life when he was 12, leaving a three-year-old son.  Mr Lumsden’s mother’s mental health deteriorated even further after her daughter’s death as she blamed herself for the death.  His mother thereafter made several suicide attempts.  Mr Lumsden described one such attempt to Ms Hackett which occurred whilst he was on home detention bail.  His mother had taken 30 Valium tablets and was holding two razor blades, threatening to hurt herself.  In an attempt to stop her, Mr Lumsden attempted to grab the razor blades but his mother cut herself over and over.  Mr Lumsden tearfully described to Ms Hackett that he was screaming and pleading with his mother to stop, but she threw the razor blades in her mouth and chewed them, telling Mr Lumsden that it was his fault.  He described a lot of blood left at his home after his mother was taken by ambulance and that a next-door neighbour assisted in cleaning it up. 

5. After entering in the bond following his conviction for trafficking in April 2016, Mr Lumsden started to make positive changes.  He was working and did not use drugs for about a year.  He completed courses in fitness and nutrition and obtained employment as a personal trainer at the Goodlife Health Club in North Adelaide.  He moved in to live with his father.  Tragically, a few weeks later his father was beaten to death in June 2016 in Western Australia.

6. In July 2017, Mr Lumsden’s step-father died suddenly of meningococcal B‑strain.  His mother then tried to kill herself again, and he felt guilty that he did not prevent her from attempting suicide.  Mr Lumsden said that he found his mother’s car in a car park with dark blood stains covering the front seat of the vehicle, before receiving a phone call informing him that his mother was in hospital.  After this suicide attempt, his mother contracted meningococcal B‑strain and was placed on life support at the Lyell McEwin Hospital.

7. Mr Lumsden began losing money working as a personal trainer as he had to pay facility hire fees to the Goodlife Health Club before he could claim earnings from client payments.  When his mother became critically ill, he found it “mentally way too much” and he began using drugs again and ceased working at the gym in September 2017.

8. Mr Lumsden told Ms Hackett that he suffers anxiety and depression and that he had previously attempted to self-harm.  During his first assessment with Ms Hackett, Mr Lumsden said that he first smoked cannabis at age 15 and that he believed that smoking was beneficial for him, in that it helped his mental health.  He said that he first tried methylamphetamine aged 17 or 18.  He also said that he believed that methylamphetamine helped with the distress he experienced due to his traumatic grief.

9. During his second assessment with Ms Hackett, Mr Lumsden reported that he was heavily intoxicated with alcohol on the night of the attempted aggravated robbery.  He said that he was flat broke and he had been trying to get on to Centrelink for two months.  He said that he had stopped using methylamphetamine but was drinking heavily and, after making a syringe into a weapon, he found himself walking the streets of Greenwith around 10.00 pm.  He explained that he used needles to administer steroids as he was trying to get back into training.  He said that in committing the offending he was trying to get money from a random person, just someone he passed on the street. 

10. Ms Hackett reported that Mr Lumsden suffers from post-traumatic stress disorder, borderline personality disorder, and polysubstance use disorder.  She was of the opinion that intensive evidence based treatment for each of these conditions concurrently would give him the greatest chance of being able to attain symptom improvement and a far more functional and rewarding life. 

11. Ms Hackett also considered that Mr Lumsden’s polysubstance use disorder is directly related to his mental health problems and his substance use is unlikely to resolve without targeted treatment of his underlying mental health conditions.  Ms Hackett was of the view that his risk of offending remains high.  Ms Hackett did note that during her second assessment Mr Lumsden appeared to have some cognitive shift towards a change regarding his illicit drug use, compared to when she first spoke with him in July 2018.  She also noted that Mr Lumsden demonstrated some insight and a degree of cognitive and affective empathy towards the victim of his offending.  Ms Hackett was of the view that Mr Lumsden would be a good candidate to obtain therapeutic benefit from group based criminogenic programs which target violent behaviour specifically, rather than just offending or substance misuse programs.

The sentence

1. Mr Lumsden pleaded guilty to all offending.  He also acknowledged that he had breached the bond by reoffending, returning urine samples that tested positive to drugs, and by failing to be under the supervision of his Community Corrections Officer.

2. A District Court Judge found the breaches of the bond proved, ordered that the bond be revoked and that Mr Lumsden serve the sentence of imprisonment underlying the bond of one year and nine months’ imprisonment with a non‑parole of nine months (“the revoked suspended sentence”).

3. Mr Lumsden was entitled to, on account of his guilty plea, up to a 40 per cent reduction of the sentence that would otherwise have been imposed for the attempted aggravated robbery. He was entitled to a reduction of up to 30 per cent for all other offending.

4. Mr Lumsden was convicted without further penalty in respect of his failure to comply with the bail agreement, the disorderly behaviour offence, and carry an offensive weapon offence.

5. For the two assaults committed on 25 July 2017, his Honour imposed one sentence for both offences pursuant to s 26 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) starting at four months reduced by 30 per cent to two months, three weeks and four days.

6. As to the property damage committed on 4 March 2018, his Honour started with a sentence of six weeks reduced by 30 per cent to four weeks and two days.  As to property damage committed on 1 June 2018, his Honour started with a penalty of four weeks reduced to two weeks and six days. 

7. With respect to the attempted robbery, his Honour started with a sentence of six months reduced by 30 per cent to four months and one week imprisonment.

8. His Honour ordered that the sentences be served concurrently, but cumulatively on the revoked suspended sentence.  That left a resulting head sentence of two years, one month, and one week.  The Judge extended the non‑parole period by four months and one week, resulting in a non-parole period of one year, one month, and one week.

Permission to appeal

1. The Director submitted that the head sentence imposed with respect to the attempted aggravated robbery is so far below the appropriate standard that to allow it to remain would shake the public confidence in the administration of justice.

2. The Director argued that it is clear that the offence of attempted aggravated robbery is an inherently serious charge.  The maximum penalty of 12 years for an attempt and life imprisonment for a completed offence reflects Parliament’s view of the gravity of the offence.  It was submitted that Mr Lumsden’s offending could not be described as trivial; it involved physical force, verbal aggression and the use of a syringe designed to instil significant fear in an unsuspecting member of the public.

3. The Director contended that persons in the position of the victim of this offending and the community generally are entitled to look to the courts for protection and are entitled to expect that punishments will be imposed that operate as an effective deterrent.  It was submitted that this was particularly so in light of the undisputed evidence of Ms Hackett, who considered that Mr Lumsden’s risk of reoffending remained high. 

4. The Director relied on the decision in R v Place, which provides guidance as to the appropriate sentencing range for offences of armed robberies in the order of six to eight years’ imprisonment.  The Court in Place elaborated on the application of the standard to situations including “street offence robberies” identified in R v Newton.  In R v Newton the offender, who pleaded guilty to a charge of armed robbery, approached the victim asking for a cigarette after watching her withdraw money from an ATM.  The offender then demanded money and grabbed the victim by the shoulder.  The victim felt a prick to her lower right abdomen.  The offender said that she had a syringe and that she had AIDS.  An amount of $80 was stolen.  It transpired that the offender did not have AIDS, but had hepatitis C which was dormant at the time of the offending.  Leave to the Director to appeal was refused, and the sentence of three years and six months’ imprisonment, with a non-parole period of nine months, was confirmed.

5. The Court in Place made the following observation about the circumstances of the armed robbery in Newton which:

   … involved a vulnerable victim who was no less vulnerable than attendants at premises such as pharmacies and service stations.  The victim was subjected to a threat with a dangerous weapon.  From the perspective of the victim, the use of the syringe involved a threat of violence that was no less dangerous than a threat with a knife.  General deterrence and the need to protect the public were of particular importance.  The offender was a heroin addict who was desperate for money in order to purchase heroin. In our opinion, the type of offending in Newton should not be regarded as intrinsically less serious than the broadly described type of offending in respect of which the standard of penalty has been applied by previous decisions of this Court.

The Director submitted that the above passage highlights that it is the threat of violence on a vulnerable witness which gives rise to the severity of an armed robbery offence.

1. The Director pointed out that the vulnerability of the victim of Mr Lumsden’s offending who was walking alone late at night is significant.  The offending clearly involved some degree of planning as Mr Lumsden had melted the tip of the syringe to fashion it into a weapon.  He employed violence by threatening the victim with a syringe, before punching and kicking him. 

2. The Director submitted that it is clear that Mr Lumsden’s offending was motivated by a desire for personal gain.  The fact that he was intoxicated is not an uncommon excuse for this type of offending and it is of relevance that the attempt only ceased after an unidentified male called out to Mr Lumsden and the attempt was frustrated by the fact that the victim did not have any money.  The Director submitted that offending of this nature, driven by greed and incorporating violence, warrants a strong deterrent sentence.

3. Further, it was submitted that Mr Lumsden’s personal circumstances do not justify the degree of leniency reflected by the six-month sentence imposed.  This was particularly so in circumstances where he had previously been afforded significant leniency by the Court, by being given a suspended sentence for unrelated offending in 2016 and further being excused on two separate occasions for breaching the bond.  It was argued that, in such circumstances, the need for personal and general deterrence was of utmost importance. 

4. The Director pointed out that the physical attack on the victim by Mr Lumsden was not referred to in the sentencing remarks.

5. Finally, the Director referred to a number of decisions of this Court concerning a variety of robbery offences, submitting that the range of sentences remains well above that of six months.

Mr Lumsden’s submissions

1. Mr Lumsden contended that when all of the circumstances are taken into account and not merely the objective nature of the offending, the sentence was within the discretion of the sentencing Judge.  In the alternative, it was submitted that even if the sentence is considered too low, that it is not sufficiently below the appropriate standard to grant permission.  It was argued that the Director’s submissions relied heavily upon the objective facts of the offending, but the nature of the offending is only one of the many considerations that make up the sentencing process. 

2. It was pointed out that the Judge had reports from a forensic psychologist detailing Mr Lumsden’s exceptionally difficult personal circumstances which were supplemented by his counsel’s submissions.  It was submitted that Mr Lumsden:

   1   had suffered significant loss during his childhood;

   2   had significant mental health issues;

   3   had commenced significant rehabilitation before the loss of his father, who was killed by two men; and

   4   does have some insight into his mental illness.

3. It was argued that the Judge was entitled to take these matters into account when considering both the nature of the offending and the appropriate penalty. 

4. It was submitted that the attempted aggravated robbery was committed by Mr Lumsden to obtain money for a bus ticket, in circumstances where he was intoxicated, desperate, and suffering as a result of his mental health issues.  It was also submitted that Mr Lumsden’s personal circumstances are such that the imposition of a longer term of imprisonment now would be detrimental to his rehabilitation.

1. Finally, it was submitted that there are two further considerations that support Mr Lumsden’s contention that the sentence imposed was both within the discretion and is not manifestly inadequate, namely:

   1.  The sentencing discount allowed was 30 per cent when it was agreed that the available discount was 40 per cent and the Judge gave no reasons for reducing the sentence by only 30 per cent.  It was suggested that the sentencing Judge reduced the discount to reflect the circumstances of the offending.

   2.  The cumulative period of imprisonment of the head sentence of four months and one week was also the period by which the non-parole period was extended, thereby increasing the ratio of the non-parole period to the head sentence substantially.

Analysis

1. The principles governing prosecution appeals against sentence are well‑established.  It is only in rare and exceptional cases that will the Court grant permission.  Permission will only be granted if necessary to enable the Court to establish and maintain adequate standards of punishment, or if the sentence imposed is so far below the appropriate standards as to shake public confidence in the administration of justice.  Both considerations are relevant in this application.

2. The Judge, in describing the attempted aggravated robbery, said:

   I will, however, outline the circumstances of the offending relating to the charge of attempted aggravated robbery, as this is the most serious offending.

   You were drinking at home and in a negative frame of mind.  You wanted to visit your girlfriend’s house, however you had no means of transport.  You had no money and you were frustrated.  You armed yourself with a plastic syringe which you had melted into a tip and approached a stranger and attempted to rob him.  You say you only had the syringe out momentarily and walked away from the victim after a short altercation.  You did not take any property from the victim.

The remarks are silent on the physical attack and the threat to stab the victim.  Mr Lumsden’s attack on the victim was far more than “a short altercation”.  An altercation connotes a squabble or a quarrel.  As such, the Judge misstated the facts and this Court cannot be satisfied that proper regard was had to the gravity of the offending in the exercise of the sentencing discretion. 

1. Mr Lumsden’s offending was serious and the use of a weapon, his direct threat of harm to stab the victim, his physical assault on the victim, the fact that he was on bail, the fact that he was on a suspended sentence bond and his previous breaches of that bond, all meant that the offending was aggravated.

2. The commission of the aggravated attempted robbery demonstrates an escalation in Mr Lumsden’s violent offending.  I am of the view that the sentence of six months is so disproportionate as to the gravity of the offending it fails to reflect the need for general and personal deterrence and the safety of the community.  As such it should not be allowed to stand and the Court is justified in intervening to ensure such principles of deterrence and community safety are adequately reflected in the sentence.

Conclusion

1. I would:

   1.  Grant permission to appeal to the Director of Public Prosecutions.

   2.  Allow the appeal.

   3.  Set aside the sentence imposed in the District Court for the attempted aggravated robbery of imprisonment for four months and one week.

   4.  Resentence Mr Lumsden for the attempted aggravated robbery to three years and six months’ imprisonment reduced by 40 per cent on account to the guilty plea to two years, one month, and seven days to be served concurrently with the sentence of four months, two weeks, and five days.

   5.  Order that the sentence of two years, one month, and seven days is to be served cumulatively on the revoked suspended sentence of one year and nine months leaving a head sentence of three years, 10 months, and seven days.

   6.  Having regard to Ms Hackett’s report, Mr Lumsden requires intensive targeted treatment of his significant mental health conditions in order to address his substance abuse.  It is also of note that Mr Lumsden has demonstrated some insight into his drug use and a degree of cognitive and affective empathy towards the victim of his offending.  The community and Mr Lumsden would benefit from Mr Lumsden being under a lengthy period of supervision in the community on parole to assist him in accessing the psychological/psychiatric help he desperately needs.  Accordingly, I would review and extend the non‑parole to 20 months.

   7.  Deem the sentence to have commenced on 12 April 2019.

2. LOVELL J: I agree with the reasons of Bampton J and the orders she proposes.