R v Lundberg - [2013] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LUNDBERG
[2013] SASCFC 43
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
20 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
Appeal against sentence - appellant found guilty of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of false imprisonment - appellant robbed Mannum branch of BankSA of $120,775 and falsely imprisoned an employee of the bank by restraining her with ties and electrical tape - appellant was sentenced to a term of imprisonment of nine years and 10 months with a non-parole period of five years and 10 months - sentence was backdated to 30 March 2012.
Appellant submits that the sentence was manifestly excessive both in respect of the head sentence and the non-parole period - submits that the robbery was less serious than aggravated robberies committed against banks and bank employees by offenders armed with offensive weapons.
Appellant submits that the sentencing judge erred in backdating the commencement of the sentence to 30 March 2012 - sentence should have been backdated to 13 March 2012.
Held: Appeal allowed – head sentence is manifestly excessive – sentence set aside – new sentence of seven years and 10 months with a non-parole period of four years and eight months imposed – commencement date of 13 March 2012 fixed in respect to the term of imprisonment and the non-parole period.
Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; R v Place (2002) 81 SASR 395, discussed.
R v Khim [2002] SASC 343; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103, considered.

R v LUNDBERG
[2013] SASCFC 43

KOURAKIS CJ: I would allow the appeal for the reasons given by Stanley J and join in the orders proposed by him. I make some brief additional remarks about the relative seriousness of the appellant’s offending and the robberies of the kind considered in R v Place[1].
[1] (2002) 81 SASR 395.
First, however much the appellant may have subjectively hoped that his crime could be achieved without the need to inflict serious physical harm, to seize a bank and subdue the employee or employees on duty is, speaking generally, relatively more serious than the quick raids considered in R v Place. Of course much will depend on whether a weapon is used and the degree of violence actually inflicted in either case.
Secondly, even though robberies of this kind are not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lundberg

Details

AGLC: R v Lundberg [2013] SASCFC 43
Case: [2013] SASCFC 43
Decision Date: 20 May 2013

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, R v Lundberg, by the Supreme Court of South Australia. The appellant had been found guilty of aggravated robbery and false imprisonment, having stolen $120,775 from a BankSA branch and restrained an employee. The sentencing judge imposed a head sentence of nine years and 10 months imprisonment, with a non-parole period of five years and 10 months, backdated to 30 March 2012. The appellant argued that this sentence was manifestly excessive.

The central legal issue before the Court of Criminal Appeal was whether the head sentence and non-parole period imposed were manifestly excessive, considering the nature and circumstances of the offence and the offender. The appellant contended that the robbery was less serious than aggravated robberies typically involving offensive weapons against bank employees.

The Court of Criminal Appeal, applying the principles established in *R v Place*, considered the prevalence of armed robberies on vulnerable persons, often committed by those with drug or alcohol addictions. While acknowledging the importance of general deterrence and public protection, the Court distinguished the present case from the "standard penalty" range of six to eight years for such offences. The Court found that the appellant's robbery was well-planned, premeditated, and involved the exploitation of inside knowledge, distinguishing it from crimes of desperation. Although the robbery involved violence and a frightening period of false imprisonment, and a significant sum remained unrecovered with no remorse shown, the Court determined that the original head sentence of nearly 10 years was manifestly excessive for this type of offence.

Consequently, the appeal was allowed. The original sentence was set aside, and a new sentence of seven years and 10 months imprisonment was imposed, with a non-parole period of four years and eight months. The commencement date for both the term of imprisonment and the non-parole period was fixed at 13 March 2012.

Orders

Orders of the court

Held: Appeal allowed – head sentence is manifestly excessive – sentence set aside – new sentence of seven years and 10 months with a non-parole period of four years and eight months imposed – commencement date of 13 March 2012 fixed in respect to the term of imprisonment and the non-parole period.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition, there is one further matter. That one matter is the error in the calculation of the commencement date of the sentence and non-parole period. That must be rectified. Conclusion I would allow the appeal. I would set aside the term of imprisonment of nine years and 10 months with a non-parole period of five years and 10 months, which was backdated to 30 March 2012. I would impose a sentence of seven years and 10 months with a non-parole period of four years and eight months. I would fix a commencement date of 13 March 2012 in respect to the term of imprisonment and the non-parole period.

Ratio Decidendi

Legal Principle Established

Having regard to the necessity to give appropriate weight to general and specific deterrence, neither the head sentence nor the non-parole period were unreasonable. There could be no criticism of the learned trial judge’s approach to the question of rehabilitation as there was no evidence before the court upon which the learned sentencing judge could make an assessment of the appellant’s prospects. Consideration In R v Place[5] the Court of Criminal Appeal underlined that armed robberies on banks, service stations and shops where weapons or objects that appear to be weapons are used to threaten victims, are prevalent crimes committed against vulnerable persons. Such crimes are frequently committed by persons addicted to and affected by alcohol or other drugs, who commit these offences in order to obtain funds to satisfy their addiction. In fixing sentences for such crimes, considerations of general deterrence and the protection of the public are of particular importance. The court considered that the standard penalty appropriate for these types of armed robberies, committed by these types of offenders, is in the order of six to eight years’ imprisonment.[6] The court said further:[7]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. [5] (2002) 81 SASR 395.[6] (2002) 81 SASR 395 at 429 [100].[7] (2002) 81 SASR 395 at 429 [101]. The court added this qualification:[8][W]e disagree with the suggestion … that the circumstances to which the standard of six to eight years is appropriate includes the large-scale well planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out. Generally speaking, however, in our view a well planned and large-scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies. [8] (2002) 81 SASR 395 at 431 [108]. The approach in Place has been subsequently reaffirmed by the Court of Criminal Appeal.[9] [9] R v Khim [2002] SASC 343; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Hutchins [2009] SASC 275; R v Harradine [2012] SASCFC 103. Adopting the approach identified in Place, I consider the learned sentencing judge erred in fixing a head sentence of 10 years. In my view, this sentence is manifestly excessive. This bank robbery was well planned. It involved the exploitation by the appellant of his inside knowledge of the bank and its operations. The offending was calculated, considered and premeditated. It was not the product of desperation borne of an addiction to drugs or alcohol, where the crime was committed in order to obtain funds to satisfy such addiction. The commission of the crime involved a not insignificant level of violence and what would have been a frightening period of false imprisonment, which has had a lasting effect on Ms Hocking. A substantial sum of money was taken. About half of it remains unrecovered. There is a lack of remorse on the part of the appellant, who has not proffered any assistance to the police in recovering the outstanding proceeds of the crime.